Montana newly asserts Principle of Subsidiarity

Western states want reins on federal power

Eliza Wiley / Helena Independent Record

Montana state Rep. Joel Boniek, shown with his mule Jesse, introduced a bill seeking to exempt from federal regulation any firearm made and used within the state borders.
An expanded federal role prompts declarations of state sovereignty. Montana goes further with a gun bill defying U.S. firearm restrictions. The goal: Keep Washington on its side of the fence.
By Mark Z. Barabak
June 16, 2009

Reporting from Bozeman, Mont. -- Frustrated by the expanded power of Washington, a growing number of state lawmakers are defying the federal government and passing legislation aimed at rolling back the reach of Congress and President Obama.

While many measures are symbolic ones declaring the sovereignty of states, some Westerners are taking more dramatic steps. One Utah lawmaker wants to limit federal law enforcement in his state. In Montana, legislators enacted a bill that flagrantly ignores federal firearm restrictions, hoping to force a constitutional showdown.


Western politics: An article in Tuesday's Section A about the state sovereignty movement referred to legislation being considered for introduction next year in Montana that would make the sheriff the top law enforcement official in each county. The state Legislature does not meet again until 2011. —


Supporters of the bill want the Supreme Court to eliminate gun controls and, eventually, curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use.

"It's about states' rights," said state Rep. Joel Boniek, an independent-turned-Republican from nearby Livingston, who introduced the bill. "Guns are just the vehicle."

The Montana Firearms Freedom Act seeks to exempt from federal regulation any firearm, gun component or ammunition made and kept within the state's borders. The legislation, signed by Democratic Gov. Brian Schweitzer, becomes law Oct. 1, though federal officials will likely act quickly to keep the measure from taking effect.

Legal experts are skeptical Montana will prevail in court, and even some proponents express their doubts. But supporters say the fight is a necessary step to change Washington's attitude. Similar bills have been introduced in nearly a half dozen states, and lawmakers in about a dozen more have expressed interest.

"We need 15, 25, 30 states to pass these types of legislation, so that we send a clear message to the country and to the national government," said Utah Rep. Carl Wimmer, a Republican from suburban Salt Lake City.

In addition to supporting a version of Montana's gun law, Wimmer is drafting legislation that would forbid local authorities to help enforce federal statutes inside Utah -- another bill that, if passed, would surely trigger a court fight.

"The national government has gained more and more power . . . to a point where we're simply subjects of the ruling masters in Washington, D.C.," said Wimmer, who has established an organization, the Patrick Henry Caucus, to rally like-minded lawmakers from other states. "That is not the way this country and this government were set up."

It is no accident the greatest defiance has surfaced in the West, a region with a history of antipathy toward outsiders and, especially, Washington.

"You're going to get more of it as people look at the growth of the federal government and the big bailout of financial interests," said Eric Herzik, a University of Nevada political scientist and expert on the Sagebrush Rebellion, the populist movement that swept the West a generation ago and helped put Ronald Reagan in the White House.

The sacred text for Wimmer, Boniek and their allies is the Constitution's 10th Amendment, which limits the powers of Washington. Although the language is straightforward -- all powers not specifically delegated to the federal government are reserved for the states -- the meaning has been debated (and elastically interpreted) throughout history.

Conservatives and libertarians have long cited the 10th Amendment to press their case against the expansion of federal power, usually to little avail. Their latest effort is the state sovereignty movement. (Some also refer to the "states' rights" movement, though for many those words evoke the segregated South and efforts to fight racial equality.)

In just the last few months, legislatures in five states -- Alaska, Idaho, North Dakota, Oklahoma and South Dakota -- have passed resolutions asserting their sovereignty and asking the federal government to "cease and desist" from meddling in their business. Similar measures are pending in about two dozen other states, including seven out West.

"There's a lot of people in the federal government saying: 'Do this. You must do that. We're the boss,' " said Republican state Rep. Brad Klippert, co-sponsor of sovereignty legislation pending in Olympia, Wash. "That's not true."

Several Republican governors, including Sarah Palin in Alaska, Mark Sanford in South Carolina and Rick Perry in Texas, have gone beyond symbolism, turning down a portion of federal stimulus funds -- and rejecting the strings attached -- as a way of expressing their independence from Washington. That has sometimes meant going to court and fighting fellow lawmakers eager to accept the money.

The latest movement appears aimed at Obama, who, in just a few months, has increased the size and scope of the federal government more dramatically than any president in decades.

Advocates deny that, citing a litany of grievances that include the No Child Left Behind education bill, which imposed strict federal testing requirements, and the Real ID law, which dictates costly national standards for driver's licenses. Both were signed by President George W. Bush.

Still, Obama and his expansive agenda have unquestionably given momentum to the state sovereignty effort, which has been embraced by Republican politicians like Perry and heavily promoted by sympathetic commentators on conservative TV and talk radio.

For his part, Boniek at one point equated Obama with Hitler, Mao and Stalin, saying each loved his country in his fashion but proved disastrous as a leader. "He's ruining the country I love," Boniek said of Obama, his soft tone belying the harsh comparison. "He doesn't know what freedom is."

It is difficult to say how the Supreme Court might rule on Montana's gun law, which challenges the government's authority under the commerce clause of the Constitution, the legal basis for much federal regulation.

In the mid-1990s, the court struck down a federal law that sought to restrict guns near schools, using the rationale behind Montana's law: that the federal authority over interstate commerce did not extend to a product that was made and used within one state.

More recently, however, the justices rejected a direct challenge to the commerce clause, ruling in 2005 that the federal government had the authority to effectively override California's medical marijuana law, even though the cannabis was being grown and used within the state's borders.

"As an abstract legal matter, it's perfectly plausible," Eugene Volokh, a UCLA expert on constitutional law, said of Montana's case. "But it's very unlikely to succeed in today's legal climate."

Backers of the legislation concede as much. "No federal employee in a black robe is going to roll back the power of the federal government," said Gary Marbut, president of the Montana Shooting Sports Assn., who wrote the bill. "But we want to make a statement, get the legal arguments on the record and get people active."

Boniek, who makes his living operating a crane and leading big-game hunts, is already planning for next year's session. (Montana, like some other Western states, has a part-time legislature.)

He plans to introduce a bill that would make the sheriff the top law enforcement official in each county, requiring federal officers to seek permission to exercise authority in Montana.

For now, Boniek is waiting to see how the fight over his gun bill goes. "The whole thing is like a chess game," he said. "We've made our move. The next move is up to the federal government."


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