Black Bear Blog
July 24, 2009
The several states are lining up to reclaim their sovereignty and telling the federal government to butt out. This is being done in myriad ways but all are related in that most claim that the Tenth Amendment protects the states from federal tyranny. States are passing resolutions, memorials and two states have passed laws and they intend to apply those laws for their citizens. The two states are Montana and Tennessee.
It was expected that at some point these laws would be challenged and it appears actions to do such has begun. The Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has published open letters to federal firearms license holders inand explaining that
federal law trumps state law when it comes to gun laws.
“As you may know, federal law requires a license to engage in the business of manufacturing firearms or ammunition, or to deal in firearms, even if the firearms or ammunition remain with the same state. All firearms manufactured by a licensee must be properly marked. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured or otherwise acquired, and the date such manufacture or other acquisition was made. Firearms transaction records and NICS background checks must be conducted prior to disposition of firearms to unlicensed persons. These, as well as other Federal requirements and prohibitions, apply whether or not the firearms or ammunition have crossed state lines.
In a report filed by CBS News, it seems to indicate that even though these states are claiming sovereignty under the Tenth Amendment, the Federal Government may have power over such gun laws as the Firearms Freedom Act, via the Commerce Clause.
Read literally, the Tenth Amendment seems to suggest that the federal government’s powers are limited only to what it has been “delegated,” and the U.S. Supreme Court in 1918 confirmed that the amendment “carefully reserved” some authority “to the states.” That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept “all powers not expressly and particularly delegated” to the federal government.
More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce.
World Net Daily points out in an article of their own that the Montana Firearms Freedom Act bill declares that Congress has not “expressly pre-empted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition”.
I have been saying for some time that all of this will eventually wend its way through the courts ultimately landing at the feet of the United States Supreme Court. This is one reason the approval of Sonia Sotomayor as a Supreme Court justice is vitally important, especially due to the fact that she is anti Second Amendment and has shown little regard for the original intent of the Constitution.
Also at issue in this debate are pending lawsuits challenging gun laws in other states. Chicago’s gun ban is being challenged after the District of Columbia vs. Heller decision reaffirming an individual right to keep and bear arms. The Seventh Circuit Court of Appeals has ruled that federal gun laws do not pertain to the states, a position taken by Sotomayor.
This is an interesting ruling considering that prior to this the Ninth Circuit Court ruled that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and therefore federal law, which now holds the ruling of theDistrict of Columbia vs. Heller decision, applies to the states rendering them unable to create gun laws that supersede federal laws. This will end up at the Supreme Court.
While we are discussing the Fourteenth Amendment, the Second Amendment and Ninth and Tenth, the BATFE is sending out public letters, assumed to be authorized by the Obama administration, to federal firearms dealers in Montana and Tennessee, stating that federal law supersedes state laws, at least as they pertain to firearms and ammunition.
Where will this all end up? I believe the Supreme Court but I know not how long this may take. In the meantime, the Obama administration, made up of mostly anti-gun people, are grasping to gain control over your right to keep and bear arms. From the day Obama was elected, the people rushed to stores buying up guns and ammunition at unprecedented rates. With the combination of a new president and staff known to want to ban gun and gun sales and the District of Columbia vs. Heller ruling, it has helped spur more laws to relax gun restrictions. This, I am positive, angers the Obama administration.
None of this comes as a surprise to Gary Marbut, President of the Montana Shooting Sports Association. Marbut was directly responsible for the Montana Firearms Freedom Act. In a letter sent to his members of MSSA, Marbut points out what he views as little concern over the letter and how it was expected.
1) The letters are addressed only to FFLs and purport to assert authority only over those licensees already under the federal thumb because of their licenses. We’ve always assumed that people with existing FFLs would not be players in the state-made guns exercise because they will not wish to risk thwarting the earned reputation the BATFE has for vindictiveness. The letters are not addressed to non-FFLs, those folks who are potential participants in the state-made guns business.
2) The BATFE letters may lack any official import because they are not signed by the official who appears in the signature block, but by some unknown other person. It’s difficult to place much credence in a missive upon which the purported issuing person is unwilling to put his signature, and for which the signer is unknown.
3) The essence of the letter is a declaration that the laws that the BATFE enforces supercede the U.S. Constitution and the Tenth
Amendment. I understand that the BATFE hopes that is so, but that’s far from proven yet. (We still recommend that nobody make these state-made guns until we can litigate and vet the principles involved.)
4) The letters, if they are official even though unsigned by the issuer, will help us establish standing to get this issue squarely before the federal courts. The feds have thrown down the gauntlet.
I like Montana’s approach to their action in the creation of their Firearms Freedom Act. They are proactively seeking to bring this issue to the courts for a ruling. They believe in their own state’s constitution and that they, according to their contract with the people and the United States Government, have the sovereignty and freedom under the U.S. Constitution, to make their own laws in matters such as this.
This will be a long and drawn out affair but one that is ripe for a good battle. Let’s hope this battle arrives before Obama can stack the Supreme Court with more anti-gun “empathetic” justices.