On April 9, 2010, the Goldwater Institute filed an amicus brief in defense of the Montana Firearms Freedom Act. The law permits firearms to be manufactured and sold within state boundaries, free from federal regulation. Similar laws have also been enacted in Arizona, Idaho, Utah, Wyoming, South Dakota and Tennessee. The Institute’s amicus brief has been joined by nearly a third of the Arizona Senate, nearly half of the state House of Representatives, as well as one U.S. Congressman and various Arizona organizations. It is the first of many litigation salvos aimed at restoring state sovereignty and the principles of federalism under the U.S. Constitution.
The lawsuit defending the Montana Firearms Freedom Act, Montana Shooting Sports Association v. Eric Holder, challenges the federal Bureau of Alcohol, Tobacco and Firearm’s declaration that federal gun control laws pre-empt the act. The Institute’s brief argues that such federal pre-emption would undercut the purpose of preserving state sovereignty in our federalist system—protecting individual liberty from the concentration of power in the federal government. This is because enforcing federal gun laws would restrict the opportunities Montanans would have otherwise under the act to enjoy their right to keep and bear arms and their related personal right to manufacture and sell firearms under the Ninth Amendment.
This argument has never been made before and could prevail in restraining the federal government’s reach. Of course, such optimism must be tempered with the challenge posed by modern constitutional law. Nevertheless, if we are to restore the balance of power needed to maintain our free republic, pushing back federal laws that directly implicate enumerated fundamental rights is among the best places to start.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
Goldwater Institute: Amicus Brief in Montana Shooting Sports Association v. Holder
National Public Radio: State Gun Laws Aim At Dodging Federal Regulation
Associated Press: More States Join Fight With Feds Over Guns