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Utah Legislature hopes to hold a gun to federal law

SALT LAKE CITY — The Utah Legislature completed a succinct memo to the federal government at the Capitol on Wednesday — stay out of the state's business.

That message was delivered via House passage of SB11, a bill sponsored by Sen. Margaret Dayton that articulates a direct challenge to the U.S. Constitution, based on an interpretation of states' rights that relate to commerce.

Dayton's challenge comes in the form of legislation declaring that those who manufacture and sell guns and ammunition within Utah state boundaries are not beholden to federal firearms regulation.

Her bill, which found favor in the Senate last week, now moves on to the desk of Gov. Gary Herbert and, if it gets the governor's signature, could very well make a stop in federal court in the near future, a likelihood Dayton has said she welcomes.

"It's the duty of our state to challenge the courts," Dayton said last week during Senate debate. "This is not about accepting the status quo, it's about questioning the status quo."

Taking the lead on waging that battle, however, may not find favor with Herbert, who last week told the Deseret News now isn't the time for Utah to incur large litigation costs on that issue or other state's rights bills.

"I think we need to challenge the federal government as we have opportunity," Herbert said. "But, I'm not really too keen on putting us in a position where we cause litigation that we have to pay for. I don't know if we want to fight a fight where we have to dump a million dollars into litigation."

Following SB11's passage Wednesday, Herbert spokeswoman Angie Welling said the governor would work with Dayton and legal counsel in reviewing the bill, which he has 10 days to complete before signing the bill, vetoing it or letting it become law without his signature.

In the meantime, a first step in the constitutional challenge inherent to Dayton's bill has already been taken in federal district court in Montana, where the so-called Montana Firearms Freedom Act, the model for her SB11 that became law in the Big Sky state last fall, awaits a hearing this spring.

The timing of a Utah version of that court challenge, and the costs associated with it, are also a concern for lawmakers who opposed the measure.

Rep. Rebecca Chavez-Houck, D-Salt Lake, said waiting out the Montana case could save the state much-needed dollars in a dire economic year.

"I can appreciate the concerns being addressed regarding issues of state sovereignty," she said. "But, at a time when we are financially struggling, the majority of my constituents have asked why we would pass legislation that might require us to expend precious state resources to defend a questionably constitutional law."

The issue of SB11's constitutionality has already been addressed in a review performed by Utah legislative counsel that attached a warning to Dayton's bill file that reads, in part "this legislation is highly likely to be held unconstitutional under the United States Constitution's Supremacy Clause."

Gary Marbut, president of the Montana Shooting Sports Association, is a plaintiff in the Montana challenge, along with his association and the Second Amendment Foundation. Marbut lauded the Utah Legislature's support of Dayton's bill and said, pending Herbert's signature, that passage of the law in the Beehive State will aid his fight.

"We need this litigation to go all the way to the Supreme Court," Marbut said. "If there were to be litigation from Utah, also attempting to invalidate the commerce clause … it will add to the emerging consensus."

That emerging consensus, which Marbut said now consists of bills passed in Montana and Tennessee and pending legislation in 22 other states, would likely add to the chances of the case getting a hearing before the nation's top court. He also contended that, like the pro bono legal presentation his group has obtained, Utah could likely defend its bill free of charge.

See the bill at le.utah.gov/~2010/htmdoc/sbillhtm/SB0011.htm.

e-mail: araymond@desnews.com