Montana Gun Suit Challenges Federal Authority

(AP)

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.

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail]. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[CCBC_Victoria]

Montana is challenging the federal government's authority to regulate firearms that are manufactured and sold within their boundaries. The 10th amendment states 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." The other side states that the Commerce Clause grants the government authority to regulate anything that may have an impact on interstate commerce, meaning that if the guns are used outside the state, they have the authority to regulate it.

This court case seems as though it will have an interesting impact on the balance between the state and federal government, which is at the root of federalism. The state of Montana has an interest to regulate what they manufacture and sell, while the United States government has an interest to regulate commerce that involves more than one state. I think that in this situation, the federal government will win out because the commerce clause asserts their authority to regulate Montana's guns.

[Eskiegirl302]

The Second Amendment: A well regulated Militia being NECESSARY to the SECURITY of a FREE STATE, the right of the people to keep and bear arms, SHALL NOT BE INFRINGED!

It says what it says and the federal government CAN NOT INFRINGE upon those rights. As far as I am concerned, the Second Amendment is the most important clause in any of the founding documents - bar none. I will be far more successful protecting my First Amendment rights with a gun, than I will trying to protect my Second Amendment rights with eloquent dialogue.

This issue appears obvious to me. Those who disagree appear to be stubbornly resistant to logic. I do not deny that they are equally sincere in their interpretation of the facts, however I feel they are hopelessly myopic in this regard.

The First Amendment protects your right to say any malevolent thing you want, even if you ideas meake me nauseated enough to develop a bleeding ulcer. To the dismay of the anti-freedom movement, The Second Amendment works the same way. The Second Amendment is enumerated within the Bill of Rights. That means that I have A RIGHT to keep and bear arms and I am not obligated to obtain government permission to do so.

You may not like the fact that I carry a gun; it may make you extremely nervous; you may toss and turn all night worrying about the fact that I carry a gun. Too damn bad. My right to carry a gun for self-defense, or just for my pursuit of happiness is not predicated on whether or not you approve of my activity.

Even if the number of children killed by guns each year were ten times the fictitious touted by Sara Brady's propaganda squads, it would not justify the violation of my rights because of the heinous acts of others.

Handgun control (or whatever they're calling themselves these days) believes that if "just one child" is saved by gun control laws, then the infringements of our rights miraculously become worth it. This is specious reasoning because it sacrifices all of our rights for a utopian impossibility. Even if we could eliminate all of the guns (which is as likely as preventing teenagers from discovering sex) it would not prevent children from dying at the hands of brutal attackers.

Hopefully this debate will will remain in the purely theoretical realm. If it doesn't the people WITH guns are certain to prevail over those without.

[M0kfe]

To Gifford Rainier . . .

Constitutionally, any elected county sheriff may prohibit federal law enforcement agents from working in his/her county.

[DoubleHappiness88]

Who knew America was a nation of *constitutional experts*?

I find it strange, however, that these *constitutional experts* have so little knowledge of the English language. Their arguments and language seem more like that of citizens from barely-literate third world nations.

Is it possible most attended school in Alabama? Perhaps they are only parroting what they heard from the N.R.A. and/or the K.K.K.

[Overthair]

How asinine..all this bickering over the peoples rights, the States rights, the Constitution says this or it says that. The issue is dead, it has been dead since 9-13-1914. Look at it this way...you have no money and you cannot own property. You call that liberty? You call that freedom? We are slaves and we will be slaves until the moneychangers are whipped out of the temple.

http://www.amazon.com/dp/0446549193?tag=lewrockwell&camp=14573&creative=327641&********=as1&************=0446549193&adid=1ERE0VE5G3RWSYJXHYX9&

[wfields58]

I'm not here to rag on anybody, and I haven't the time to read all the comments. I do wish we could have a civil discussion about this without resorting to calling others names in order to make ourselves feel superior (only in our minds). What I do wish to say is that I hope Montana wins! I believe the Supreme Court has already ruled this year in the Heller vs. Washington D.C. decision that this is an individual right.

However, this is a political argument, and unfortunately, the party that is able to seat enough judstices on the Supreme Court at a particular time is the one that will win at that time. I hope that never happens, because it seems to me to be an inalienable right of human beings to defend themselves. And, if disarmed, we could not defend ourselves. Not against criminals, not against the state. I also don't wish to give my life for this right. But I might. And what people may not understand is that this is a primary reason that the Second Ammendment exists. And there are many who would not disarm because a tyrannical government said to do so. It would be a tyrannical government that would do so. Do NOT tread on me!

[Gifford Rainier]

I wish the Montana law would be amended to state that any federal agents who try to enforce the illegal federal laws in Montana will be guilty of a felony and be imprisoned for life and that the Montana National Guard and Montana State Police have full authority, including the use of lethal force, to arrest and detain any federal agents violating the rights of Montana's citizens.

[error10]

Even the Department of Justice knows the Second Amendment is an individual right, not a right of states or of militias. See http://www.usdoj.gov/olc/secondamendment2.pdf for the extensive historical and legal proof leading to this conclusion.

[Hosheen]

A movement to strengthen State's Rights is a good thing. It is actually part of the checks and balances of the American system. The federal government has been riding over the individual and state's rights for far too long. If nothing is done to stop this, I predict some states are going to secede and this time, it will stick. But maybe that would be a good thing, too.

[Carl_in_Chicago]

You folks arguing that the people's right to arms is exclusively predicated upon their service in a state-organized militia are a little behind the times.

A majority of the US Supreme Court disagrees with you. Eighty percent of Americans disagree with you. The natural right of self-preservation disagrees with you.

Why is it so much fun to kick dead horses?

Get over it.