Since Gov. Brian Schweitzer signed the Montana Firearms Freedom Act into law April 15, the bill's author says it's "gone viral" as other states attempt to ward off the authority of the federal government. But at least one anti-gun organization believes the alleged effort to strengthen states' rights is nothing more than a ploy orchestrated by the gun lobby to disarm federal firearms regulations.
The state act, which goes into effect Oct. 1, exempts firearms, gun accessories and ammunition made and kept in Montana from federal law. On the heels of Schweitzer's signature, legislators in other states have introduced bills nearly identical to the Montana Firearms Freedom Act. HB 186 in Alaska, HB 1863 in Texas, S. 794 in South Carolina and HF 2376 in Minnesota were all introduced in those states' legislatures. On July 9, Tennessee Governor Phil Bredesen signed a version of the Firearms Freedom Act into law.
Gary Marbut, who drafted the Montana bill and serves as president of the Missoula-based Montana Shooting Sports Association, says this is only the start. Marbut claims lawmakers in 14 additional states have told him that they plan to introduce the bill when their respective legislatures reconvene in January.
"It is really more about states' rights, the 10th Amendment and the Interstate Commerce Clause of the Constitution," says Marbut. "Guns are just the object. States' rights are the subject."
It's the states' rights aspect that prompted Rep. Joel Boniek, R-Livingston, to sponsor the bill in the Montana Legislature. He says that's also the reason similar bills are sweeping across the country.
"There's a groundswell of support for this idea because all across the nation people are realizing that the federal government is like a river that is flowing over its banks and it needs to be shored up," says Boniek. "This is a good rallying point for people to do that."
Marbut admits the Firearms Freedom Act sets a legal precedent that will not sit well with the U.S. Department of Justice, and he's already planned to defend it in court. Once the law goes into effect, Marbut will ask a local gun maker to write the Bureau of Alcohol, Tobacco and Firearms requesting permission to operate under the new statute. Marbut anticipates a denial from the agency, which will then arm him with a reason to file a declaratory judgment in federal court. Ultimately, Marbut and other supporters hope to use the case to roll back the powers they believe the federal government has seized illegally ever since the Great Depression.
"I believe in constitutional government and I think the system that the American founders set up is a good one," Boniek says. "The president and the courts and Congress grab as much power as they can and nobody ever asks what's the proper role for each branch of government."
Actually, the courts decided those roles years ago, according to Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. He believes a federal judge will ultimately shoot down the Firearms Freedom Act movement.
"This has been a settled area of law since the Depression-era cases in the Supreme Court and it's a little bit why they fought the Civil War," Helmke says. "The New Deal cases dealt with folks who were growing crops in their own state and consuming them themselves. The courts then found that it had an effect on interstate commerce and there was proper federal regulation. It strikes me that they're trying to re-litigate the New Deal and the Civil War."
Helmke also questions why Marbut and the Montana Shooting Sports Association would pick something as controversial as firearms to battle for states' rights. Currently, only three real firearms regulations exist at the federal level. After prohibition, Congress banned machine guns with the National Firearms Act of 1934. After the assassinations of Martin Luther King Jr. and Robert F. Kennedy, Congress passed the Gun Control Act of 1968 to prohibit certain interstate firearms transfers. Lastly, after White House Press Secretary James Brady took a bullet for President Ronald Regan in 1981, Congress instituted background checks on most gun purchases.
"So the question I ask," Helmke says, "is which of those three laws does the state of Montana not like? Do they want to make machine guns available to felons? It strikes me as particularly strange that if the whole focus is states' rights, that they would pick guns because there are very few federal laws regarding guns."
Boniek and Marbut say Helmke is missing the point. The Firearms Freedom Act isn't just about guns, and Boniek specifically says it's not a preemptive measure to protect gun rights under the Obama administration. Instead, Marbut says he chose guns because they rally local constituents more than any other issue. He contends that "90 to 95 percent" of state households pack heat, and that the average number of guns per home is 27. He attributes the numbers to his own unscientific research.
"Gun owners are by far the majority," Marbut says. "By and large, they are the political mainstream here in Montana."
With a strong majority behind him, Marbut says he's prepared for a long legal battle. Even if the courts knock down the Firearms Freedom Act for the reasons Helmke explains, Marbut has one other trick up his sleeve: emerging consensus.
"That's basically judicial jargon for, 'There are mobs of peasants at the palace gates with torches and pitchforks, so we better pay attention,'" he says. "The emerging consensus is the other states that are picking up on this idea."