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ATF to Montana/Tennessee What 10th Amendment?

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Both Montana and Tennessee have recently passed laws which exempt both the manufacturers of firearms and citizens of the state from federal firearms regulations based on the 2, 9 and 10th amendment of the Constitution. In both cases the ATF has issued letters basically telling the states that Federal laws supersede state law. Here is the Tennessee letter and here is the Montana letter.

The Montana law goes into effect in October the Tennessee law is already in effect. It will be interesting to watch what the ATF does to actually enforce this letter.

Based on the actual verbiage of the Constitution both Montana and Tennessee have every right to pass the laws they did. Since unless the manufacturers engage in interstate commerce the federal government has no authority to restrict them. Unfortunately there is a precedent for the federal government to restrict them based on the possibility of interstate commerce.

Wickard vs Filburn (Supreme Court 1938). This involves the attempt to restrict the amount of wheat grown by a single farmer for personal consumption using interstate commerce as the method of restriction. The summary of this judgement is:

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

In essence any consumption even for local or personal use, has an effect on interstate commerce and therefore will be liable to federal law. The original case concerned a farmer going wheat for his own use during the great depression. A more sympathetic party could scarcely be imagined. The chances that firearms manufacturers or users will garner widespread support would be slim.