Legal Commentary

If you're a Con Law professor scratching around for an exam hypo, you could do a lot worse than the Montana Firearms Freedom Act, a Montana law purporting to restrict federal regulation of firearms manufactured with borders of the state.  The operative part of the law (Section 4) declares, in relevant part, as follows:

"A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce.  It is declared by the legislature that those items have not traveled in interstate commerce.  . . . Generic and insignificant parts . . . are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into [one of those items] does not subject the [item] to federal regulation."

Interesting enough -- questions about the reach of the commerce power, and about states' ability to dictate or declare that reach.  But there's more

1. Preemption: Section 2 ("Legislative declarations of authority") includes the following:

"The regulation of intrastate commerce is vested in the states under the 9th and 10 amendments to the United States constitution [sic], particularly if not expressly preempted by state law.  Congress has not expressly preempted state regulation of intrastate commerce pertaining the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition."

So, in addition to more declarations from the state -- this time about whether Congress has in fact preempted this intrastate commerce -- we also have a statement that the power to impliedly preempt is not part of the Interstate Commerce power.  At least some people seem to be listening to Justice Thomas's recent arguments against implied preemption.

2.    Originalism of an interesting sort: Other declarations in Section 2 refer to the Second, Ninth and Tenth Amendments as reserving to the people or the states certain rights "as that right was understood at the time that Montana was admitted to statehood in 1889."  Interesting argument: does this mean that, at least theoretically, the rights these amendments bestow vary based on the year of the state's admission?  If the Second Amendment is incorporated against the states does that mean that Alaskans have fewer Second Amendment rights because the "right [that] was understood at the time" that Alaska was admitted was presumably the understanding in United States v. Miller (even if, as Heller concluded, the "hundreds of judges" Justice Stevens cites as reading Miller broadly were in fact overreading the case)?  (It's true enough that Justice Scalia doesn't concede that there were in fact "hundreds of judges" who read Miller as adopting the militia-use understanding, so maybe the Court would have an out to not resurrect Miller if they ever adopted this theory.)

Maybe more interestingly, why should the admission date matter?  If these were territories then they would be under the control of the federal government; thus, the Second Amendment would have applied from the very first moment the land became part of the United States.  Of course, admission date would be relevant for the Ninth and Tenth Amendments to the extent they protected states' rights of self-government.  Are Alaska and Hawaii again out of luck, at least with regard to any Tenth Amendment claim, given the "mere truism" status of the Tenth Amendment as of 1959?

3. Contract? Section 2's references to these rights talk about their status as "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."  I don't know much about the process by which states were/are admitted to the Union; is the process really in the nature of a contract?  Or was Montana a special case?

These questions may not be just grist for an exam; a number of states are considering similar laws and there's currently litigation over the Montana law.  But as grist goes, it's pretty good.