Lund on Gun Rights Revolt
Leaders of a grassroots movement to invoke states' rights in areas such as gun control in which they believe the federal government has overreached may have a difficult task before them, according to Professor Nelson Lund, who teaches constitutional law at Mason.
Referring to the backers of several gun rights bills who seek to invoke the Tenth Amendment, Lund says, "I think they probably should succeed and I think they probably won't." Lund, who is an expert in Second Amendment issues, told a reporter for CBSNews.com, "The Supreme Court has strong precedents that would render this statute invalid."
Several states have joined Montana in approving or considering bills in which firearms, ammunition, and accessories manufactured entirely within the state are considered subject to state regulation only. A broader goal of the effort is to strengthen the Tenth Amendment to the Constitution, which says that "powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people."
Despite the fact that theTenth Amendment currently has little legal force, those who argue for less involvement of the federal government believe that casting light on the issue of states' autonomy is a worthwhile goal.
"To the extent they're working to get people to think for themselves about the Constitution, that's a good thing and could lead to some good results," Lund points out.
Gun Rights Groups Plan State-By-State Revolt, CBSNews.com, June 16, 2009. By Declan McCullagh.
"Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been 'delegated,' and the U.S. Supreme Court in 1918 confirmed that the amendment 'carefully reserved' some authority 'to the states.' That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicity said that states kept 'all powers not expressly and particularly delegated' to the federal government.
"But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.
"The states 'never gave the federal judiciary permission to erase the Tenth Amendment from the Constitution,' Marbut said. 'We need to reacquaint them with the Tenth Amendment.'
"That will be no trivial task. In a letter last week to the Tennessee House of Representatives, Gov. Bredesen said the state's version of the bill had 'clear constitutional deficiencies,' and even scholars who tend to favor gun rights believe it will meet a frosty reception if it ends up in court."