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…and individual States are coming to the fore as protector and guarantor against incursions by the Federal government on individuals’ Second Amendment rights.

Setting the stage, has been the recent Supreme Court decision that the 2nd Amendment is indeed an individual right, plus a flurry of State laws designed to protect individual American’s Second Amendment rights from untoward local laws, by pre-empting such local laws with State laws spelling out citizens’ rights. On the heels of this, there is now a groundswell on the part of individual States to pass State laws that protect individual citizens and their Second Amendment rights from encroachment by Federal codes, statutes and regulations, and the agents who enforce them. These new State laws do so by reminding the Federal Government where its authority in this regard comes from, and its explicit limitations.

Montana was first, with the Firearms Freedom Act, which exempts Montana-made guns from Federal taxation, registration, licensing, marking or record-keeping requirements as long as those guns stay in Montana. Utah adopted similar legislation last session. Tennessee, Arizona, Idaho, South Dakota and Wyoming have done so as well, asserting it is an exercise of the authority reserved for them under the 10th Amendment to the U.S. Constitution. When some 14% of the States in the Union pass such legislation, with a reported 20 additional States considering legislation to follow suit, it catches Uncle Sam’s attention.

First Court Test Underway
Montana’s law is already in court in Missoula, after the MSSA (Montana Shooting Sports Association) filed a lawsuit last year when BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) warned that gun dealers were still bound by Federal regulations relating to all firearms. MSSA wants a court declaration preventing Federal agents from enforcing Federal gun laws on Montana-made, Montana used firearms. “The American people and the several States created the Federal government, and they now want the Federal government constrained to the proper role for which it was created,” said Gary Marbut, president of the MSSA. “This is a forward step for freedom that has always been at the heart of who we are in America.”

Alabama, Idaho, South Carolina, South Dakota, West Virginia and Wyoming promptly joined in an amicus brief filed by Utah Attorney General Mark Shurtleff in the Montana case, arguing that the Federal government has no constitutional authority to regulate firearms manufactured and sold within their State borders. The brief asks the court to recognize that “the 10th Amendment is not an empty promise to the States, but a vital guarantor of rights retained by the States, including the right to regulate purely intrastate activities.”

“These [State] laws are intended to allow their respective citizens to engage within their States in constitutionally protected activity without burdensome Federal oversight and regulation of their solely intrastate activities,” AG Shurtleff wrote. “With few viable avenues to assert their political will,” Shurtleff’s brief says, “States that have enacted laws similar to Montana’s Firearms Freedom Act are clamoring to restore the proper balance between State and Federal government power.” The States argue that the U.S. Constitution gives them the right under the 10th Amendment to control activities within their State’s borders, and they want the authority to do so codified under the various “firearms freedom acts.”

The Department of Justice has asked the court to dismiss the lawsuit, saying States can’t exempt themselves in any way from national gun control laws. The agency says that Federal gun control is a “valid exercise of Congress’ commerce power under the Constitution.”

Symbolic or Serious, the States Mean Business
Although some of the individual State’s new “leave us and our guns alone” laws seem largely symbolic, those of Wyoming have real teeth: Wyoming’s Firearms Freedom Act says, “Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.”

The Supremacy Clause
The idea that the higher up the food chain an agency is, the greater the authority it has, is often only a phenomenon arising from the fact that the higher up the food chain, the greater resources an agency may well possess to enforce whatever authority they do legitimately hold. However, Article VI, Clause 2 (aka the “Supremacy Clause,” aka the “800-Pound Gorrilla Clause”) does indeed establish the Constitution, Federal Statutes, and U.S. treaties as “the supreme law of the land,” recognizing these as the highest form of law in the American legal system, and mandating that State judges uphold them, even if State laws or constitutions conflict. The Supreme Court even found in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), that even when a State law is not in direct conflict with Federal law, the State law can still be found unconstitutional under the Supremacy Clause if the “State law is an obstacle to the accomplishment and execution of Congress’s full purposes and objectives.” However, all Federal codes, statutes and regulations must still pass their own tests of constitutionality, even if asssumed “supreme” at their writing. And it is a safe bet that many Federal laws in the form they may have morphed to, would be quickly repealed by their original authors.

The Commerce Clause
The basis for much Federal authority not specifically spelled out in the Constitution comes from Article One, Section 8 of the U.S. Constitution (aka the “commerce clause”), which States that the “Congress shall have the power to regulate commerce among the several States….” and with Indian tribes and foreign nations. This clause is the legal basis for all Federal regulation of business activity that crosses State lines and matters relating to such commerce. Seems straightforward enough in principle, but in Wickard v. Filburn (1942), the Supreme Court expanded the original interpretation of the commerce clause to cover intrastate economic activity that was said to “affect” interstate commerce: Wickard grew wheat for his own consumption but the court reasoned that the wheat locally consumed could, theoretically, have been sold in interstate commerce; So when Wickard “withdrew” that wheat and consumed it, output and prices in interstate commerce were affected. Hence the Feds could regulate locally grown wheat and the legislation that prescribed this was Constitutional. Some Constitutional scholars have said that the Court’s reasoning in Wickard laid waste to two original and important Constitutional principles: that the States, not the Feds, can regulate their own internal commerce, and that the Federal Constitution embodies only limited and clearly enumerated powers. Wickard gave credence to the idea that the Feds could now regulate virtually any economic activity, since almost any goods or services produced and consumed locally could, at least theoretically, affect interstate commerce.

Ah, The Bill of Rights
The 10th Amendment, penned after both the Supremacy Clause and the Commerce Clause, States that “The 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 timing of the 10th Amendment is significant here, as the entire Bill of Rights was designed to quickly fix what were deemed to be dangerous flaws or omissions in the original document. At the time, even those who favored the Federal principle feared replacing a totalitarian monarchy with a totalitarian democracy, and the first set of Amendments comprising the Bill of Rights was designed to guarantee State and individual rights, or as one of the original framers put it, “put this monster in chains.” So strong were anti-federalist misgivings at the time, it is doubtful the Constitution would ever have been ratified by the States without the inclusion of the Bill of Rights. At any rate, Supreme Court cases already decided such as Wichard, despite their apparent conflict with other Constitutional provisions, will probably have bearing on the court challenges that are sure to come, of these new State Firearm Freedom Acts.
Federal court challenges can be expected to be hard fought, as the Federal juggernaut has a lot to lose. This battle is going to be interesting to watch, as court rulings in this matter will have implications well beyond the case in point. If the courts rule in favor of the States, saying that this intrastate-only activity, of making and using firearms only within a given State, is beyond the purview of Federal activity, the implications of such a precedent could be far reaching.

Would a ruling in favor of the States then mean, that other activity which takes place only within a State and has no interstate connection can no longer be a matter of Federal interest—activities such as earning income, manufacturing booze or pharmaceuticals? Wickard already decided specifically on the matter of crops, but adjunct to this is an announcement this week by the Justice Department that they will not attempt to enforce drug laws on medical marijuana in States that have passed laws permitting it. Would this then mean that Federal authorities would not enforce Federal gun laws where they were at variance with a State’s “private firearm” legislation? There are uncountable Federal laws and their ensuing regulations on the books that regulate everything from beekeeping to banking, which could all be affected by rulings in favor of these new State Firearm Freedom laws.

The rather tenuous connection to interstate commerce of one farmer growing his own wheat for his own consumption makes it seem likely that Federal authorities will justify their jurisdiction in this case by arguing that they could “assume” inevitable interstate leakage of such “private” intrastate arms. The basis of assuming that something is likely to happen, is already ensconced, for instance, as the premise that after a certain time a kidnapped person can be assumed to have been moved across State lines, so Federal authorities can get involved.

How Far the Reach Without Stretching?
How narrowly the courts will interpret the “interstate” connection may prove to be a lynchpin of Federal challenges to these new laws. Wickard already seems like a stretch to many Constitutional scholars, so how tenuous an interstate aspect would a court deem as qualifying for Federal jurisdiction in the cases at hand? Building a gun from local materials but in a shop connected to an interstate power grid? Building a gun from local materials in a shop with Khyber Pass hand tools, but buying those local materials with Federal Reserve notes? Or would you have to use local materials, your self-made hand tools and make any purchases with State-minted money [yes Virginia, the States are Constitutionally permitted to make their own money as long as it is from gold or silver, counterfeit money such as Continental Dollars and Federal Reserve Notes being reserved for use at the Federal level].

It could get complicated. The courts all the way up to the Supreme Court strive to operate within a zone of reasonableness, measuring their decisions against the letter and intent of the Constitution. Just where that template of reasonableness will be superimposed in this matter could be pivotal.

Once it reaches the Supreme Court, as it surely will, of equal importance will be whether the then-sitting Court regards the Constitution as the benchmark for judging all laws, or as a “living document” subject to their Monday-morning quarterbacking and bench-made legislation.

There are many principles, and many nuances, at play here—any one of which might prove pivotal enough to decide the fate of these new State laws that are predicated on the inherent limits of Federal power.

Any time there is a joust in the arena where the individual rights of Americans are the prize, in this case our Second Amendment rights, it is of interest. Thus far we give an Atta Boy to the State legislators who have had the courage and foresight to take up this cause.

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