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Pennsylvania to Consider Nullifying Some Federal Gun Laws

Pennsylvania State Representative Sam Rohrer has introduced the “Firearms Freedom Act” (HB1988) for consideration in the state legislature. The bill is “An Act prohibiting certain firearms, firearm accessories or ammunition from being subject to Federal law or Federal regulation.”

HB1988 currently has 48 additional co-sponsors, and according to FirearmsFreedomAct.com, is similar to bills recently enacted into law in both Montana and Tennessee.While the bill seems to focus solely on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It specifically states:

The regulation of intrastate commerce is vested in the states under the 9th and 10th Amendments to the Constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

Rohrer, in a recent letter to Pennsylvania House Members, addressed the issue of the commerce clause:

Under the current, expansive interpretation of the Interstate Commerce Clause in Article I, Section 8 of the U.S. Constitution, it is permissible for the federal government to regulate the sale of goods that are manufactured and sold exclusively within a state’s borders. Effectively, the federal courts hold that if a product might possibly find its way into streams of interstate commerce, federal laws to regulate that product are appropriate. The product need not actually be sold between states.

In 1942, the U.S. Supreme Court ruled against a farmer who was fined by the federal government for growing too much wheat. Effectively, the argument in Wickard v. Filburn was that the wheat he grew and consumed himself would lead to decreased wheat sales in other states, so it fell under federal jurisdiction because of the interstate commerce clause.

As recently as 2005 (Gonzales v. Raich), the U.S. Supreme Court cited Wickard as standing for the proposition that “Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for interstate sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

According to the U.S. Supreme Court, wheat (in Wickard) and medical marijuana (in Raich) are completely indistinguishable from such products made and sold in interstate commerce, so federal regulation is appropriate.

Under my bill, the policy of this Commonwealth would be that firearms and firearm accessories manufactured and exclusively sold in the Commonwealth of Pennsylvania, carrying the brand “Made in Pennsylvania” (all clear indicators of intrastate commerce), would be subject only to state law.

The principle behind such legislation is nullification, which has a long history in the American tradition. 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.

All across the country, activists and state-legislators are pressing for similar legislation to nullify specific federal laws within their states.

A proposed State Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010, and up to 10 states may consider similar Amendment proposals next session.

While some advocates and legal theorists concede that a 10th Amendment federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

In the past 2 years, nearly two dozen state legislatures passed resolutions and laws refusing to implement the 2005 Real ID Act. Because of this, and without congressional repeal, The Bush-era law is effectively null and void.

Some advocates of these efforts say it doesn’t matter whether or not the federal government agrees, or even if it threatens states over funding, as they did recently with Oklahoma. Gary Marbut, author of the Montana Firearms Freedom Act, took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.

Whether or not state legislators have the backbone to resist if federal officials strongly disagree remains to be seen. But either way, as nullification efforts spread, it points to a growing state-level rebellion to the federal government.

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