If you were a state lawmaker and had a pot of public money this year, which would you rather do: Use it to help provided needed services or give it to attorneys so they can fight a battle they are certain to lose?
Sen. Margaret Dayton's gun rights bill, SB11, sounds great. It hits all the right buttons for the growing crowd of people who are angry at the federal government. It says if a gun is manufactured and sold entirely within the state of Utah, it can't be subject to federal firearms laws. The Constitution allows Congress to regulate only interstate commerce. A gun made and sold in-state can't be considered interstate commerce. It's a perfect strike for states' rights, modeled after laws that already passed in Montana and Tennessee.
And it's almost guaranteed to lose at the Supreme Court, whose conservative majority already has ruled in cases similar to this.
Dayton's bill has passed the House and Senate. We urge Gov. Gary Herbert to veto it — not because we don't believe in states' rights, but because we don't feel the state gains much by tilting at windmills.
Seven years ago, the 9th Circuit Court of Appeals considered a case, U.S. v. Stewart, that concerned a man named Robert W. Stewart who possessed a homemade machine gun and tried to prove that was legal because he hadn't engaged in interstate commerce. Federal law prohibits the possession of machine guns. He won in the Ninth Circuit Court of Appeals, but the U.S. Supreme Court disagreed. In its decision, the court referred to a decision it made in a case involving the use of marijuana for medical purposes in California. The relevant part of the Constitution, according to the court, is not so much the Commerce Clause as the Supremacy Clause. Part of the ruling said: "... limiting the activity to marijuana possession and cultivation 'in accordance with state law' cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is 'superior to that of the states to provide for the welfare or necessities of their inhabitants,' however legitimate or dire those necessities may be."
We doubt a court that has upheld the federal government's right to prohibit an individual from possessing a homemade machine gun, and its right to pre-empt state drug laws, would now suddenly reverse itself and agree that locally made firearms are a matter of states' rights. Nor do we see the urgency to allow Utahns to avoid background checks when buying firearms.
The best course is to let taxpayers in Montana and Tennessee wage this fight and for Utah's politicians to worry about more pressing local matters.