Nullification: Firearms Freedom Act Introduced in Ohio
21. Oct, 2009 
31 Comments
Introduced in the Ohio House on October 16, 2009, the “Firearms Freedom Act” (HB-315) seeks “To enact section 2923.26 of the Revised Code to provide that ammunition, firearms, and firearm accessories that are manufactured and remain in Ohio are not subject to federal laws and regulations derived under Congress’ authority to regulate interstate commerce and to require the words “Made in Ohio” be stamped on a central metallic part of any firearm manufactured and sold in Ohio.”
The bill was authored by State Representatives Morgan and Martin, and currently has 15 other co-sponsors. (h/t BuckeyeFirearms.org and OhioFreedom.com)
While the HB315’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It specifically states:
The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution, particularly if not expressly preempted by federal law. The congress of the United States has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearm accessories, and ammunition.
Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.
Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. There’s been no lack of controversy surrounding them, either. The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:
The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature. ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.
Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:
“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”
“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”
Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma. Gary Marbut, author of the Montana Firearms Freedom Act, and founder of http://www.firearmsfreedomact.com/ took this position in a recent interview with the Tenth Amendment Center:
“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“
The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.
A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010. Fourteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.
While many advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.
Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.
Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
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The wording of the HB315 excerpt above is troubling in that it implies the legality of the act depends on the fact that the US Congress has not explicitly preempted intrastate firearms legislation. This, in turn, implies that Congress has the authority to preempt intrastate legislation in the first place, which it clearly does not, according to the logical sum of the interstate commerce clause and the 10th amendment.
The bill seems to almost dare Congress to start explicitly preempting intrastate legislation, at which point, we’re just fighting the same issue all over again without any lasting progress being made by the HB315 bill.
At best, the wording in question is a dangerous red herring. At worst, it emboldens Congress to think they have a clear avenue to override Ohio’s legislation.
Your article us very interesting, I have asked a lot of friends to look at this
Ohio now has a golden opportunity to replace the dubious distinction of having one of the most fraudulent election apparatus in the union with this, becoming one of the leading states of the aovereignty movement. If they pass this, let me be the first to say ‘way to go Ohio’.
Would the same principles apply with respect to the production, sale and distribution of alcoholic beverages?
As I understand it, the federal government claims that Congress has the power to pass firearms legislation and that the BATFE has the authority to enforce federal firearms laws, which restrict and regulate the manufacture and sale of firearms in every state, based upon a very broad interpretation of the interstate commerce clause.
If it is a fact that a firearm which is manufactured in a state and never leaves that state is exempt from federal regulation, would the same apply to beer, wine or other alcoholic beverages if they were produced, sold and distributed in a given state and never left that state? Or does the Alcohol and Tobacco Tax and Trade Bureau (TTB) claim some other authority for its taxing and regulatory activities?
Should state legislators consider introducing 10th Amendment legislation concerning the production and sale of alcoholic beverages similar to the Montana’s “Firearms Freedom Act”?
When we speak of “Interstate Commerce” are we speaking of the sale of items across state lines or merely the transport of items across state lines?
Lets assume that the nullification process spreads and I buy a gun stamped “Made in Montana” or “Made in Ohio” in order to circumvent the Federal sales statutes on firearms. If I move to Virginia to get a job and I take my gun that was made in Ohio or Montana to another state, say Virginia, am I now in violation of the state laws of the state where my gun was made and purchased, the new state I am residing in, the federal firearms statutes or none of these? Is my moving to another state to take a new job constitute “interstate commerce” for the purposes of firearms ownership? Can the feds arrest me for conducting interstate commerce of a firearm?
The Articles are still in effect and they provide your remedy. Basically if its your property, you can take it wherever you please. The states cant start making laws forcing you to leave your property behind, and the federal commerce clause does not effect one's personal property during a move.
"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them."
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If a citizen of Ohio has firearms that were legally purchased from another state prior to this “nullifcation”, would these firearms be “grand-fathered” in, that is, would their ownership of the said firearms be recognized.
Yes, you may still keep your guns, and unless the BATF retaliates, you will still be able to purchase guns from your local FFL, or if you have a C&R, from thos who are allowed to sell and ship to C&R holders. It probably is not in the BATFs interest to retaliate, because it would bring a major challenge against the Firearms Act on clearly constitutional grounds of due process and equal protection.
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This effort is necessary to restablish principles of State's rights which have long since eroded. Some time in the future, though, States will have ot make a decision on federal enforcement. If a gun shop owner or a private citizen legally (under the new State law purchase/sell a firearm and BATF tries to intervene, how much backing will the citizen get from the governor, state/local police, or national guard units? At some point, the feds will try to rachet this up.
The proper and constitutional way to attack the firearms laws is through the Second Amendment read in conjunction with the Preamble to the Bill of Rights. The Preamble says, we adopt these articles "to prevent misconstruction and abuse of power". The Second Amendment says, "A well regulated Militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed". The Supreme Court in Miller states that , according to the Founders, the Militia, which the Constitution does not create but rather whose existence it recognizes, consists of everyone" physically capable of bearing arms". Sounds universal to me. If a poll tax is an infringement on the right to vote, then how can a firearms tax, which is the Constitutional basis for the gun laws, not be an infringement on the right to keep and bear arms? The Second Amendment and the Preamble to the Bill of Rights exempts arms from the Commerce Clause, the Taxing Authority, and the Necessary and Proper Clause, just as the Thirteenth Amendment removes chattel slavery from any earlier protections found in the Constitution. Attacking gun control on Tenth Amendment grounds is ultimately futile and a waste of time and resources, for the argument concedes that the Feds have the right to regulate arms involved in interstate commerce.
Finally, state sovereignty resolutions without the provisions necessary to enforce them, are not worth the paper they are written on. The last time a number of the states defied the federal government the result was a long and bloody war. Is anyone ready to go this far?
Might does make Right, at least in US history.
Richard, as I noted to Ghost below, this is not a "sovereignty resolution" it's a bill – which if passed, will become law.
And as far as defying states, the last time the states defied the feds in massive numbers, there was NO war.
14 states are currently defying federal law on medical marijuana – and now the feds are backing off even more.
25 states have defied the feds on Real ID – and there were no threats about funding or money – the fact that the IRS collects taxes doesn't matter either. there were no troops or threats – the law is virtually null and void at this point. It's not fully dead, but pretty darn close.
So what happens when states defy the feds? Your liberty has a better chance.
The federal government could care less about what gun laws exist in Ohio. As long as people living in Ohio, like me, pay taxes then the feds can do what ever they want as they need only to threaten Ohio with the loss of highway or school money and the governor and legislature will go to Washington crying like little babies.
If you really want to stick it to the Feds using their own constitution against them then allow the state to violate legal tender laws and stop using increasing worthless Federal Reserve Notes and start using contracts in gold or silver. The best way to start this is to allow contracts within the state in gold and silver and NOT report them to the feds.
These resolutions are weak unless the States also make it illegal under State law for an agent of the Federal government to enforce the Federal law that contradicts with the State law that allows the residents or citizens of that State to violate the Federal law. There'll be some gnashing of teeth when the State and local police can start arresting ATF agents for doing their job of harassing the firearms industry and gun owning public.
"There Ought'a Be A Law…"
http://olgreyghost.blogspot.com/2009/05/there-oug...
Ghost – just to be clear, the Firearms Freedom Act is NOT a “resolution” – it is a law, and if passed, requires the state to enforce it.
It’s still going to be a tough hill to climb, but this is binding, and it has teeth.
I was using the term, "resolutions," in the generic sense to describe the activities of several of the States, including "The Republic," over the last few years but I appreciate the clarification, Michael, over what is going on in Ohio. May the Buckeyes give hell to the BATFEenks.
"The 'shot heard round the world' came from the barrel of a privately owned firearm that belonged to a British citizen who happened to be an American colonist who had joined with his neighbors to form a militia to resist the British army in its efforts to confiscate the musket, ball, and powder that were the physical components of the 'shot heard round the world.' Will we ever hear such a shot again?"
I agree – it should have said "the Constitution of the United States has not" instead of "the congress of the United States has not"