As of this writing, five states, Montana, Tennessee, Utah, Wyoming and South Dakota, have passed laws through their legislature effectively nullifying the Federal Government’s authority to regulated guns and gun accessories. Two states, Montana and Tennessee, their laws most commonly called Firearms Freedom Acts, have been signed by their governors. The other three are expected to follow suit. In addition to those five states, at least twenty more have introduced similar legislation and another half dozen intend to introduce it. By years end, there could feasibly be well over 30 states making an attempt to tell the Federal Government to butt out of their intrastate gun and gun accessory manufacturing.

The model for most of these bills came from Montana’s Firearms Freedom Act, a bill that basically states that any gun or gun accessory manufactured in Montana that is purchased and remains in Montana, cannot be regulated by the Federal Government of the United States. Montana is seeking “Declaratory Judgment” before suggesting that anyone proceed with the manufacturing of guns and accessories.

In reality what these Firearms Freedom Acts are doing is “nullifying” the authority of the Federal Government to regulate guns within the borders of each state when none of the guns or related products ever leave the state. The Federal Government has been very successful in the past in regulating all guns through the “Commerce Clause” of the Constitution. Montana’s bone of contention is that the Commerce Clause has regulated interstate commerce and has no authority over intrastate commerce.

One might ask if this is a full blown act of nullification. It’s not that Montana and other states are saying that any or a specific federal law is being declared unconstitutional in it’s entirety. In this case any law that the Federal Government thinks gives them authority to regulate intrastate gun manufacturing, is being challenged.

Gary Marbut, President of the Montana Shooting Sports Association and one of the sponsors of the MFFA, says this is a states’ rights issue.

This is a states’ rights effort, using firearms as the object of the exercise. The MFFA exempts Montana-made and retained firearms, firearm accessories and ammunition from federal power, saying that if these items do not cross state lines, they are strictly INTRAstate commerce, not INTERstate commerce, and not subject to federal authority.

Although nullification isn’t a term that is widely used these days, there are other examples of modern day nullification or challenges to certain federal laws. Two that come to mind are the REAL ID Act and marijuana laws. Some states have passed legislation challenging the constitutionality of forcing citizens to have to carry an identification card they believe infringes on their right to privacy and the Constitution. And, some states have passed their own laws authorizing marijuana for medical use where the Federal Government bans all uses and possession of the drug.

We may also be staring down the barrel of nullification depending on what happens with President Obama’s proposed National Health Care plan. If it is mandated that every American citizen have health insurance, many have asked where in the Constitution does the Federal Government have that kind of authority.

Probably the most recent case that expanded the power of the Federal Government to regulate commerce, came in 1942 in the Wickard v. Filburn case. This came at a time when President Roosevelt demanded the power to institute his programs he thought where going to get us on the road to recovery after the Depression. Scary isn’t it.

One of the more notable accounts of nullification was in 1832 in South Carolina. South Carolina’s “Ordinance of Nullification” declared the Tariff of 1828 and Tariff of 1832 unconstitutional. This put President Andrew Jackson in quite the predicament. While Jackson quietly assembled his army, ready to invade South Carolina, negotiations continued. Jackson’s fear was that if South Carolina were to be allowed nullification, many of the southern states would follow suit. Also many of the New England states apposed the tariffs. Jackson feared that secession would follow the nullification and this would lead to the demise of the Union. He also feared that an invasion of South Carolina could just as easily lead to civil war.

Other than President Jackson’s fear of the trouble in South Carolina, his bigger deterrent was coming from the fact that several other states, although never officially declaring nullification, were poised to do so.

Perhaps it is telling that so many states are seeking some form of nullification, some dealing with REAL ID, others medical marijuana and 25 states or more, opting to use gun rights as their tools to seek out a return of more state sovereignty, as is granted us in the Tenth Amendment. What does it tell us that so many states chose gun rights as their tool? And what does it tell us about the people’s attitudes toward the expansion of government.

Where will this go? First we should wait to see what the Court rules in the Montana Firearms Freedom Act case and watch to see how many other states pass and get signed their “nullification” bills. Soon, then, we can declare, “Balls in your court!

Tom Remington

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