Montana gun case could affect Utah, Constitution

SALT LAKE CITY — Identified by the Legislature's own attorneys as "highly likely to be held unconstitutional," a Utah firearm law passed earlier this year will effectively get its first courtroom test this week in Montana, where gun makers are taking on the U.S. government over a similar law.

The Montana Firearms Freedom Act declares, as does its Utah counterpart, those who manufacture and sell guns and ammunition within the state's borders are not beholden to federal firearm regulations.

And like the Utah law, which is being held in limbo pending the outcome of the Montana case, the legislation is about more than just guns.

"It's about states' rights," says Gary Marbut, president of the Montana Shooting Sports Association, and the man who both penned the law and launched the suit.

Tired of what he sees as an ever-expanding federal government stripping down the powers of the state, Marbut challenges the Commerce Clause of the U.S. Constitution in his suit.

"We have come a long way from what the founders intended to how the Commerce Clause is being applied today," he said. "The federal government has asserted essentially monopolistic control over the entire chain of new firearms. Imagine comparing this to the First Amendment. Fine, you have freedom of the press, but you can only buy presses, ink and newsprint through an approved, licensed supply chain."

The problem, said Utah Solicitor General Annina Mitchell, is that the federal government and a number of courts have vastly expanded the definition of commerce over the last 50 years. Now, a law once intended to keep states from engaging in predatory practices that limited interstate commerce has "forced the states out of the business of regulating even activities that are totally within the state," Mitchell said.

Utah, one of eight states that has already passed a law similar to Montana's, filed a friend-of-the-court brief in support of the plaintiffs.

"We're trying to get the court to look at rebalancing that power between the state and federal governments," Mitchell said.

Thursday's arguments in Missoula will not focus on the meat of the lawsuit. The federal government has asked the court to dismiss Marbut's case on a lack of standing. Because no Montana firearm manufacturer has yet made or sold guns under the state's law, the federal government argues it has not interfered and, as such, there is no grounds for a lawsuit.