Guns, Omelets, and the End of Federalism

We’ve been hearing a lot about guns and the Second Amendment lately, but not so much about guns and the Tenth Amendment. Proposed federal gun laws might be good or bad policy, but what business does the federal government have regulating privately-owned guns (outside of the District of Columbia)? The conventional wisdom is that federal gun jurisdiction flows from the infinitely-expandable interpretation of Congress’s power to “regulate” interstate commerce. Nowadays, it means that Congress can pass any law that might “affect” interstate commerce. 

A while ago, the Montana legislature decided to test the limits of the commerce power by enacting the “Firearms Freedom” law. The law declares that personal firearms that were manufactured in Montana and never left the state (ie, purely intra-state products) are exempt from federal regulations.

The Montana Shooting Sports Association brought a lawsuit seeking a declaration that it may manufacture and sell firearms within the state without complying with federal regulations. Yes, American citizens must now go to court to establish their right to engage in intra-state commerce without federal interference. Well, of course, the Association lost the case. A federal court held that the association did not have “standing” to bring the suit, which is pretty rich, given that federal courts routinely grant standing to non-profits like the Sierra Club. But then the Court went on to hold that the Firearms Freedom law was invalid — trumped by Congress’s broad power to regulate interstate commerce. As the Court said, “when Congress makes an interstate omelet, it is entitled to break a few intrastate eggs.” Charming, isn’t it? Why is it so darn cute, I wonder, when Congress violates the Tenth Amendment, but not when it violates the First Amendment?

The Montana case is headed for argument before the Ninth Circuit on March 4. I know, I know, it’s the Ninth Circus, so don’t hold your breath. But perhaps the Supremes will take the case. Or perhaps another intra-state commerce law (there have been lots in recent years) will succeed. The resistance to federal overreach is just getting started.