Laws that claim to exempt guns from all federal laws have been proposed in several states this week, “in response to national threats against our Second Amendment rights,” according to one Michigan legislator. The bills, which even supporters would concede will likely not pass constitutional muster, claim that guns manufactured and retained in one single state are not subject to federal law.
Originally introduced and passed in Montana, the FFA declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states. The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the commerce clause, with firearms as the object.
On the day the first successfully passed Firearms Freedom Act went into effect in Montana in 2009, the author of the bill filed an affirmative lawsuit seeking to “challenge Congress’ commerce clause power to regulate a wide spectrum of in-state activities.” As expected, the lawsuit was dismissed by the federal district court, and even the plaintiffs expect a similarly negative outcome before the U.S. Court of Appeals for the Ninth Circuit. This is because the U.S. Supreme Court has repeatedly held that Congress has definitive power to regulate even activity that occurs solely within one state, so long as it “substantially affect interstate commerce.”
In proposing a bill in the Michigan state senate this week, Sen. Rick Jones (R) said the proposal was intended both to ”let major gun companies in the U.S. know that we are open for business” and as an assertion of states’ rights. A similar bill was proposed this week in Oklahoma.
Gary Marbut, the author of the Montana law who sued in federal court, said even he advises individuals in the eight states that passed such laws not to change their behavior until the lawsuit has “cleared.” Of course, even under Chief Justice John Roberts, it is a pipe dream to imagine that the Supreme Court will reverse decades of decisions on the Commerce Clause. But that hasn’t stopped legislators in some 21 states from introducing versions of the Firearms Freedom Act, just as they have sought to nullify the Affordable Care Act and other major pieces of federal legislation.