Passing the Montana law was just the first step. Supporters are now working to ignite the legal battle by choosing a manufacturer willing to construct a “Made in Montana” line of guns, then contacting the Bureau of Alcohol, Tobacco, Firearms and Explosives to see whether the firearms can be sold without dealer licensing.
If the bureau declares such sales illegal, backers say they plan to pull the trigger on the lawsuit.
That’s when the entire enterprise threatens to collapse. Even supporters say it’s a long shot that a federal court will overturn a century of legal history to rein in the Interstate Commerce Clause.
The Rehnquist court issued two decisions that limited congressional power under the Commerce Clause, though both decisions concerned law-enforcement matters.
The 1995 U.S. v. Lopez ruling struck down the Gun-Free School Zones Act, which made it a federal crime to have a gun near a school, and the Violence Against Women Act was nixed in the 2000 case of U.S. v. Morrison. The court decided that neither school crime nor sex-based violence qualified as interstate commerce.
But the “local only” approach hasn’t been as successful.
As far back as 1905 (Swift v. U.S.), the Supreme Court upheld federal regulations of meat dealers who bought and sold locally as permitted by the Interstate Commerce Clause. In Wickard v. Filburn in 1942, the justices ruled that even wheat that never left the farm - the farmer fed his cattle with it - affected the interstate wheat trade and thus was subject to federal regulation - in that case, production quotas.
One design flaw with the Montana Firearms Freedom Act is its focus on firearms, said Mr. Helmke, of the Brady Campaign. There aren’t that many federal laws regulating guns, apart from those requiring dealer licensing, banning machine guns and prohibiting felons from buying firearms, he said.
Mr. Helmke added that the courts were unlikely to side with Montana, describing the Interstate Commerce Clause as “settled federal law.”
“In effect, Montana’s trying to turn back the clock to pre-New Deal times, or even pre-Civil War times,” Mr. Helmke said.
That may be true, but Mr. Marbut thinks public opinion in favor of such a change is growing. He pointed to the popularity of state sovereignty laws, which have been introduced this year in more than 30 states. And where the public goes, the judiciary often follows.
“The courts do pay attention to something they call ‘emerging consensus.’ It means the natives are getting more than restless,” he said. “Hopefully, because there are so many clones of the Montana Firearms Freedom Act being introduced in other states, the courts will recognize this as an emerging consensus.”