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Montana Gun Suit Challenges Federal Authority

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 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.

Declan McCullagh is a correspondent for He can be reached at You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
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