Obama Citizenship

States? Rights Update: Second Amendment: Montana May Soon Go to Court; Texas Bill in Committee

By Phil

Montana

The Kansas City Star is reporting that the State could be setting itself up for a court battle after Governor Bill Schweitzer, a Democrat, signed HB246 into law:

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. …

…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. …

Under the new law, guns intended only for Montana would be stamped “Made in Montana.” The drafters of the law hope to set off a legal battle with a simple Montana-made youth-model single-shot, bolt-action .22 rifle. They plan to find a “squeaky clean” Montanan who wants to send a note to the ATF threatening to build and sell about 20 such rifles without federal dealership licensing.

If the ATF tells them it’s illegal, they will sue and take the case all the way to the U.S. Supreme Court, if they can.

Similar measures have also been introduced in Texas and Alaska. …

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.

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. …

“Firearms are inextricably linked to the history and culture of Montana, and I’d like to support that,” said Montana state Rep. Joel Boniek, the bill’s sponsor. “But I want to point out that the issue here is not about firearms. It’s about state rights.”

Texas

Via TylerPaper.com, State Representative Leo Berman had introduced HB1863 earlier this year, “[r]elating to exempting the intrastate manufacture of a firearm, a firearm accessory, or ammunition from federal regulation”:

A bill by state Rep. Leo Berman exempting Texas-made firearms, gun accessories and ammunition sold within the state from federal regulation and law — including registration — was heard in a House committee on Monday.

The bill also provides for the Texas Attorney General’s office to defend Texans who run afoul of the federal government because of this law.

Berman, a Tyler Republican who has pushed several “states’ rights” measures this legislative session, said his bill would affect more than 300 manufacturers in the state.

“Under the 9th and 10th Amendments of the U.S. Constitution, states have responsibility for regulating intrastate commerce,” Berman said. “The federal government has no role.” …

“With the appointment of Eric Holder as U.S. attorney general, we have the most anti-Second Amendment attorney general in the history of the nation,” Berman said. “What we’re saying with this is there are some guns not subject to federal regulation. We have guns and gun accessories and ammunition here that are not subject to their regulation.”

Berman said the bill has the support of the National Rifle Association and the Texas State Rifle Association. Contacted on Monday, the Texas State Rifle Association’s Alice Tripp did not comment.

Berman said his bill could also spark economic development.

“This gun bill will invite new industry into Texas, that will take advantage of intra-state commerce,” Berman said. “We’re talking about gun manufacturers, gun accessory manufacturers, and ammunition reloaders.”

Montana passed a similar bill earlier this month, and a court challenge is expected when the law goes into effect in October. …

Tyler attorney and gun rights advocate Sean Healy said Berman’s effort is commendable.

“I applaud Leo’s effort to put the federal government in its place,” Healy said. “Americans have been conditioned for decades to accept Washington’s meddling in their lives. We have grown complacent, and we accept most new restrictions without batting an eye. As a result, Washington has gotten used to doing whatever it wants.”

That applies to sweeping federal regulation of firearms, he added.

“I think Leo is right about the Constitution,” he said. “The founders intended for the federal government to have the powers specifically given to it in the Constitution, and the states and the people to keep the power to do everything else.”

Still, the bill could end up putting the state on a collision course with the federal courts.

“The only problem I see with Leo’s bill is the provisions requiring the state to pay for its citizens to fight the federal government,” Healy said. “That could cost the taxpayers a lot of money fighting a losing battle.”

Berman’s bill was left pending in committee, as is usual following committee hearings. It could be voted on as soon as next week.

On Wednesday, another House committee will hear a bill by Berman that would place an 8 percent surcharge on all money wired by illegal immigrants to Mexico and Central and South America. Berman said the bill would generate $480 million yearly. The revenue would be earmarked for hospitals, which he says bear the burden of providing health care for uninsured illegal immigrants and for border security.

Those of you who are Second Amendment advocates will recall the recent precedent-setting case, District of Columbia v. Heller. Here is a synopsis of what the decision meant:

In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court. Justices John Paul Stevens and Stephen Breyer filed dissenting opinions, each joined by the other as well as Justices David Souter and Ruth Bader Ginsburg. Justice Stevens argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Breyer agreed with Stevens’ argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be “unreasonable or inappropriate” to violate the Second Amendment. In Breyer’s view, the D.C. laws at issue in this case were both reasonable and appropriate.

Should any of these bills be taken to court, the issue then becomes whether or not the gun rights advocates can make a persuasive case that if a weapon or ammunition created in Montana or Texas (or wherever) is specifically denoted (construed) to be used in an intrastate fashion, then the above case fits for the purposes of both individual and private group (e.g.: militia) use.

So, one could say that the bigger issue of whether or not an individual can “keep and bear arms” has obviously been decided. What’s left in the challenge is whether or not those against these State measures can reasonably show that such implements are intended to be used in an interstate, but not an intrastate, fashion.

I look forward to watching this play out in the Judiciary.

A current listing of State-based initiatives can be found here.

-Phil

Full post as published by The Right Side of Life on April 29, 2009 (boomark / email).