CAP
02-04-2000, 03:26 AM
Montana Rejects Federal Anti-Gun Law
by Gary Marbut - Sierra Times Big Sky Bureau Chief
February 2, 2000
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MISSOULA - The Montana Legislature passed a law to exempt Montana from the hapless federal Gun Free School Zones Act. The GFSZA was first passed by Congress in 1991, and intended to make it a criminal offense for a person to travel within 1,000 feet of a school grounds if the traveler had a firearm in their vehicle that was not both unloaded and locked away.
The Montana Shooting Sports Association complained about the new law. MSSA’s president, Gary Marbut, commented, “That law was so incredibly stupid. All the schools in Montana are on the main road through town, and most of the vehicles in Montana carry firearms, especially during hunting season. That law made criminals out of a majority of the population. That’s a sure sign of a bad law.”
The GFSZA contained a provision exempting persons from the act if they were licensed by the state to purchase or possess firearms. So, MSSA drafted a bill for the Montana Legislature declaring that since the Montana Constitution guarantees the right of the people to keep and bear arms, all law abiding adults in the state are deemed to be licensed by the state to possess firearms pursuant to the GFSZA. The bill passed the Montana House of Representatives and the Montana Senate, was signed by Montana’s Governor Marc Racicot, and is now the law of the land in Montana.
This law can be viewed here, and reads as follows:
“45-8-360. Establishment of individual licensure. In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution, a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.”
Not long after passage of the GFSZA, a boy named Lopez was caught bringing a gun to school in Texas. Federal prosecutors asked state officials to allow federals to test their new law. Lopes was prosecuted under the new federal law in U.S. v. Lopez. Lopez was assigned a public defender, who argued that the GFSZA was illegal and unconstitutional. The arguments were that regulation of schools was an activity that had always been left to the states and local school districts under the Tenth Amendment to the U.S. Constitution, and that there had been no connection made by Congress in the enactment of the law between a gun in a school and any interstate commerce activity sufficient to trigger congressional authority under the Commerce Clause of the Constitution, the usual authority claimed by Congress for most of its laws.
The federal district court, the federal appeals court, and the U.S. Supreme Court all agreed that there was no showing of Commerce Clause authority, and that, therefore, the GFSZA was unconstitutional and void. See the Lopez decision .
The next session of Congress reenacted the GFSZA without change in language, except Congress did include a brief declaration that guns found in or near schools had probably traveled in interstate commerce, thereby theoretically triggering authority for Congress to enact this law under the Commerce Clause.
Since that time, the GFSZA has not again been tested in the courts. But, the people of Montana remain protected from the silliness of this Congressional act by the intervention of the Montana Legislature with its own exemption from the GFSZA.
When asked if the Montana exemption prevails over the federal law, MSSA president Marbut responded, “That hasn’t been tested in court, but, given the previous failure of the federal law in federal court, and the opposing claim that can be made under the Tenth Amendment, our Montana law essentially pulls the rug out from under any would-be federal prosecution under the federal law in Montana. Given the Montana law, it’s hard to imagine a federal prosecutor who would be willing to waste their time attempting a prosecution under this federal law in Montana.”
by Gary Marbut - Sierra Times Big Sky Bureau Chief
February 2, 2000
--------------------------------------------------------------------------------
MISSOULA - The Montana Legislature passed a law to exempt Montana from the hapless federal Gun Free School Zones Act. The GFSZA was first passed by Congress in 1991, and intended to make it a criminal offense for a person to travel within 1,000 feet of a school grounds if the traveler had a firearm in their vehicle that was not both unloaded and locked away.
The Montana Shooting Sports Association complained about the new law. MSSA’s president, Gary Marbut, commented, “That law was so incredibly stupid. All the schools in Montana are on the main road through town, and most of the vehicles in Montana carry firearms, especially during hunting season. That law made criminals out of a majority of the population. That’s a sure sign of a bad law.”
The GFSZA contained a provision exempting persons from the act if they were licensed by the state to purchase or possess firearms. So, MSSA drafted a bill for the Montana Legislature declaring that since the Montana Constitution guarantees the right of the people to keep and bear arms, all law abiding adults in the state are deemed to be licensed by the state to possess firearms pursuant to the GFSZA. The bill passed the Montana House of Representatives and the Montana Senate, was signed by Montana’s Governor Marc Racicot, and is now the law of the land in Montana.
This law can be viewed here, and reads as follows:
“45-8-360. Establishment of individual licensure. In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution, a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.”
Not long after passage of the GFSZA, a boy named Lopez was caught bringing a gun to school in Texas. Federal prosecutors asked state officials to allow federals to test their new law. Lopes was prosecuted under the new federal law in U.S. v. Lopez. Lopez was assigned a public defender, who argued that the GFSZA was illegal and unconstitutional. The arguments were that regulation of schools was an activity that had always been left to the states and local school districts under the Tenth Amendment to the U.S. Constitution, and that there had been no connection made by Congress in the enactment of the law between a gun in a school and any interstate commerce activity sufficient to trigger congressional authority under the Commerce Clause of the Constitution, the usual authority claimed by Congress for most of its laws.
The federal district court, the federal appeals court, and the U.S. Supreme Court all agreed that there was no showing of Commerce Clause authority, and that, therefore, the GFSZA was unconstitutional and void. See the Lopez decision .
The next session of Congress reenacted the GFSZA without change in language, except Congress did include a brief declaration that guns found in or near schools had probably traveled in interstate commerce, thereby theoretically triggering authority for Congress to enact this law under the Commerce Clause.
Since that time, the GFSZA has not again been tested in the courts. But, the people of Montana remain protected from the silliness of this Congressional act by the intervention of the Montana Legislature with its own exemption from the GFSZA.
When asked if the Montana exemption prevails over the federal law, MSSA president Marbut responded, “That hasn’t been tested in court, but, given the previous failure of the federal law in federal court, and the opposing claim that can be made under the Tenth Amendment, our Montana law essentially pulls the rug out from under any would-be federal prosecution under the federal law in Montana. Given the Montana law, it’s hard to imagine a federal prosecutor who would be willing to waste their time attempting a prosecution under this federal law in Montana.”