Montana Gun Suit Challenges Federal Authority

http://www.cbsnews.com/blogs/2009/10/01/taking_liberties/entry5356494.shtml

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.