The Problem With "Intrastate" Firearm Laws

By Ken Hanson, Esq.

There has been much excitement sweeping the gun-owner boards recently over Montana's passage of a law and Texas' introduction of a bill "exempting" homemade firearms from Federal regulation.

Homemade firearms are often referred to as "intrastate" firearms on the theory that they are created and exist entirely within one state. By contrast, "interstate" firearms are ones that are created and/or moved across state lines. The distinction is important on the theory that Congress regulates firearms on the basis of powers granted under the Interstate Commerce clause, including the powers granted Congress to adopt laws necessary and proper to the regulation of Interstate Commerce.

The courts have looked at the issue of Interstate Commerce Clause's expansion extensively, and from the New Deal onward courts gave Congress carte blanche. Most of our Federal Civil Rights legislation was established on the premise that local businesses were acting in or impacting Interstate Commerce.

Only under Chief Justice Rehnquist in the 1990s does the Supreme Court of the United States (SCOTUS) begin to reign in Congress, notably in a case striking down version 1.0 of 18 USC 922(q), otherwise known as the Safe School Zones Act, the law that purports to ban firearms within 1,000 feet of a school. In the original case, Lopez, the Court held that regulating firearms near schools was entirely unrelated to Interstate Commerce, and struck down the law. Congress promptly amended the law with a bunch of self-serving "findings" on the impacts of guns near schools on Interstate Commerce, and passed version 2.0, which still stands today.

Unfortunately for gun owners, Justice Scalia departed from his Lopez decision in the Gonzales case, along with Justice Kennedy. In Gonzales, the SCOTUS upheld a federal law banning the medical use of marijuana in a case where the marijuana was planted, grown and consumed all on private property in one state. In essence, this is the exact type of law that Texas and Montana are attempting. Scalia wrote a concurring opinion attempting to differentiate his vote in Lopez from Gonzales, and most readers of the opinion find his reasoning puzzling at the very least.

Justice Thomas and Justice O'Connor each wrote a blistering dissents, with Chief Justice Rehnquist joining O'Connor's dissent. As Thomas stated:

Most importantly to gun owners and those hoping for a miracle from Montana and Texas, there was a criminal case pending (Stewart) against the maker of a homemade machine gun at the time of Gonzales, and the court initially ruled in favor of the gun maker in a case out of the 9th Circuit Court of Appeals. The SCOTUS ordered the 9th Circuit to reconsider the case in light of their holding in Gonzales. The court did so, and reversed itself, finding Congress can regulate homemade firearms.

Granted, opinions change, Justices change and times change, but given the overwhelming weight of Interstate Commerce Clause jurisprudence, cases directly on point, and Kennedy, the swing vote on Heller, already indicating which way he would go, we are up against monumental odds with these types of laws, and, if you will excuse the expression, the time and effort expended on passing these laws amounts to so much intellectual masturbation. No state, with the stroke of a pen, is going to free their citizens from the shackles of an overreaching Congress.

So what we are really left with is a bunch of symbolism at a time, for instance, when Montana still prohibits licensees from taking guns into banks and schools. They could rectify this tomorrow and have very strong, immediate impact, on gun rights in the state. Similarly, Texas requires reciprocity agreements that keep Ohio licensees from carrying in Texas, and has a long list of victim zones that can post 30.06 notices to ban legal carry.

If states truly wish to curry favor with gun owners and take steps to protect our rights, they can start by taking a critical look at their own laws and abolishing victim zones and legal bars to carrying firearms. Simple and immediately effective. If a state truly wants to fire a shot across the bow of the Federal Government a la Molon Labe, then form a simple, non-National Guard State militia and issue them militia-type arms to keep at home in order to defend against all threats, foreign and domestic. (Congress, we are talking about you here.) If Montana chose to become the American Switzerland, THAT WOULD BE INTERESTING and would stand a much better chance of succeeding than the purely symbolic political actions now being engaged in.

Ken Hanson is a gun rights attorney in Ohio who serves as the Legislative Chair for Buckeye Firearms Association. He is the attorney of record for Buckeye Firearms Foundation, which filed an amicus brief in the Heller case. In 2008, the National Rifle Association's Institute for Legislative Action (NRA-ILA) awarded him with its Defender of Justice Award. He is the author of The Ohio Guide to Firearm Laws, a certified firearms instructor and holds a Type 01 Federal Firearms License.