The state of Montana recently passed the Firearms Freedom Act, which allows firearms and ammunition manufactured and sold for use only within the state to be exempt from Federal regulation.  Such guns and ammo would be stamped “Made in Montana.”  The legal theory here is that the the Federal government has the power to regulate interstate commerce in firearms, but not purely intrastate commerce – meaning that there must be some crossing of state lines before the Federal government has any power to regulate firearms.  Legislators in about 15 other states have expressed interest in passing similar laws in their own states.  Essentially, this is an effort to assert the rights of states, and to advance gun rights at the same time.  My thoughts are below:

Background on the Commerce Clause

Very simply put, the default rule in American constitutional law is that the Federal government is powerless to enact a law, unless there is some constitutional provision that gives the Federal government that power.  There are many such grants of Federal power, some of which are expressly in the text of the constitution.  Examples would be the provisions which allow the Federal government to enact bankruptcy laws, defend the country against foreign invasion, prevent slavery, etc. Other grants of power to the Federal government are less specific.  One such less specific grant of power is the Commerce Clause, which allows the Federal government to regulate interstate commerce (commerce between the states).  The Commerce Clause has proven one of the most powerful grants of power for the Federal government, and is the basis for a great many Federal laws these days – including gun laws.  The Supreme Court has broadly interpreted the meaning of “interstate commerce,” holding that the Federal government can regulate commerce that crosses state lines, as well as commerce that is purely within a state, so long as that purely intrastate commerce effects interstate commerce.  Put another way, the Supreme Court has said that the Federal government can regulate activities that are done entirely within a state, so long as those activities effect commerce across state lines.  The textbook example of this is Wickard v. Filburn, where the Supreme Court allowed the Federal government to regulate the amount of wheat that a farmer could grow purely for use on his own farm.  The Federal government wanted to limit wheat production in order to stabilize wheat prices, and so passed a law that limited the amount that farmers could grow.  The Farmer argued that wheat which he grew on his own farm, and used right there on the farm, was not related to interstate commerce, and therefor something that the Federal government couldn’t regulate.  The Supreme Court responded that while that farmer’s wheat wouldn’t cross state lines, or even leave the farmer’s own land, the fact was that the farmer’s growing of his own wheat would mean that the farmer wouldn’t need to buy as much wheat on the open market.  As a result of the farmer (and lots of other farmers) not needing to buy as much wheat, the price on the open market would go down.  That case was decided back in 1942, and still appears to be the law.  Fast forward to 2005, and the case of Gonzales v. Raich.  In this case, the Supreme Court upheld the Federal ban on marijuana, even when states have passed laws allowing the use of medical marijuana.  The Supreme Court used the same reasoning as from Wickard v. Filburn, saying that even purely intrastate production and consumption of marijuana could affect the (illegal) intrastate commerce in the drug, and that as a result, the Federal government had the power to regulate marijuana under the Commerce Clause.

Applied to Gun Laws

Just like many of the Federal government’s current laws, federal gun control laws are based upon the Commerce Clause.  States rights and gun rights supporters in Montana and other states want to put an end to the Federal government’s ability to regulate purely intrastate gun matters, such as the production of guns and ammo that would only be sold and possessed within the state where it was made.  To challenge this existing Federal law, which they believe to be unconstitutional, they plan to produce a .22 caliber youth model single shot rifle in Montana, and do so under state law but without Federal permission.  A court case will ensue, and hopefully the Supreme Court will hold that the Federal government is without the power to regulate purely intrastate commerce in firearms.

I’m optimistic about this idea, but still have my doubts that this will work out favorably for gun rights and state rights supporters.  While I personally believe that the constitution does not grant the Federal government the power to regulate purely intrastate commerce in firearms, the two Supreme Court cases discussed above might seem to suggest the opposite.  Then again, perhaps the Supreme Court will be less permissive when it comes to the regulation of constitutional protected firearms, in light of their recent D.C. v. Heller decision…

My thanks to Sith Snoopy for suggesting that I write an article about this topic.