Handguns from Freedom Arms in Wyoming

The federal government is arguing in a gun-rights case pending in federal court in Montana that state plans to exempt in-state guns from various federal requirements themselves make the laws void, because the growing movement certainly would impact “interstate commerce.”

The government continues to argue to the court that the Commerce Clause in the U.S. Constitution should be the guiding rule for the coming decision. The argument plays down the significance of both the Second Amendment right to bear arms and the 10th Amendment provision that reserves to states all prerogatives not specifically granted the federal government in the Constitution.

WND has reported both on the lawsuit filed by Montana interests seeking affirmation of the 2009 Montana Firearms Freedom Act as well as the growing movement that has seen six other states, Wyoming, South Dakota, Idaho, Utah, Tennessee and Arizona, follow with similar laws.

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The movement worries the federal government. In a brief filed this week in support of government demands that the case be dismissed, posted on the website for the Firearms Freedom Act, attorneys wrote, “Because an illicit market for firearms exists nationwide, a ‘gaping hole’ in federal firearm regulation would persist if firearms made and sold in Montana were exempted from compliance.”

The brief continued, “Moreover, six states have followed Montana’s lead in enacting ‘virtually identical’ Firearms Freedom Acts, and an additional 22 have proposed similar legislation. … The fact that up to 29 states may essentially ‘opt out’ of certain federal firearms laws would have an indisputable effect on interstate commerce.”

Plaintiffs in the lawsuit previously argued that the Commerce Clause, in the original Constitution, later was modified by both the Second Amendment and 10th Amendment.

In a brief submitted on behalf of Montana lawmakers who wrote and adopted the law, attorneys argued that the state law simply allows Montana citizens to “engage within their state in constitutionally protected activity without burdensome federal oversight.”

“It is questionable whether Congress’ authority under its conditional spending power or its power to regulate interstate commerce extends to MFFA firearms,” the argument continued.

“Where a power had not been granted exclusively to the national government or, where generally granted, had not been exercised … the states retain freedom to legislate,” the lawmakers argued.


Montana statehouse

“There is nothing in the MFFA that should offend the powers of the national government,” they said. And the lawmakers argued that the Constitution’s supremacy clause has no impact because “only laws made in pursuance of the Constitution constitute the supreme law of the land.”

In this case, the state is addressing intrastate commerce under its authority under the Second and Tenth Amendments, the brief argued.

Not so, said the feds.

Not only do the plaintiffs lack standing to bring the case, Congress’ authority to regulate interstate commerce is extended to anything that affects interstate commerce – including intrastate actions and the federal action to strike down the Montana law doesn’t violate any constitutional provisions, the government brief argues.

“Congress also may ‘regulate activities that substantially affect interstate commerce,'” the government argues. “Here, Congress has rationally concluded that the manufacture and sale of firearms, a highly regulated commodity, substantially affects commerce.”

“While the MFFA may only apply to guns made and sold in Montana, it is unreasonable to expect that these firearms will not leave the state,” the brief continues.

The government argues that not even the Second Amendment supports the idea of state-regulated firearms rather than federal regulations.

“It is important to note that Heller [a Supreme Court decision affirming the individual right to bear arms] did nothing to disturb prior holdings refusing to extend Second Amendment protection to firearm manufacturers.”

A separate brief also was filed in support of striking down the Montana law by lawyers on behalf of the Brady Center to Prevent Violence, International Brotherhood of Police Officers, Hispanic American Police Command Officers Association, National Black Police Association and several others, drawing a sort of rebuke from the judge in the case.

He noted that only the Brady Center had been authorized to file the friend-of-the-court brief so the other organizations cited would not be recognized.

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, which guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Montana certain powers as they were understood at the time it was admitted to statehood in 1889.

Lawmakers in Montana actually took the dispute to the feds. They argued, “Should Congress enact a law that appears to conflict with the guidance in the [Montana Firearms Freedom Act], the courts may then determine whether Congress has acted within the scope of its delegated powers as limited by later amendments. … The courts may then determine the extent to which Congress’ enactment has abrogated the state’s exercise of power within the same sphere.”

The lawsuit was brought against U.S. Attorney General Eric Holder by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont.

It seeks a declaration that the federal government must stay out of the way of Montana’s management of its own firearms.

According to the Firearms Freedom Act website, such laws are “primarily a Tenth Amendment challenge to the powers of Congress under the ‘commerce clause,’ with firearms as the object – it is a states’ rights exercise.”

When South Dakota’s law was signed by Gov. Mike Rounds, a commentator said it addresses the “rights of states which have been carelessly trampled by the federal government for decades.”

Michael Boldin of the Tenth Amendment Center said Washington likely is looking for a way out of the dispute.

“I think they’re going to let it ride, hoping some judge throws out the case,” he told WND earlier. “When they really start paying attention is when people actually start following the [state] firearms laws.”

WND reported when Wyoming joined the states with self-declared exemptions from federal gun regulation. Officials there took the unusual step of including penalties for any agent of the U.S. who “enforces or attempts to enforce” federal gun rules on a “personal firearm.”

The costs could be up to two years in prison and $2,000 in fines for an offender.


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