- The Washington Times - Wednesday, June 15, 2011

ANALYSIS/OPINION:

Eight states have thrown down the gauntlet and denied the federal government’s authority to regulate firearms that never cross state lines. In 2009, Montana became the first to enact a law declaring any gun manufactured and kept within the state’s borders was subject only to state rules. It’s now up to the 9th U.S. Circuit Court of Appeals to decide whether Montana - and by extension Alaska, Arizona, Idaho, South Dakota, Tennessee and Wyoming - must yield to the whims of Uncle Sam.

Gary S. Marbut, president of the Montana Shooting Sports Association, wants to manufacture a .22 caliber bolt-action rifle for youth, exclusively for Treasure State residents. Mr. Marbut currently runs a small business that manufacturers equipment for shooting ranges. He has sourced all the material needed to make the “Montana Buckaroo” rifle, including prototype parts. If he assembles just one rifle to fill any of the 500 preliminary orders he has received for the product, he’ll face federal charges. “It was my intention to set up this lawsuit to challenge federal Commerce Clause power and to breathe some life back into the 10th Amendment,” Mr. Marbut told The Washington Times.

On Monday, Montana’s attorney general filed an amicus brief arguing the 9th and 10th Amendments give states authority over matters not explicitly federal. Under the Constitution, Congress has no power over intrastate commerce. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) doesn’t care. In a September 2009 letter, the agency insisted Mr. Marbut would be thrown in jail if he made a Montana-only rifle without first filling out federal paperwork, paying fees and receiving a blessing from Washington. “Any unlicensed manufacture of any (National Firearms Act) weapons, including sound suppressors, without proper registration and payment of tax, is a violation of Federal law and could lead to the forfeiture of such items and potential criminal prosecution,” ATF special agent in charge Richard E. Chase wrote.

The Justice Department wants Mr. Marbut’s lawsuit thrown out and Montana’s firearms-freedom statute nullified. A district court judge agreed to dismiss the case, essentially saying nobody could challenge federal gun laws without expending the significant capital needed to start the new manufacturing enterprise, making a gun and being tossed in the slammer.

This case will inevitably land in the lap of the Supreme Court, which needs to reconsider its Commerce Clause jurisprudence. The consequences of the Montana case extend far beyond guns. It’s about whether this nation should continue to cede unlimited power to unelected, distant bureaucrats to dictate what kind of automobiles, health care, toilets, shower heads, washing machines and light bulbs the public is allowed to buy. More states should join with Montana in saying enough is enough.

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