States and Guns

The New York Times reports today that fear of tighter gun regulations by the Obama administration has driven several states to loosen firearm regulations.  (We posted earlier this week on the Washington State Supreme Court's ruling incorporating the Second Amendment against Washington State.)

The states' actions may be motivated in part by concern for protecting Second Amendment rights, but they appear to be legislative efforts (not mandates by the courts).

At the same time, several states are considering some version of the Firearms Freedom Act--state legislation that declares that any firearms made and retained in-state are beyond the authority of Congress under the Commerce Clause, in effect nullifying such legislation.  Montana and Tennessee have already passed a version of this, and a dozen or so other states are considering it.

The FFA may be a bold political statement, but like so many other, similar nullification efforts that we've seen recently (and historically), it will have no constitutional effect.  That aside, the FFA appears to ignore the well established rule that Congress can regulate under the Commerce Clause activities that have a substantial effect on interstate commerce.  Firearms manufactured and retained within a single state certainly could have a substantial effect on interstate commerce, and Congress could ensure this through its fact-finding and by adding a "jurisdictional hook" to any federal legislation (as it did in the wake of Lopez to the Gun Free School Zone Act,18 U.S.C. Sec. 922(q)).

The FFA makes another constitutional mistake.  According to the FFA web-site, "[t]he FFA is primarily a Tenth Amendment challenge to the powers of Congress under the "commerce clause," with firearms as the object--it is a state's rights exercise."  Whatever the FFA is, it most certainly is not a "Tenth Amendment challenge."  Nothing in the text or history of the Tenth Amendment (or the Supreme Court's post-1995 Commerce Clause and Tenth Amendment cases) suggests that the Tenth Amendment limits the powers of Congress or gives rights to states.  It simply reserves powers to the states that aren't given to the federal government.  The core question--and the real thrust of the FFA--is whether Congress has power to regulate this items under the Commerce Clause.  This may (or may not) be an interesting issue, but it has little to do with the Tenth Amendment.

SDS