Published February 18, 2013
States across the country are trying to protect gun ownership from the long arm of Washington by proposing bills declaring that firearms made and kept within their borders are not subject to federal restrictions.
Nine states have proposed such legislation since President Obama and fellow Democrats in the Senate began trying to tighten federal gun laws in the wake of several mass shootings that occurred within months of each other.
“There’s a lot of momentum,” Montana activist Gary Marbut told FoxNews.com on Monday.
Marbut was behind the original Firearms Freedom Act, which says the Commerce Clause allowing Congress to regulate inter-state commerce does not apply to the in-state manufacturing, selling and ownership of firearms. Montana passed the bill in 2009.
Since then, a host of other states have tried to pass copycat legislation. Alabama, Georgia, Indiana, Michigan, Mississippi, Nebraska, Oklahoma, Pennsylvania and Washington have proposed such legislation since January -- following the Dec. 14, 2012, shooting in which 20 first-graders and six adults were killed inside a Newtown, Conn., elementary school.
However, Montana's legislation is hardly settled law. Shortly after the law passed in his state, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives wrote Marbut to say federal law still supersedes.
Marbut acknowledges he wrote the legislation to set up a legal challenge and “roll back a half a century of bad precedent.”
The bill is scheduled to finally get its day in court when the Ninth Circuit begins oral arguments March 4. Marbut expects to lose in the liberal-leaning court, which includes San Francisco, Seattle and Portland, Ore. But he thinks such a decision will put him in a better position to appeal to the country’s highest court.
“The mood of the country is right for the Supreme Court to consider what I think is a great mistake,” said Marbut.
Marbut, a shooting-range supplier, says existing big-name gun manufacturers are “not players” in the case because they have a nationwide market regulated by federal law. However, small upstart companies including gunsmiths and mom-and-pop operations would likely be able to make and sell guns within states, if the courts rule in his favor.
“Making firearms is not rocket science,” Marbut said.
The proposals have gotten plenty of pushback. State Democratic Rep. Robyn Driscoll criticized the Montana legislature for passing the law at the time, telling The Wall Street Journal a couple years ago that lawmakers wouldn’t support funding for education or women’s clinics but passed “this blatantly unconstitutional bill to pay for a Supreme Court fight.”
Montana passed the law at a time when gun control still was not widely discussed on Capitol Hill. Now, Obama and Senate Democrats have proposed legislation that essentially calls for a universal background check for potential gun buyers and re-instituting a ban on assault weapons and high-capacity magazines.
While the National Rifle Association and other gun-rights advocacy groups have mounted their opposition based largely on the Second Amendment right to bear arms, Marbut is focused on the 10th Amendment that focuses more on the limits of federal power.
Eight states including Montana, Arizona, Alaska and Tennessee have passed similar legislation, while 17 have had bills proposed but not passed in prior sessions.