(Analyst's note: Troubling action here by the federal government.)
The federal government is claiming in court documents demanding the dismissal of a gun-law challenge in Montana the authority to regulate in-state commerce under the Constitution's Commerce clause.
But the plaintiff in the case says the court needs to review that provision in its amended form – since the 10th Amendment, adopted after the Commerce Clause, can be viewed as modifying the Constitution's provisions regarding the regulation of commerce, specifically granting additional authority to states.
The argument is arising in a lawsuit filed in Montana against U.S. Attorney General Eric Holder and others. The complaint seeks a court order that the federal government stay out of the way of Montana's management of its own firearms within state boundaries.
The law provides guns and ammo made, sold and used in Montana would not require any federal forms; silencers made and sold in Montana would be fully legal and not registered; and there would be no firearm registration, serial numbers, criminal records check, waiting periods or paperwork required.
The idea is spreading quickly. Similar plans have been introduced in many other states.
 How Montana's gun-law plans have spread |
Gary Marbut, the chief of the Montana Shooting Sports Association, said the real issue is a states' rights challenge to the power of Washington to regulate "everything under the guise of regulating commerce."
He argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
The government's latest filing in the case demands its dismissal, citing a lacking of "standing" for the plaintiffs and the court's lack of "jurisdiction," as well as the Constitution's Commerce Clause. The government filing argues, "The Supreme Court and Ninth Circuit have repeatedly held that even purely intrastate activities, such as those the MFFA purports to exempt from federal law, do affect interstate commerce and thus are within Congress' power to regulate. As a result, even if plaintiffs had standing and jurisdiction existed, plaintiffs' amended complaint fails to state a claim and must be dismissed.
"The Supreme Court squarely held that the Commerce Clause authority included the power to prohibit the local cultivation and use of marijuana in compliance with California law," the brief continued.
"Moreover, regulating the 'intrastate possession or manufacture' of an article of commerce such as firearms 'is a rational ... means of regulating commerce in that product,'" the brief said.
The Commerce Clause, however, can be interpreted to have been amended by the 10th Amendment, which is part of the Bill of Rights, adopted subsequent to the U.S. Constitution, Marbut explains.
His organization said, "The Commerce clause was amended – by the 10th Amendment. It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. This principle is ancient. Without this principle, laws could not be amended or repealed."
For example, U.S. courts repeatedly affirmed slavery before it ultimately was rejected.
There's no question that the components of the Bill of Rights have authority: Just look at the 1st Amendment, Marbut explained.
Marbut said a 60-day extension for the plaintiffs to respond to the government's motion to dismiss has been approved, and those arguments will be filed in coming weeks.
He also said the job of the court system is to overturn precedents when they are wrong.
"The first import of this response is that the legal game is now on," Marbut said. "There was some concern that the defendants would forfeit the game with no response in an effort to prevent this important issue from being adjudicated properly. We are now beyond that hurdle."
"The FFA concept has created a firestorm of interest nationwide. Lots of people and other states are watching carefully to see how Montana fares in this challenge to overbearing federal authority and to Washington's attempt to control every detail of commerce in the nation, especially including activity wholly confined within an individual state. That level of micro management certainly was not the intent of our founders when they gave Congress limited power in the Constitution to regulate commerce 'among the states'," he said.
The government's brief was signed by Assistant Attorneys General Tony West and Michael Cotter as well as Alexandaer Haas of the U.S. Department of Justice.
The federal government had written gun dealers in Montana, as well as in Tennessee, which also adopted its own version of the same law, that warned against following the state laws.
The letters were distributed to holders of Federal Firearms Licenses.
In the Tennessee case, Carson W. Carroll, the assistant director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, told dealers the Tennessee Firearms Freedom Act, adopted, "purports to exempt personal firearms, firearms accessories, and ammunition manufactured in the state, and which remain in the state, from most federal firearms laws and regulations."
The exemption is not right, the federal agency letter contends.
Montana's plan is called "An Act exempting from federal regulation under the Commerce Clause of the Constitution of the United States a firearm, a firearm accessory, or ammunition manufactured and retained in Montana."
The law cites the 10th Amendment to the U.S. Constitution that guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution. It reserves to the state and people of Montana certain powers as they were understood at the time of statehood in 1889.
"The guaranty of those powers is a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889," the case states.
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