The gun nullification laws, on the other hand, are all about a frontal assault. They’re the brain child of Gary Marbut, maker of a rifle called the Montana Buckaroo. Marbut is a Tenth Amendment guy, which means he thinks the part of the Constitution that reserves some unspecified powers to the states trumps the other parts of the document (like the Commerce Clause) that give Congress lots of law-making power.
Marbut’s proposed law, first passed in his home state of Montana, was called the Firearms Freedom Act. According to firearmsfreedomact.com, nine states have enacted some version of Marbut’s law, and 26 others have introduced bills to do so.
Libertarian groups like the Cato Institute have argued in favor of Marbut’s position in a lawsuit over Montana’s Firearms Freedom Act. In August, however, they lost in the U.S. Court of Appeals for the 9th Circuit. Legally speaking, this is an easy case: Congress can regulate activities that “in the aggregate, substantially affect interstate commerce,” as the court put it. That’s true of the possession of homemade guns like the Buckaroo because “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.” Case closed.
The only court that can say otherwise is the Supreme Court. Marbut is planning to ask the justices. Odds are they’ll just ignore him.
The gun nullification laws are a sideshow. The marijuana laws, on the other hand, are about substance rather than symbolism. In the end, state laws legalizing marijuana could topple a huge federal beast — the war on drugs — while the gun nullification bills are showy but impotent.