March 16, 2010 by Statesman Sentinel
By Bob Unruh – WorldNetDaily
A fifth state – South Dakota – has decided that guns made, sold and used within its borders no longer are subject to the whims of the federal government through its rule-making arm in the Bureau of Alcohol, Tobacco and Firearms, and two supporters of the growing groundswell say they hope Washington soon will be taking note.
South Dakota Gov. Mike Rounds has signed into law his state’s version of a Firearms Freedom Act that first was launched in Montana. It already is law there, in Tennessee, Utah and Wyoming, which took the unusual step of specifying criminal penalties – including both fines and jail time – for federal agents attempting to enforce a federal law on a “personal firearm” in the Cowboy State.
According to a report in the Dakota Voice, the new South Dakota law addresses the “rights of states which have been carelessly trampled by the federal government for decades”:
“As the federal government has radically overstepped is constitutional limitations in the past year or so, an explosion of states have begun re-asserting their rights not only with regard to firearms, but also in shielding themselves against government health care, cap and trade global warming taxes, and more.”
South Dakota’s law specifically notes “any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.”
The provisions are nearly a mirror of the original law penned in Montana as well as those adopted in subsequent decisions by Tennessee, Utah and Wyoming.
Gary Marbut of the Montana Shooting Sports Association spearheaded the Montana law and now describes himself as a sort of “godfather” to the national campaign. He told WND the issue is not only about guns but about states’ rights and the constant overreaching by federal agencies and Washington to impose their requirements on in-state activities. He said he’s pleased South Dakota has become No. 5, and noted Alaska, Idaho and Oklahoma all have legislation that is approaching the stage of being presented to a governor to be made into law.
The Firearms Freedom Act website also reveals that other states either with pending legislation or pending plans include Alabama, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, Washington and West Virginia.
Marbut said Washington appears to be reacting the same way it did when states legalized marijuana or rejected the REAL ID national plan: by ignoring it. “Ultimately we hope there will be lawsuits in other federal circuits, because there are two things that predispose the U.S. Supreme Court to take a case: the national scope of the issue and differing appellate decisions,” he told WND.
Michael Boldin of the Tenth Amendment Center said Washington likely is not anxious for a confrontation. “I think they’re going to let it ride, hoping some judge throws out the case,” he said today. “When they really start paying attention is when people actually start following the [state] firearms laws,” he said.
But when Democratic Gov. Dave Freudenthal signed his state’s bill into law, it included penalties for any agent of the U.S. who “enforces or attempts to enforce” federal gun rules on a “personal firearm” in Wyoming including up to two years in prison and up to $2,000 in fines.
The bellwether likely is to be a lawsuit pending over the Montana law, which was the first to go into effect. As WND reported, the action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect Oct. 3, 2009.
Marbut argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
The government’s filing in the case demands its dismissal, citing a lacking of “standing” for the plaintiffs and the court’s lack of “jurisdiction,” as well as the Constitution’s Commerce clause. The government filing argues, “The Supreme Court and Ninth Circuit have repeatedly held that even purely intrastate activities, such as those the MFFA purports to exempt from federal law, do affect interstate commerce and thus are within Congress’ power to regulate. As a result, even if plaintiffs had standing and jurisdiction existed, plaintiffs’ amended complaint fails to state a claim and must be dismissed.”
The Commerce Clause, however, can be interpreted to have been amended by the 10th Amendment, which is part of the Bill of Rights, adopted subsequent to the U.S. Constitution, Marbut explains. His organization said, “The Commerce Clause was amended – by the 10th Amendment. It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. This principle is ancient. Without this principle, laws could not be amended or repealed.” For example, U.S. courts repeatedly affirmed slavery before it ultimately was rejected.
There’s no question that the components of the Bill of Rights have authority: Just look at the First Amendment, Marbut explained.
In an analysis by the Tenth Amendment Center, the gun laws were described as a nullification:
“Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are ‘unauthoritative, void, and of no force’ from the outset. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.”