Thursday, April 30, 2009

Governor (D) Brian Schweitzer of Montana takes on the Federal government

This needs some careful consideration rather than a knee-jerk reaction of either the right or left.

From AP/t Alphecca] [h:

HELENA, Mont. (AP) — Montana is trying to trigger a battle over gun control — and perhaps make a larger point about what many folks in this ruggedly independent state regard as a meddlesome federal government.

In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.

That notion is all but certain to be tested in court.

The immediate effect of the law could be limited, since Montana is home to just a few specialty gun makers, known for high-end hunting rifles and replicas of Old West weapons, and because their out-of-state sales would automatically trigger federal control.

Still, much bigger prey lies in Montana's sights: a legal showdown over how far the federal government's regulatory authority extends.

"It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," said Democratic Gov. Brian Schweitzer, who signed the bill.


Obviously, the Feds are not too happy about this:

Carrie DiPirro, a spokeswoman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had no comment on the legislation. 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....

Critics say exempting guns from federal laws anywhere would undermine efforts to stem gun violence everywhere.

"Guns cross state lines and they do so constantly, and this is a Sagebrush Rebellion-type effort to light some sort of fire and get something going that's pleasing to the gun nuts and that has very little actual sense," said Peter Hamm, communications director for the Brady Campaign to Prevent Gun Violence.

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.


Montana, of course, has a rejoinder:

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.

Supporters of the measure say the main purpose is not extending gun freedoms, but curbing what they regard as an oppressive interpretation of the interstate commerce clause and federal overreach into such things as livestock management and education.


Is there a reasonable case to be made that States retain some power to draw the line at the Feds regulating items because they might be carried across State lines? Proponents of Statism will suggest that there should never be an occasion when the sovereignty of the State could be opposed to the power of the Federal government because, because ... because ...

Well, why not?

5 comments:

Keydet aka Townie 76 said...

Steve:

While I appreciate the sentiment of Montana, and I greatly admire their Governor as being part of the wing of the Democratic Party that ruggedly independent, I am afraid, that while making the good citizens of Montana feel good, there is huge Constitutional bar to their actions specifically the Supremacy Clause, to wit which read: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
How then could this law pass muster, I would suggest that it would require the State of Montana to prove to the Federal Courts (this is where this will end up and maybe ultimately with the Supremes) that somehow the laws passed by Congress are contrary to either the specific powers of Congress found in Article 1 Section 8 of the Constitution, are prohibited in Article 1 Section 9 (they aren't I checked) or are contradiction with the Supreme Courts decision in District of Columbia v Heller. I would proffer this would be futile effort and if undertaken will be expensive, however unless undertaken it will leave the question unanswered. Montana is in a similar position to the Commonwealth of Virginia in the VMI case; they knew what the answer was going to be but they had to fight for ultimate decision.
This is a very interesting question and it will be interesting to see how it plays out.

Hank Foresman

Duffy said...

If Hank is correct he makes a case for federal law alone and no state law. Why not federal driver's licenses? Federal car registration? Those two are far more likely to cross state lines than firearms.

Delaware Watch said...

I'm looking for the connection of this:
"Is there a reasonable case to be made that States retain some power to draw the line at the Feds regulating items because they might be carried across State lines?"

with this:

"Proponents of Statism will suggest that there should never be an occasion when the sovereignty of the State could be opposed to the power of the Federal government because, because ... because ..."

It's perfectly possible to argue that the Feds are right on the Montana gun issue for the reasons they cited WITHOUT endorsing the claim "Proponents of Statism will suggest that there should **never** be an occasion when the sovereignty of the State could be opposed to the power of the Federal government...."

Never? Regardless of the issue or facts or governing law? I can't imagine anyone saying that. I wouldn't.

Steve Newton said...

Dana,
Why is it you always go for my not-completely-logic literary flourishes? :)

I'd love to find a case like this wherein the product is not something inherently controversial that is nonetheless Federally regulated under interstate commerce, but I doubt you'd find politicos signing off on such.

tom said...

one of the original Supreme Court cases that greatly expanded the reach of the "interstate commerce" clause and got us further into this mess was about canned milk.

perhaps it is good that this is an emotionally charged issue.