Gun Rights Groups Plan State-By-State Revolt

(CBS)

Gary Marbut isn't aiming to eliminate federal gun laws. He just wants to make them much less relevant.

Marbut, president of the Montana Shooting Sports Association, is one of the leaders of a new grassroots movement that's seeking to invoke the principle of states' rights -- including states' own authority to regulate firearms -- to thwart what he and his allies view as an increasingly overreaching federal government.

Politicians in Washington have "assumed power that many of us believe was not authorized under the limits of the Constitution," Marbut said in an interview with CBSNews.com last week.

This modern-day federalist revolt began with a Montana state law recently signed by Democratic Gov. Brian Schweitzer. 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.

The law, which does not permit the manufacture of certain large-caliber weapons or machine guns, takes effect on October 1, 2009.

Montana is hardly alone: the Tennessee legislature has approved a nearly-identical bill, and others are pending in Texas, Alaska, Minnesota, and South Carolina. About 10 other states, including Florida and Arizona, are reportedly considering similar measures, and a Colorado state legislator has publicly pledged to follow suit.

Tennessee Gov. Phil Bredesen, a Democrat, said on Friday that he would let the bill become law without his signature. (Bredesen vetoed one gun rights bill last month; the veto was overriden.)

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."

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.

But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.

The states "never gave the federal judiciary permission to erase the Tenth Amendment from the Constitution," Marbut said. "We need to reacquaint them with the Tenth Amendment."

That will be no trivial task. In a letter last week to the Tennessee House of Representatives, Gov. Bredesen said the state's version of the bill had "clear constitutional deficiencies," and even scholars who tend to favor gun rights believe it will meet a frosty reception if it ends up in court. (A spokesman for the Brady Campaign did not respond to an interview request.)

"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, said in an interview, referring to the backers of the gun rights bills. "The Supreme Court has strong precedents that would render this statute invalid."

Two doyens of gun rights advocacy agree. David Kopel of the free-market Independence Institute in Golden, Colo., says supporters would be "foolish" to expect to win. Randy Barnett, a Georgetown University law professor, believes the federalism laws won't "stand up to scrutiny" and has been suggesting ways Texas and Utah could amend their pending bills to survive judicial review.

Barnett should know: he was a lead attorney in Gonzales v. Raich, in which the U.S. Supreme Court rejected similar claims involving medical marijuana. Angel Raich is a seriously ill patient who wanted to grow her own medical marijuana, which state law permitted her to do. But a federal law that the Justice Department claimed was based on Congress' constitutional authority to "regulate commerce" made it illegal.

In a 6-3 opinion written in 2005, the court said that someone growing marijuana for her own use could have a "substantial effect on interstate commerce" and therefore was able to be regulated by the federal government. (In an impassioned dissent Justice Clarence Thomas said that: "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 in the form of liberalized gun regulations.

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."

Marbut says he plans a test case in federal court that would use the example of a Montana resident without a federal firearms license seeking to manufacture a made-in-Montana gun. "We can get this clarified," he said. "I do not want any Montana citizen to face federal prison time."

Even though this case is a legal long shot, federalism fans say it's worth pursuing. "It's great PR for us," says Alan Gottlieb, founder of the Bellevue, Wash.-based Second Amendment Foundation. "It's keeping gun owners across the country excited and energized. It's a way of taking the offensive when normally gun owners are on the defensive."

The stakes are higher, of course, than just gun rights. If the judiciary somehow breathes new life into the Tenth Amendment, and curbs federal regulation of commerce taking place entirely within a state, that would let states bypass innumerable federal rules on everything from pharmaceuticals to children's toys.

"It's a response to federal overreaching," Gottlieb says. "A lot of people supporting this cause couldn't care less about firearms. They don't want the Obama administration dictating what states can and can't do. It's a pushback against federal authority in general."

In other words, if the state-by-state efforts to enact laws citing the Tenth Amendment prove to be legally futile, they might still raise the visibility of the topic of state autonomy. And a host of governors signing laws expressing their support for the Tenth Amendment might make the Obama administration view political realities a little differently.

Says Lund, the George Mason professor: "To the extent they're working to get people to think for themselves about the Constitution, that's a good thing and could lead to some good results."

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Declan McCullagh is a senior correspondent for CBSNews.com. You can e-mail Declan at [e-mail] .

[averagejoe22]

schoollord wrote: there are so much less gundeaths in other countries like Canada,Australia,England ect... I named those because they are the big Countries that would seem to have a high population but what he fails to say is that Australia has a population of 28Mill,Canada has a population of 33mill,england has a population of 60 mill the united states has a population of 300Million and thats not including the 10s of millions that come into this country (USA) illegally every year that dont have a SS number and arent accounted for with all of the rest of the american citizen POP. Not only that but New Zealand doesnt have a weapons ban They might have certain weapons banned but not all so how does your story weigh in against the NRA when it is just a bunch of mumbo jumbo thrown into a paragraph to make people think that there is so much more crime here than there is in the rest of the world well guess what buddy, some of us travel and see other places and there is no other place i would rather be in the world than USA guns arent the only weapons that hurt people or help suicides maybe we should ban kitchen knives, cars and roof tops as well.. Hell why dont we just put eveybody in the USA into staight jackets and tape them all to a chair so we wont hurt ourselves huh!? This country was made independent by the use of firearms and our good citizens that were fighting from there own beds with there children by there sides. There is no way i will allow anyone on this planet to take my guns from me no matter what bill was passed and how many people voted for it. And i think i speak for all of my fellow americans that believe in our countries freedoms and are willing to fight and protect our citizens reguardless of what there oppinion on our lifestyles is.. Its time to get real and focus on the real problem a kid gets caught with 32 grams of cocaine and gets 15 years, a kid gets caught with and illegal gun on the streets mostly a gang member and gets a year. Do you see where im going with this our agenda is backwards and inside out and the law is doing is blaming us law abiding citizens but what they really have to do is blame there own system then they wonder why there are more people interested in illegal guns because they are less of a hassle and nobody will take them away what we have to do it change our laws to benefit our communities in a positive way not by taking away the rights of U.S. citizens who are following the rules i agree on tightening up the the laws on illegal guns not on legal ones..

[Rightshift]

"Federal Precedent" that limits the 10th Amendment and they claim "authority" under the "Commerce Clause"... you mean Wickard v. Filburn? The case in which the decision on the face of it was clearly contrived in an Australian Petting Zoo in a court stacked by FDR to benefit his agenda? Which legal scholars say was a bad decision given the stretch with which the "Justices" went to achieve that conclusion... The one the Fed Gov't points to as their tacit authority of "regulating" commerce? That Federal precedent?

What I find amazing is the cacphony of kangaroo cases used as "precedent" to support the Federal government's assertion of "commerce regulation" as the catchall phrase for imposing itself on the states. So explain to me how a Federal Judiciary, which has been clearly co-opted by those who instead of upholding the law, impose personal political opinion can be taken seriously in this discussion, or have any authority within the confines of any state, if that state sees fit to exercise its 10th Amendment SOVEREIGNTY... not just rights? My favorites to this point are the cases decided by the existing crop of nitwits on the SCOTUS who cite "foreign law" as their basis for a decision knowing full well that under Constitutional scrutiny their decision looks more like an imposition of law by "Judge Dredd", rather than American Constitutional juris prudence...

Bastiat was correct... ?Sometimes the law defends plunder and participates in it. Sometimes the law places the whole apparatus of judges, police, prisons and gendarmes at the service of the plunderers, and treats the victim - when he defends himself - as a criminal.?

[seataffer]

violent crime rates, metro areas, cities, states

http://www.morganquitno.com/cit07pop.htm#25\

http://www.morganquitno.com/cit07pop.htm#METRO

link for 2007 follows, st louis 'slipped' to #2 behind detroit; but 2005 & 2006 I beleive st lou led the pack, highest violent crime rate.
.. Note pro gun St Louis with shall issue ccw, in 2007 had a higher murder rate than Wash DC, 40 to 31. Detroit with shall issue ccw also had a higher murder rate than DC, 46 to 31.
MORE GUNS MORE LIES.

http://en.wikipedia.org/wiki/United_States_cities_by_crime_rate

[spedgenius]

take a look at http://en.wikipedia.org/wiki/List_of_countries_by_murder_rate

there apears to be an interesting trend in which the highest homicide rates for the western hemisphere are located nearest the equator. in fact it is a striking fade from dark blue to light blue as you move away. coincidently the darkest areas on the western henimisphere is also where the drug trade is most prevailent and violent. this could explain the diparaging difference between the west and east. Or it could just be the heat that drives everyone mad.

[akia1]

find out if guns really cause crime

http://montego.roughwheelers.com/gun_cam.html

[akia1]

personally I don't see why this is necessary except to force the issue in the courts.

I've NEVER seen a gunshop with the sales counter in 1 State and the customer floor in another State so ALL over the counter sales would be in intrastate commerce and the feds would be irrelevant as far as the retail purchase.

one thing is interesting... it was signed into law in Montana by a Democratic Party governor... much as the Mississippi concealed carry law was introduced by a Democratic Party legislator... in the South and in the West the G.O.P. doesn't hold a lock on Conservative Thought.

but a Mississippi Democrat is more conservative than a NY Republican!

[mattcat25]

Republicans are continuing to ratchet up a needless frenzy amoungst grossly obsessed Gunphiles.

[gunownerdan]

Obama and his administration are the ones who keep saying they want to ban guns. And by no means must you be a republican in order to understand the importance of our basic constitutional rights!

[Jayl76]

That is "Hoplophile". As one who loves guns, I am a hoplophile, while you, who are obviously frightened of them, are a hoplophobe.

[IrishWench01]

I'm thinking that the idea of the states excerting their rights over gun ownership, needs to progress to other areas of states rights to run their own affairs and communities per the citizens votes. States and communities have lost their power to oversee there communities in the way in which the voters choose. Providing civil rights are not being thrown aside such as in the days of slavery, etc.

[schoollord]

gunownerdan said "No "tough gun laws" on earth are going to stop criminals from being criminals."

But not all gun-related deaths are caused by criminals. As a matter of facr, most of them aren't. Most mass shooters, workplace shooters, domestic violence shooters, etc. are legal gun owners...like YOU!~

[gunownerdan]

If you shoot and kill someone and it's not in self defense, you are a criminal. It's really not hard to understand this fact!

[schoollord]

gunownerdan said "Schoolliar, Suicide is a cultural problem, suicide is not caused by inanimate objects. Many wonderful studies have shown anti-depressants may in fact increase suicidal thoughts. Maybe your time would best be spend focusing on this?"

Six out of every ten suicides are done with a gun and NOT anti-depressants. That's why I focuse on guns. Guns are used in more suicides than all the other weapons and methods COMBINED. Guns are at the epicenters of our homicide and suicide problems. Pinochios like YOU should not accuse anyone of being liars.