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Utah Legislature: Herbert signs gun measure that defies federal laws

Published: Saturday, Feb. 27 2010 12:00 a.m. MST

SALT LAKE CITY — The first of more than a dozen bills aimed at asserting Utah's sovereign rights received Gov. Gary Herbert's signature Friday with assurance that he can keep the state out of costly litigation that may follow.

The statute created by SB11 (le.utah.gov/~2010/htmdoc/sbillhtm/SB0011.htm), sponsored by Sen. Margaret Dayton, R-Orem, exempts guns and ammunition manufactured and sold in Utah from federal firearms regulations and challenges current constitutional interpretation of interstate commerce.

Herbert, who received the bill last Tuesday, said the decision came after careful review of the potential fallout from the controversial legislation.

"There are times when the state needs to push back against continued encroachment from the federal government. Sending the message that we will stand up for a proper balance between the state and federal government is a good thing," he said. "But in these challenging economic times, when Utah families continue to struggle and our Legislature must account for every dollar it spends, we must also be thoughtful about the cost of that message."

Making the bill law likely moves the state into direct conflict with federal law, and a legal review by legislative attorneys warned that Dayton's proposal would likely be found unconstitutional.

The governor said consultation with Attorney General Mark Shurtleff and others assured him that the state can take a hard line on wholly controlling issues of intrastate commerce without incurring budget-busting legal expenses.

"I am satisfied that Utah can stand confidently with other states that are taking a stand against the federal government's overreach in this area," Herbert said. "The attorney general has assured me that, should a legal challenge be filed against the state, his office can take a variety of actions to ensure the defense of this legislation will have a minimal cost to the people of Utah."

The bill's sponsor said when she introduced the bill that it was her intent to challenge the status quo with the proposal and on Friday lauded Herbert for signing off on it.

"I am delighted," Dayton said. "I'm very pleased to stand with a governor who realizes we're one of many players in the pushback on federal overreach."

She said lawmakers in other states have been monitoring SB11's progression in Utah and waiting to see what action Herbert would take once it reached his desk.

"There's been other states watching us," Herbert said. "They're saying if Utah can't do it, should we be doing it?"

Senate Majority Leader Scott Jenkins, R-Plain City, was more demonstrative in his reaction to Herbert signing the bill.

"Yes!" he hollered, pumping his fist in the air. "He kind of kept us guessing on that one."

Dayton's bill was modeled after a new law adopted in Montana last year, the so-called Firearms Freedom Act, which is currently being litigated in federal district court in Missoula, Mont. The action was brought against the federal government by a group of private plaintiffs who have asserted that current interpretation of constitutional law, as it regards to the Interstate Commerce Clause, is incorrect. The federal government has filed a motion to dismiss the matter, which is awaiting a hearing. Tennessee is the only other state that has adopted a similar law.

And, while the nuts and bolts of implementing Dayton's statute have not been ironed out, such as how to track the guns, ammunition and gun accessories that would be exempted under the statute, even without legal action the new law is likely headed for some other hurdles.

Even before the Montana law was enacted last October, the U.S. Department of Justice's Bureau of Alcohol, Tobacco and Firearms sent a letter to all Montana firearms licensees warning them that federal rules still apply, regardless of the new state law. The letter stated that because the Firearms Freedom Act "conflicts with federal firearms laws and regulations, federal law supersedes the Act, and all provisions of the Gun Control Act and the National Firearms Act, and their corresponding regulations, continue to apply."

The letter goes on to outline that the record keeping and National Instant Criminal Background Check required under federal law would still apply in Montana.

e-mail: araymond@desnews.com

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