Montana throws down the federal gun-control gauntlet

May 18, 5:45 AMSt. Louis Gun Rights ExaminerKurt Hofmann

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Back in early April, I wrote about the passage by the Montana legislature of Montana House Bill 246, the "Montana Firearms Freedom Act."  HB 246 would exempt from federal regulation firearms, ammunition, and firearm accessories manufactured in Montana, to be sold only in Montana, and not to be removed from the state.  At the time, I expressed some doubt as to whether or not Governor Brian Schweitzer would sign it.  Governor Schweitzer is not only a Democrat, but in endorsing (then Senator) Obama's presidential candidacy, even defended Obama's rather . . . indefensible position on gun rights:

As for Obama, Schweitzer said, “He ain't going to take your gun away. He ain't ever going to take your gun away.”

I am pleased to report that my misgivings were groundless--Governor Schweitzer did indeed sign HB 246 into law on April 15th.  That's the good news.  On the less positive side of the ledger is the fact that the real fight--the one with the federal government, is still ahead.

The feds, of course, tend to look with strong disfavor on attempts to take away from them powers that they are accustomed to exercising--including those powers for which they have no Constitutionally justified authority.  Gun legislation is one such power.  That's right--this is not a Second Amendment issue--nor primarily one, anyway.  What is at issue here is the Tenth Amendment.  For those who need a quick refresher:

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.

And guess what--the Constitution mentions not a word about delegating to the federal government the power of imposing gun laws.  Every federal gun law ever passed has done so under the cover of the rather threadbare justification of the interstate commerce clause--meaning that purely intrastate commerce in firearms is off limits to the feds, even without the Second Amendment.

The problem is that federal courts (including the Supreme Court) display a perverse tendency of determining that just about everything affects interstate commerce, no matter how intangibly.  In the 2005 Gonzales v. Raich decision, for example, in which a grower/user of medical marijuana in California was prosecuted under federal drug laws, despite the fact that California law permitted such usage, the Supreme Court ruled that federal anti-marijuana laws still applied, because there was no way to distinguish California-grown marijuana from that trafficked in interstate (and international) commerce.

In a 2005 case, the U.S. Supreme Court upheld the enforcement of federal laws against marijuana in California, even if the drug is for medical purposes and is grown and used within the state. The court found that since marijuana produced in California is essentially indistinguishable from pot grown outside the state, the federal government must have the authority to regulate both to enforce national drug laws.

A case can be made for a different view of the Montana law, though.

Randy Barnett, the lawyer and constitutional scholar who represented the plaintiff in the California case, said that Montana could argue that its "Made in Montana"-stamped guns are unique and sufficiently segregated as to lie outside federal regulation.

On the other hand . . .

But the federal government has generally argued that it has authority under the interstate commerce clause of the U.S. Constitution to regulate guns because they can so easily be transported across state lines.

In other words, according to the feds, anything that's portable "affects interstate commerce."

The Montana law, by the way, is fairly modest in its goals--I have to admit I was a bit disappointed to find this exception in the text:

     Section 5.  Exceptions. [Section 4] does not apply to:

     (1) a firearm that cannot be carried and used by one person;

     (2) a firearm that has a bore diameter greater than 1 1/2 inches and that uses smokeless powder, not black powder, as a propellant;

     (3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

     (4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.

So--no machine guns without federal NFA hoops to jump through--at least for now.  Probably a good idea, in political terms, but I can't help but wonder what gives the feds any more authority over fully-automatic firearms than they have over any others.

Montana is leading the way, but other states are considering this kind of legislation, with Alaska, Colorado, Tennessee, and Texas having introduced such bills.

Should be interesting.