WSJ: A Gun Activist Takes Aim at U.S. Regulatory Power

by Jess Bravin

MISSOULA, Mont.— With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.

Montana passed a law that tries to exempt the state from federal gun regulation. But the law is now before the courts, in a test of states' rights. WSJ's Jess Bravin reports.

He's not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.

For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.

Eight states have adopted his Firearms Freedom Act, which Mr. Marbut conceived as a vehicle to undermine federal authority over commerce.

Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.

Mr. Marbut isn't basing his pro-gun effort on the Second Amendment, the one that talks about a right to bear arms, but on the 10th, which discusses the limits of federal power.

"This is really about states' rights and federal power rather than gun control," Mr. Marbut says. There is "an emerging awareness by the people of America that the federal government has gone too far," he maintains, "and it's dependent on a really weird interpretation."

He is talking about the 1942 Supreme Court case of Wickard v. Filburn, which looms for him the way the Dred Scott decision denying rights to blacks did to antebellum abolitionists.

The narrow question in 1942 was whether the federal government could regulate wheat a farmer grew for use on his own farm. But the constitutional issue concerned how far Congress's authority to oversee interstate commerce stretched.

The court ruled Congress could regulate almost any activity that might interfere with national policy. That set the legal basis for a panoply of federal laws.

The principle underpins the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Controlled Substances Act, the Endangered Species Act, the Consumer Product Safety Act and the Americans with Disabilities Act.

Congress drew on its commerce power to pass the Civil Rights Act of 1964, which outlawed segregated hotels, restaurants and theaters because these could serve "interstate travelers" or sell food that crossed state lines.

The ruling is also at the center of a challenge to part of last year's health-care overhaul, requiring most Americans to carry insurance. In June, a federal appeals court in Cincinnati cited the Wickard case in upholding that. Several other suits against the act are pending.

Utah Attorney General Mark Shurtleff, who filed a brief representing 10 states in support of Mr. Marbut's case, says it will be tough to get the Wickard decision overturned outright.

But he believes today's Supreme Court could be persuaded to narrow Congress's commerce-regulation authority.

In recent years, the court's conservative majority has overturned precedents to strike down laws restricting handguns and regulating corporate political spending.

"Clearly, since Wickard, the federal government has gone way beyond" its authority, Mr. Shurtleff says. "We would like to see that rolled back."

Mr. Marbut wants the court to declare that the Wickard case "was wrongly decided, and the whole trail of cases that rely on it were wrongly decided."

Mark Meckler, national coordinator of the Tea Party Patriots, says Mr. Marbut has engineered "a wonderful legal approach to doing" what he considers "the fundamental issue of our time…putting government back in the box."

Mr. Marbut says he doesn't belong to a tea-party group, though "I get along with them, philosophically."

The Montana Firearms Freedom Act, which he drafted and pushed through his state's legislature, declares that guns made in Montana, stamped "Made in Montana" and staying in-state aren't subject to federal regulations.

After the state enacted it, he announced plans to manufacture the Buckaroo, a miniature rifle that is based on an 1899 Winchester model and intended for children between ages five and 10. Orders, at $200 apiece, poured in. Some came from lawmakers.

"I have four grandkids on the ground, two more on the way, and my youngest gets married on June 12th, so I expect results from him by mid-winter," Republican State Rep. Krayton Kerns told Mr. Marbut by email last year. "Put me down for seven with the option to purchase more."

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives was less enthusiastic. It wrote to Mr. Marbut saying: "Federal law supersedes the [Montana Firearms Freedom] Act, and all provisions of the Gun Control Act and the National Firearms Act" remain in force.

Mr. Marbut went to court. The "Constitution confers no power on Congress to regulate the special rights and activities contemplated by the MFFA," his petition argued, while the Ninth and 10th Amendments assign "all regulatory authority of all such activities within Montana's political borders" to "the sole discretion of the State of Montana."

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