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8/27/2013 11:27:00 AM
Appeals Court overturns Arizona law on home gun, ammo manufacturing

Howard Fischer
Capitol Media Services


PHOENIX -- Arizona lawmakers can not give their residents the right to make their own guns and bullets without federal approval, the 9th U.S. Circuit Court of Appeals ruled Friday.

In a unanimous decision, the judges struck down a Montana law that declared guns or ammunition manufactured in that state and remain within its borders are not subject to federal laws or regulation, including registration. The court rejected arguments that Congress has no power over such weapons.

Friday's ruling is significant because Arizona adopted its own version of the statute in 2010.

The sponsor of that that law said she specifically patterned it after the Montana statute. In fact, much of the language of the measure signed by Gov. Jan Brewer is virtually identical to the law struck down.

But Nick Dranias, an attorney for the Goldwater Institute who argued to uphold the Montana law -- and, by extension, its Arizona counterpart -- said he still believes a case can be made that the federal government has no say over locally produced weapons and those who carry them.

The key, he said, is the June ruling by the U.S. Supreme Court striking down the federal Defense of Marriage Act. Dranias said that sets the precedent that states have inherent powers to decide certain issues.

Arizona's 2010 law is based on the premise that the federal government has no business knowing what residents are doing with their firearms.

That argument has been foreclosed before because guns and bullets cross state lines. That makes them part of interstate commerce, which the U.S. Constitution clearly allows Congress to regulate.

Nancy McLain, then a state representative from Bullhead City, figured the way around that was to eliminate that issue of interstate commerce.

Her measure, like its Montana model, spells out in Arizona law that a personal firearm, accessory or ammunition made commercially or privately in this state that remains within Arizona border "is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.'

And, as in Montana, the statute asserts that the U.S. Constitution reserves for Arizona residents "certain rights as they were understood at the time Arizona was admitted to statehood in 1912.' That, the law says, means Arizona gets exclusive authority over weapons that are made and remain in the state.

The Montana law got into court when the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives sent an open letter to licensed federal firearms dealers there saying U.S. law supersedes the state law. Several Montana groups then filed suit in federal court challenging that federal authority.

Among the challengers was Gary Marbut who owns a business that manufactures shooting range equipment and served as president of the Montana Shooting Sports Association. He wanted to manufacture a .22 caliber rifle, dubbed the "Montana Buckaroo,' that would not subject to federal firearms licensing.

But Judge Richard Clifton, writing for the appellate court, said Marbut's plans to sell his rifle only within the state do not make those activities free of federal oversight.

"Even if Marbut never sells the Buckaroo outside of Montana, Congress could rationally conclude that unlicensed firearms would make their way into the interstate market,' the judge wrote.

And Clifton said that does not change even if the weapon were stamped "made in Montana,' just like there a similar "made in Arizona' provision in the law here. He said such a stamp "will not deter those seeking to purchase unregistered firearms in the interstate black market.'

Brewer press aide Andrew Wilder said the governor's office was still studying the ruling and its effect on Arizona law.

Dranias, one of the attorneys who argued before the appellate court, said he thinks there still is a case to be made for the right of states to free their residents from federal firearms regulations.

On the surface, he said there is no reason for the federal government to preclude local manufacture simply based on the possibility of a weapon leaving the state.

"You prosecute it when it crosses state lines,' Dranias said. "What happens within the states that is not intrinsically interstate should be hands off from the federal government.'

Still, Dranias conceded there is a long line of case law that have allowed federal regulation of locally produced items simply because they might wind up crossing state lines, including crops and even marijuana.

But Dranias said all that may now be changed because of that June ruling on DOMA saying that states and not the federal government are entitled to decide who can wed.

More to the point, the Supreme Court said the federal government has to recognize those decisions as part of the "core powers' of a state. And that means someone considered married by a state gets that status for things like federal tax and inheritance laws.

Dranias said the manufacture of items like weapons designed to remain within the borders of a state are also within the same "core powers.'

Taylor Waste

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