Montana Nullifies Federal Gun Laws

[wphelan]

Here's an interesting bit of news from Montana that you might not have heard yet. Effective October 1st, 2009, Montana says it will no longer recognize federal gun laws concerning guns and ammo that are manufactured and remain in Montana.

Here is the full text of the bill. It's short and to the point: http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm

I'm sympathetic to idea of state sovereignty, so I have to say I like this. However, I imagine Montana will receive some sort of challenge from the feds. Some blogs I've read are comparing this to the Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison, respectively. At the time, they were challenging the Alien and Sedition Acts enacted during the Adams administration.

Personally, I think Montana should be able to pass and enforce this law. Whether it'll hold up, I guess we'll have to wait and see.

[partofme]

I'm really not sure how I feel so far as if I think a state should be able to set their own laws regarding this but really it will boil down to if the federal government wants to put up the resources to enforce it's laws there and to what extent. I'm honestly interested in waiting to see how it turns out.

[wphelan]

Also, according to this blog, there is similar legislation pending in Utah, Tennessee, and Texas.

http://www.campaignforliberty.com/blog.php?view=17935

[partofme]

Also, according to this blog, there is similar legislation pending in Utah, Tennessee, and Texas.

http://www.campaignforliberty.com/blog.php?view=17935

Tennessee is right next door but oddly I haven't heard anything about it. I wonder what it chances are of passing.

[wphelan]

I forgot to highlight the fact that this bill makes exceptions to nullification in the following cases: (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.

You'll notice here that, among other things, Montana won't be nullifying federal gun laws in the case of automatic weapons. I guess they thought they'd have a big enough fight on their hands as it is.

[Greendruid]

There seems to be a "Made in Montana" clause in there. Are there a lot of gun manufacturers in Montana? I would expect that at one time there were quite a few. Not being knowledgeable about guns I have no idea. Or am I interpreting the legalese wrongly there?

[wphelan]

There seems to be a "Made in Montana" clause in there. Are there a lot of gun manufacturers in Montana? I would expect that at one time there were quite a few. Not being knowledgeable about guns I have no idea. Or am I interpreting the legalese wrongly there?

Yes, this only applies to guns and ammo that are made in Montana and remain in Montana. As far as the number of gun manufacturers in Montana goes, I have no idea, but there are definitely some out there.

[wphelan]

Unfortunately, as I've done a little more research on this, it seems there's no chance it'll hold up. No matter where you turn in this country, the commerce clause is there to beat down anything that remotely looks like state sovereignty.

First, there's Wickard v. Filburn.
http://en.wikipedia.org/wiki/Wickard_v._Filburn

The court upheld that Filburn, a farmer, could not grow more wheat than allowed by the Agricultural Adjustment Act of 1938 even though it was for his own personal consumption. The supreme court said that the wheat Filburn grew would affect the price of wheat among the several states because if he had not grown it, he would have needed to purchase it. Therefore, the court ruled that the interstate commerce clause applied to Filburn's personal consumption.

Secondly, there's Gonzales v. Raich.
http://en.wikipedia.org/wiki/Gonzales_v._Raich

This time, the commerce clause was used to prevent Raich from growing medical marijuana in California. Like in Wickard v. Filburn, the commerce clause was used to justify congressional regulation. This time, the court said that Raich's legal medical marijuana grown in California would affect the commerce in illegal markets between the states.

Personally, I think the current interpretation of the interstate commerce clause is crazy and antithetical to the idea of federalism this country was founded upon. It's used to regulate personal use of everything from guns, to marijuana, to wheat. It's out of control, and could probably use a thread of its own.

[Michael]

Excellent thread wphelan!

I certainly agree with the "states rights" principle that this law ought to stand in Montana.

Personally, I think the current interpretation of the interstate commerce clause is crazy and antithetical to the idea of federalism this country was founded upon. It's used to regulate personal use of everything from guns, to marijuana, to wheat. It's out of control, and could probably use a thread of its own.
SCOTUS is entirely unpredictable and totally inconsistent on 'states rights' issues. Decisions always seem to boil down to what is convenient for rightwing politics or big business (usually one and the same, but not always and if there is no 'rightwing' or 'bigbusiness' angle, no one can predict a decision).

Indeed, NOTHING shows Scalia and Roberts up as 'fairweather constitutionalists' more than the commerce clause and/or any issue involving states rights.

[dilettante]

I'm curious as to why Montana or the other states would choose to take this particular path to combating federal legislation. If the the federal government has overstepped its Constitutional bounds, then isn't the proper course to take the matter to the Supreme Court so that the federal legislation can be struck down?

Putting aside the substance and looking just as method, I don't see how the courts could possibly allow a state to nullify a federal law. That was tried in the 1830s by South Carolina in an attempt to nullify a tariff; Congress eventually compromised by lowering the tariff, but they also authorized the use of federal troops to enforce it if Carolina refused to do so.

The Montana legislature isn't authorized to decide whether or not federal laws violate the US Constitution; that's the prerogative of the SCOTUS.

[wphelan]

Out of curiosity, does anyone know how the California state police figured into the federal raids of California medical marijuana stores? Were they helpful, neutral, or totally left out of the loop? I just have a hard time imagining Montana police helping the feds raid Montana gun shops, if it ever comes to that.

[wphelan]

I'm curious as to why Montana or the other states would choose to take this particular path to combating federal legislation. If the the federal government has overstepped its Constitutional bounds, then isn't the proper course to take the matter to the Supreme Court so that the federal legislation can be struck down?

Putting aside the substance and looking just as method, I don't see how the courts could possibly allow a state to nullify a federal law. That was tried in the 1830s by South Carolina in an attempt to nullify a tariff; Congress eventually compromised by lowering the tariff, but they also authorized the use of federal troops to enforce it if Carolina refused to do so.

The Montana legislature isn't authorized to decide whether or not federal laws violate the US Constitution; that's the prerogative of the SCOTUS.

I'd say the reason Montana took this path is because its the only one they have left other than amending the constitution. If a state thinks the federal government has overstepped its bounds and the supreme court has given the okay, what else can a state do? After all, the supreme court is part of the federal government. Bills like this seem to be part of a growing state sovereignty movement that is focused on restoring meaning to the 10th amendment.

Oklahoma has led the way, with its house passing two bills claiming state sovereignty under the 10th amendment. The first bill was vetoed by the governor, but it also included language that said Oklahoma would not accept any federal money. The bill that was recently introduced and passed by the state legislature does not include such language. It says the federal government was created to be an agent of the states, but presently, the states are an agent of the federal government. Here is the declaration at the end of the bill:


THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

THAT a copy of this resolution be distributed to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state's legislature of the United States of America, and each member of the Oklahoma Congressional Delegation.

According to http://www.tenthamendmentcenter.com/2009/02/23/state-sovereignty-resolutions/ similar bills are under consideration, or recently have been, in about thirty-five states. None of these bills has been signed into law yet, but I think there is a good chance we will see it happen fairly soon.

Of course, most of these bills are toothless declarations, which sound nice to those with a sympathetic ear, but change nothing. This Montana bill is more explicit and, perhaps, could have some teeth. It's more explicit about its position than the California is about medical marijuana, and Obama has halted those raids. I suppose every movement has to gain foothold somewhere. Maybe this is it.