Posted on 03/18/2013 11:06:00 AM PDT by Nachum
Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act. To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law. The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution. The federal district court ruled against the MSSA.
On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.
The lawsuit’s importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.
(Excerpt) Read more at cato.org ...
This is a sovereign state acting v. “Robert W. Stewart, Jr., a convicted felon”
That shouldn't matter. If Congress's power under the Commerce Clause extends to outlawing homemade machine guns for individuals, it also extends to state laws governing such matters because of the Supremacy Clause.
Just doesn't bridge the gap between theory and practice, does it?
Maybe. They had a chance with the Raich (sp?) case and passed.
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