Sunday, May 17, 2009

The coming battle over states rights

From Time Magazine:
The right to bear arms is famously and specifically referenced in the Second Amendment to the U.S. Constitution. Alas, for advocates of the right, the language of the amendment gets tangled up in the regulating of militias and the interpretation of commas. Now a multistate movement is trying to find more robust constitutional support in another amendment, which makes no mention of weaponry at all.

The 10th Amendment declares, "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." It inspired the so-called Sagebrush Rebellion that swept the West three decades ago, preventing the federal takeover of public lands pushed by the Carter Administration and propelling the self-proclaimed Sagebrush Rebel, Ronald Reagan, to the presidency. Now the Amendment is being invoked by pro-gun advocates to press for state, rather than federal, regulation of gun manufacturers. (See pictures of America's gun culture.)

Montana has passed a law allowing local gun manufacturers to sidestep federal regulations as long as the weapons they make are sold within the territory of the state. "It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," Democratic Governor Brian Schweitzer said, according to the AP, as he signed the bill into law in mid-April. "I like big guns, I like little guns, I like pistols, I like rifles, and I would like to buy a gun that's made in Montana." [emphasis added]

In Texas (which recently saw Governor Rick Perry joking that the Lone Star State might take up the ultimate state right and secede from the Union), a similar bill is in committee as the legislative session winds down. Tennessee and Alaska "Firearms Freedom Acts" are working their way through the process. Utah may take up a bill next year.

The Montana law was drafted by the Montana Shooting Sports Association, which has said it will support what it is likely to be a lengthy legal fight in the federal court system to affirm or strike down the law. Plans call for the association to find a pristine individual who will manufacture and sell 20 rifles without applying for a mandatory federal dealer's license. The right to do so would be asserted in a letter to the Bureau of Alcohol, Tobacco and Firearms. Once a BATF response likely rejecting that claim is received, the association would seek standing in a Federal District Court to litigate its claim, experts say. ...

Article here. A key part of the legal argument will center on the scope and nature of the Constitution's Commerce Clause, which gives the federal government the power "[t]o regulate Commerce ... among the several States[.]" (See Art I, Sec 8, Cl. 3). Unfortunately, the Supreme Court's current jurisprudence on the Commerce Clause indeed allows sweeping federal power to regulate all manner of commerce, even commerce with little to no direct relationship to interstate commerce. Might the Court's new makeup, with Chief Justice Roberts and Justice Alito, be amenable to overturning existing Supreme Court precedents (such as Wickard v. Filburn, 317 U.S. 111 (1942) that got the unbridled federal regulatory power ball rolling) in this area? We might find out in the coming years if more and more states adopt laws similar to Montana's.

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