Montana Bill Defies Supremacy Of All Federal Laws

Among a slate of far-reaching gun bills that cleared the Montana House Judiciary Committee this week was one that takes defiance of federal authority far beyond the Second Amendment context. The “Sheriffs First” bill would require federal agents to seek county sheriffs’ permission before enforcing any federal law, and empowers those sheriffs to arrest federal agents who don’t comply for kidnapping. The bill also mandates county attorneys to prosecute any claim by a sheriff against a federal official. Mother Jones’ Tim Murphy reports:

The proposal already passed both houses of the legislature once, in 2011, but was vetoed by then-Gov. Brian Schweitzer, a Democrat. This time [Gary] Marbut, the Montana gun lobbyist and aspiring firearms manufacturer who wrote the bill, is hoping Montana voters will determine the fate of his legislation. If passed, the latest version of the Sheriffs First measure would become a ballot question in November of 2014. […]

For Marbut, a prolific lobbyist who has written 58 pro-gun bills that made it into law, the referendum would have an added benefit. An earlier law he wrote, which blocks the federal government from regulating in-state gun manufacturing, is tied up in the courts. But if his “Sheriffs first” measure became a reality, that would become an afterthought.

The ATF might say “We have probable cause to believe that we have this person in your county who’s making firearms without a license,” Marbut explains. “And the sheriff might say, ‘Well, gosh, under the Montana Firearms Freedom Act, that’s protected activity in Montana, so you don’t have my permission for this bust.”

In case it wasn’t clear to state legislators that the bill is blatantly unconstitutional and amounts to all-out revolt against our federal-state system, an official legal review explicitly warns that this violates of the Constitution’s Supremacy Clause, which asserts that federal law trumps state law to the extent that they conflict. The analysis even cites a 1913 case in which the Supreme Court said that state law is preempted where, as here, “compliance with both federal and state regulation is a physical impossibility.” The document also links to a more in-depth analysis by the South Carolina Attorney General of a similar 2011 bill in that state, which adds that the mandatory prosecution of any claim by the county sheriff is a violation of separation of powers principles.

In a response, Marbut cautions the attorney who authored the memo to “be careful about any claim that LC 1040 is unconstitutional,” making the remarkable argument that the U.S. Constitution’s Supremacy Clause is entirely void because it conflicts with the subsequently passed Tenth Amendment.

The “Sheriffs First” bill is one of a number of unconstitutional state bills that have threatened to flout federal authority, through nullification of federal gun laws, discretion to nullify any laws they don’t like, and criminalizing federal enforcement of gun laws. The bill also tracks a movement by county sheriffs who have refused to enforce federal gun laws on the belief they are the highest law enforcement authorities – above federal authorities.

Similar “Sheriffs First” bills were introduced but not passed in several states in 2011 and 2012, and another bill was also introduced in Indiana in January. While the Montana bill was vetoed by the Democratic governor in 2011, Marbut has aimed to ease passage of the bill this year not only by turning it into a ballot initiative, but also by lumping it in with several other gun rights bills at a time when some conservatives are balking at federal attempts to prevent gun violence. Nonetheless, both the full Montana House and Senate must pass the bill before it can go before the voters. Other bills also cleared by the state’s House Judiciary Committee would ”let college students bring guns to campus, allow high school students to leave guns locked in their cars, and clear the way for nearly anyone to carry concealed weapons without a permit,” according to the Missoulian.