clock menu more-arrow no yes

Filed under:

Utah Legislature: Gun law may not cost Utah

Attorney General Mark Shurtleff says he can file friend-of-court brief and not fight separate battle

SALT LAKE CITY — Utah's top law enforcement officer said Gov. Gary Herbert can sign a controversial new bill without worrying about dragging the state into a potentially expensive legal battle with the federal government.

The state Legislature approved a law Feb. 10 that declares guns manufactured and sold wholly in Utah are not covered by federal firearms regulations or the Constitution's interstate commerce clause because a gun made and sold in-state can't be considered interstate commerce.

The bill is a bold stroke for states' rights, but the Legislature's own attorney warned it also is likely unconstitutional, sparking concern among some lawmakers and Herbert that it could drag the state into costly litigation.

It has also become a rallying point for some Utah gun rights groups, who have launched publicity efforts urging Herbert not to veto the bill.

Utah Attorney General Mark Shurtleff, however, said his office has advised the governor that he can sign the bill and still keep the state out of court. Shurtleff said the governor and legislative leaders can agree to delay implementation of the law pending the outcome of a similar law in Montana, the one on which Dayton's proposal was modeled, that is already being litigated.

"We informed the governor that if he's concerned about vetoing it because of the cost, there's this option," Shurtleff said. "We've done this frequently."

The attorney general said with the approval of his clients, he can file a friend-of-the-court brief in the existing case rather than fight a separate legal battle.

Herbert has expressed concern about getting the state embroiled in a fight with the federal government at a time when the budget can least afford a further burden. Herbert spokeswoman Angie Welling told the Deseret News that the governor and his legal staff are currently reviewing the legislation.

He has until next Friday to sign, veto or allow to become law without his signature.

"Gov. Herbert believes the goals and objectives of SB11, which are to mount a challenge to the current interpretation of the federal interstate commerce clause, are laudable," Welling said. "However, he is also aware that he has a constitutional and fiscal responsibility to the people of the state of Utah."

Dayton has maintained, in defense of her proposal, that garnering pro bono legal representation for the idea would not be a problem and would keep Utah taxpayers off the hook for any expenses. The Montana statute, the so called Firearms Freedom Act, is at the center of a lawsuit filed by three plaintiffs against the U.S. Attorney General in federal district court in Missoula, Mont.

One of those plaintiffs, Gary Marbut, president of the Montana Shooting Sports Association, said Friday that he had no doubt that Dayton's proposal, should it be signed into law, would be picked up by a private attorney.

"One thing that has been an issue of conversation in Utah is what expenses are incurred by passage of the bill in Utah," Marbut said. "My answer is zero. If there is litigation in Utah, it will be just like Montana."

Marbut said the Montana action, filed by himself, the Montana Shooting Sports Association and the Second Amendment Foundation, has garnered what he called a "boilerplate response" by the federal government, a motion to dismiss. He noted that regardless of the outcome at the district court level, he feels the case is headed for Ninth Circuit Court of Appeals and has many of the elements that would qualify it for an eventual review by the U.S. Supreme Court. Currently, the case is approaching an April filing deadline.

While the Montana challenge inches forward, Tennessee is the only other state to have passed similar legislation. Utah is one of almost two dozen other states with pending proposals, part of a movement Dayton describes as an "emerging consensus" to challenge the status quo of constitutional interpretation. For now, she said she remains optimistic about a positive outcome.

"The concern right now is that we get our bill signed," Dayton said. "Hopefully this will happen, and it's my expectation that it will."

Contributing: Lisa Riley Roche