Gary Marbut of Missoula Montana is a man on a mission. With his legislation, the Firearms Freedom Act (FFA) gaining popularity across the country, he is hoping to curtail the regulatory powers of the federal government.
The FFA declares that “any firearms made and retained in-state are beyond the authority of Congress under its constitutional to regulate commerce among states.” This means that any firearm manufactured or produced within a state is exempt from federal laws and regulations, including licensing fees, transaction records, and the scrupulous eye of federal inspectors so long as that firearm stays within its state of origin. The FFA was first passed in Montana and has since been adopted and enacted in Tennessee, Utah, Wyoming, Alaska, Arizona and South Dakota.
According to Mr. Marbut, who told the Wall Street Journal, “This is really about state’s rights and federal power rather than gun control. There is an emerging awareness by the people of America that the federal government has gone to far, and it’s dependent on a really weird interpretation.”
As highlighted in the WSJ article, what Marbut is referring to is a 1942 Supreme Court case, Wickard v. Filburn, which ruled that, “Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.”
This (re)interpretation of the Commerce Clause gave the federal government an increased swath of regulatory power and, according to some, contributed to the subversion of the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
To explicate, even when Mr. Marbut goes to sell his homemade .22-caliber rifle, the “Montana Buckaroo,” to citizens of Montana he must comply with federal regulations and the Bureau of Alcohol, Tobacco, Firearms and Explosives because although, in reality, one or two or even a handful of “Montana Buckaroos” being sold would probably not effect interstate commerce, those transactions could, hypothetically, impact interstate commerce if an arbitrary aggregate number were sold.
When Mr. Marbut announced that he would start producing a line of his “Montana Buckaroo,” the ATF wrote to him “Federal law supersedes the [Montana Firearms Freedom] Act, and all provisions of the Gun Control Act and the National Firearms Act.”
Many lawmakers see the FFA more as a political gesture than they do as a measure to bring about real reform. However, some politicians like Arizona Governor Jan Brewer, who signed Arizona’s version of the FFA, see it as the perfect vehicle to “restore our Founding Fathers’ vision of a limited federal government based on the 10th Amendment.”
Mr. Marbut is hoping to take his case all the way to the Supreme Court.