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Posted on 10/02/2009 5:08:05 AM PDT by marktwain
A Montana lawsuit filed on Thursday challenges federal authority to regulate guns manufactured and sold within the state, an argument that would effectively invalidate federal firearm laws in Big Sky Country if adopted by the courts.
The lawsuit arose out of a state law signed by Democratic Gov. Brian Schweitzer that took effect on October 1. It says that firearms, ammunition, and accessories manufactured entirely inside Montana are not subject to federal regulation, including background checks for buyers and record-keeping requirements for sellers. They would remain subject to state regulation, and machine gun manufacturing is not permitted.
This is part of a new grassroots movement that's seeking to invoke the principle of states' rights -- including states' authority to regulate firearms within their borders -- to thwart what backers view as an increasingly overreaching federal government.
One of the plaintiffs is Gary Marbut, president of the Montana Shooting Sports Association. The complaint (PDF) says Marbut "wishes to manufacture and sell small arms and small arms ammunition to customers exclusively in Montana" without complying with federal laws but has been told by the Bureau of Alcohol, Tobacco, Firearms, and Explosives that the federal laws "continue to apply." (See related CBSNews.com story about the Obama administration's position.)
While this federalism-inspired revolt has coalesced around gun rights, the broader goal is to dust off a section of the Bill of Rights that most Americans probably have paid scant attention to: the Tenth Amendment. It says that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
"We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state," said Marbut. "It's time for Montana and her sister states to take a stand against the bullying federal government, which the legislature and governor have done and we are doing with this lawsuit."
The case was filed by Quentin Rhoades of Sullivan, Tabaracci, and Rhoades in Missoula, Mont., with the support of the Second Amendment Foundation. The U.S. Justice Department, which will be defending the suit in court, did not immediately respond to a request for comment on Thursday.
Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been "delegated," and the U.S. Supreme Court in 1918 confirmed that the amendment "carefully reserved" some authority "to the states." That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept "all powers not expressly and particularly delegated" to the federal government.
More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce. In the 2005 case of Gonzales v. Raich, for instance, the Supreme Court ruled that a person growing marijuana for her own medicinal use could have a "substantial effect on interstate commerce." (In an pointed dissent, Justice Clarence Thomas wrote: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.")
One possibility is is that the composition of the U.S. Supreme Court has changed enough in the last four years to make a repeat of Gonzales v. Raich unlikely; on the other hand, some justices that might have been sympathetic to a sick mother using medical marijuana may not be as willing to embrace federalism if it means zapping gun laws that have been around for over a generation.
Another possibility is that proponents can argue -- as Marbut plans to do -- that this case is different. In Gonzales v. Raich, the Supreme Court noted "it is not feasible to distinguish" marijuana that's "manufactured and distributed interstate and controlled substances manufactured and distributed intrastate." The Montana law, by contrast, says that all state-made firearms "must have the words 'Made in Montana' clearly stamped on a central metallic part, such as the receiver or frame."
Still, the case amounts to a long shot squared. Perhaps, in a slightly different universe where the Tenth Amendment were not virtually ignored by courts, the plaintiffs would stand a good chance of winning. In this post-Raich reality, even pro-Second Amendment types are skeptical.
"I think they probably should succeed and I think they probably won't," Nelson Lund, a professor of constitutional law at George Mason University who specializes in the Second Amendment, told me over the summer. "The Supreme Court has strong precedents that would render this statute invalid."
But this is as much as political maneuver as it is a legal one. Even a courtroom defeat would galvanize the burgeoning federalist movement and could lead to more states adopting sovereignty and Tenth Amendment resolutions, a trend that has been documented by the Tenth Amendment Center (and anticipated by forecaster Gerald Celente). If enough state governments vote to resuscitate the Tenth Amendment, even federal courts eventually may pay attention.
I was asking about this case on FR just a couple of weeks ago.
Thanks for posting.
Interesting. Wasn’t Tennessee going the same route? I thought I read where Tennessee law went into effect & they received a letter from BATF saying to the effect that they WERE STILL under “Fed Control” & gun sellers were warned NOT to get swayed by the new law & fall into an illegal situation. I wonder in Montana will be the next to receive such a letter. Maybe it will be delivered by an APF officer homebased in Hardin. I know Montana is one of the most heavily armed states in our nation. This is a story well worth keeping track of, thanks for posting.
Thats right TN went the same route as MT and another state(s?) which I forget right now. Itll be great to see this suit won. Barrett is located in TN not far from me. :D :D
I wonder what BATFEces would do if they got their letter back in an "odoriferous" condition?
Ping
God give Montana success! (they need it in something)
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Additional Resources:
Tenth Amendment Chronicles Thread
Tenth Amendment Center
The Right Side of Life/State Initiatives
Sovereign States
Find Law(Brief narrative on 10th Amendment)
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Federal courts have an inherent conflict of interest in hearing this case anyway. If they find for the states, then well and good, but if they find for the feds, they’re finding for their paymaster, so their ruling would be somewhere between suspect and moot.
A friend of mine, who lives in Montana and happens to be liberal, an outdoorsman, hunter, fisher, etc., thinks this has much to do about nothing. He can’t get it through his head that the feds are trampling on their, and our, rights. Hopefully, he, and his ilk, will come around before it’s too late.
Pretty much the way I see it but I also don't see a better alternative. Arbitration? Mediation? I'm certain the Founders wrestled with this question themselves and I'm not a good enough student of history or the federalist papers to understand the rationale. It could be there just wasn't a better alternative. It MAY be they felt the states had enough retained powers they could fend off any encroachments by the federales. BUT that was before the 14th, 16th and 17th amendments, to name a few "official" adjustments to the original document. Same with the "supremacy" and "commerce" clauses. The Founders may have felt the states had enough power to tell the feral government to pound sand if they got out of line? And so it goes...
I'm not so sure and I certainly wouldn't want to bet the future of the nation on libtards seeing the light. There have been those with us probably since the beginning of the species who will always want a "king" to rule over them and fight their battles for them. Sad but true. I suppose the irony is, conservatives would make better kings but for the most part don't have the desire to rule over others -- or so it seems. Libtards on the other hand are a different breed of cat. Teenagers in suits I like to call 'em. The simplest analogy that works for me is libtards are like rebellious adolescents towards their parents(conservatives). It's a love/hate thang...
California received a letter like that regarding MJ but they ignored it, so should Tenn and Montana.
Meanwhile,, the fed/guv kisses an ILLEGAL ailiens axx just for on the job training and enjoyment of it.
Yeah, I know. I wrestle with that too. An honest federal judiciary, maybe? A multi-judge panel with federal judges, judges from the state in question, and judges from other states?
After pondering on this a little more, I suspect the passage of the 17th amemdment probably did as much to create a feral judiciary, the SCOTUS in particular, as much as anything else. When senators were essentially appointed by the states, they were a lot more beholdened to the state and its interests. The senate approves feral judges. Repealing the 17th might actually go a long way in reforming the judiciary? The chance of THAT happening in the current PC environment...
Excellent point. I have always loathed the 17th but its contribution to the “federalization” of the judiciary is an aspect that hadn’t occurred to me before. Why do you think the repeal of the 17th would be un-PC? I agree it might not be popular, but why the connection with PC?
I probably didn't express my thought on the subject very well. Certainly wouldn't be the first time. ;^)
Anyway, and IMHO, in the current touchy-feely environment of the nanny state, anything that might recoup some of the states' powers at the expense of the nanny state would be trashed by the Dims and their lap dogs in the dinomedia as going back to the days of Fulbright and Wallace; when the states still had a modicum of internal control of their own destinies. You can probably already hear the uproar - if you listen closely.
IOW, it would be majorily UN-PC for the states to reassert their Constitutional powers. Feral judges being approved by a senate made up of senators on a fairly tight leash from the individual states might look a whole lot different than it does now. At least the states would have a good deal more influence in the process. I still may not have been able to make my point but that's about as good as I can do. I am truly NOT a wordsmith.
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