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Idaho bill challenges federal law

Lawmakers hope to force courts to restrict commerce clause

BOISE – Idaho lawmakers are gearing up to declare guns and ammunition made in the state exempt from all federal laws, including registration.

“This is automatically going to end up in a court case, that was the object of this bill,” said the measure’s lead sponsor, Rep. Dick Harwood, R-St. Maries. “It’s not to control guns, it’s not to do anything, it’s to change. … To tell the state of Idaho we can run our own commerce, that’s what this bill is about.”

The measure is designed to match a “firearms freedom” bill already passed in Montana – and already the subject of a federal court case – along with pending measures in nearly two dozen other states. The idea: To force a more narrow reading of the commerce clause of the U.S. Constitution by the Supreme Court, by suggesting that the use of guns not sold across state lines isn’t interstate commerce and therefore can’t be regulated at the federal level.

Harwood’s bill raised legal questions when he unveiled it. At a committee hearing last week, another lawmaker distributed an Idaho attorney general’s opinion showing the bill was “likely unconstitutional.”

“An attempt to nullify federal statutes is beyond the power of the Idaho Legislature,” the opinion found.

But Harwood said that’s not the point. “Y’know, the supreme law of the land sometimes is maybe not always right,” he said. “There was a prohibition law and that was not right. … They ended up turning around and saying, well, what we did there was wrong.” He also cited slavery, saying, “We all know that’s wrong. That didn’t get overturned until the people went back and said this is wrong. You have to push the envelope. … That’s what this bill is doing.”

Harwood brought Deputy Attorney General Brian Kane to the House State Affairs Committee to explain the law at a second hearing. Kane said the bill likely is unconstitutional under current case law, and the attorney general’s office is bound by that. But, he said, if the Legislature wants to set up a court fight over how the commerce clause should be interpreted, that’s up to lawmakers.

“That’s not a legal question to answer; that is a policy question for this Legislature,” Kane said. The bill, he said, does raise issues that “most likely will need to be resolved by a court of competent jurisdiction.”

Rep. Phil Hart, R-Athol, said, “We want to take this to court, we want to create a controversy, and that’s where we’re headed with this. And Idaho will be part of a grander scheme.” The bill then was approved on a voice vote, with just two “no” votes, and sent to the full House, which likely will debate it this week.

Hart said several private legal groups want to take on the court fight, so it wouldn’t cost the state anything. But Kane said the attorney general’s office has a constitutional obligation to defend state laws, so if the law passes, it’ll defend it.