Saturday, May 2, 2009

The Sovereign State of Montana

The New York Times reports (h/t The Gun Guys) on the newest gun legislation in Montana, which has important implications for federal involvement in states' rights.

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.

This would mean that many prohibited people could buy guns. It would also mean that many people from other parts of the country could buy guns there. For them, driving across state lines would constitute a crime, but perhaps an easier one to get away with than buying illegally in their home state.

The limitation to only guns manufactured in Montana is important, 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. But doesn't this sound just like what the pro-gun people say about the Assault Weapons Ban, that it's just the start? If this legislation passes, the precedent will have been established and other laws will follow. In fact, similar measures have also been introduced in Texas and Alaska.

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.

''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.''

What's your opinion? Is this about gun rights or state rights? Do you think this is a follow up to the Heller decision last year? Is there a direct connection or is this a general trend?

Is there anything wrong with allowing states to have autonomy in these matters, New Jersey strict and Montana lenient as far as guns go?

Please leave a comment.


  1. The only argument that the Federal government can ever use to pass national gun control is by perverting the interstate commerce clause. In fact, far more laws than just gun laws have been passed on the questionable interpretation of that article.

    All Montana is saying is that they want the Constitution to stand.

  2. Would there be a way for the Federal Government to 'penalize' Montana for every gun that is found to have left the State, especially if that gun is part of a crime outside the State?

    And what would that penalty be?

  3. The complete annihilation of the 10th Amendment via the Commerce clause is one of the worst things to happen to this country.

    As someone who's studied the Commerce Clause extensively I have a feeling Montana is going to get screwed if they go to court.

  4. Wow, Mike, you really think Montana will lose on this?

    I can see it's more about state autonomy than about gun rights. Agreed?

  5. Mike - Given past Commerce Clause jurisprudence yes, I think they will.

    I think the courts will use the same reasoning we saw in Wickard v. Filburn and Gonzalez v. Raich. I hope I'm wrong, since I strongly disagree with the majority holding in both of those cases.

  6. I think it's absolutely about states' rights. Any arguments about increasing or decreasing crime are completely irrelevant; the Constitution forbids the federal government from regulating intrastate gun issues, so it can't do it no matter how constructive that regulation might or might not be. It's similar to drug laws: if Indiana wants to make it legal to sell crystal meth to kindergarteners, Washington has no legal authority to do anything about it without amending the Constitution.

    The gradual assumption by more and more Americans that they should run to the federal government to get the social policies they want has resulted in the gutting of our Constitution and an increasingly unstable country whose policies can swing wildly with the election of ideologically polarized political parties. We're gradually losing the last of the checks and balances that preserve our country and our freedom, and that scares me far more than the evidently terrifying prospect of some states allowing and some states outlawing abortion.

    Is there anything wrong with allowing states to have autonomy in these matters, New Jersey strict and Montana lenient as far as guns go?

    With the understanding that keeping and bearing arms is a Constitutionally protected activity, and so New Jersey's room for regulation is restricted more that it would be for, say, driving or drug use, I think it's fine. New Jersey can have more restrictions than Montana, even if I strongly disagree with those restrictions, so long as they pass the strict scrutiny test that we demand of laws that regulate Constitutional rights.