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House gives OK to 'likely unconstitutional' gun bill

House gives OK to 'likely unconstitutional' gun bill

Dustin Hurst
March 9, 2010
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March 9, 2010

In an interesting twist on the House floor Tuesday, members of the Idaho House of Representatives passed legislation knowing full well before the vote that state's attorney general's office thinks the measure is "likely unconstitutional."

Representatives voted 52-17 on a party line vote to approve the measure, with Republicans supporting it and Democrats opposing it.

The bill is sponsored by Rep. R.J. "Dick" Harwood, R-St. Maries, and Rep. Phil Hart, R-Athol, along with eight others.  Harwood told lawmakers that his bill is intentionally setting up a lawsuit with the federal government.  Harwood said the aim of the bill is to challenge precedence over who is allowed to regulate intrastate commerce in Idaho.

Five states, including Montana, which is leading the charge on this issue, have successfully passed similar bills.  The state of Alaska passed it through its House and it now resides in its Senate awaiting a hearing.  Harwood told lawmakers that 20 more states are considering comparable legislation.

The bill would prohibit the federal government from regulating guns in Idaho, which meet certain conditions.  Under the provisions in the legislation, any firearm, firearm accessory, or ammunition manufactured in Idaho owned by a citizen living within the borders of the state would be exempt from federal authority.  All guns built in Idaho would be required to have a “Made in Idaho” tag engraved on a “central metallic part.”

The bill also contains a provision that allows the Constitutional Defense Council to use state funds to enter into litigation with the federal government should a challenge to the law arise. The state has set aside approximately $240,000 in that account.  Harwood said the money could also be used to shield private businesses from federal penalties that could result from the dispute between Idaho and the federal government.

Harwood decried federal government involvement in gun regulation, saying that though it has not outright banned guns, the federal government has effectively put tighter restrictions on guns by controlling and regulating the production of gun parts and accessories, as well as ammunition.

Rep. Phylis King, D-Boise, sits on the committee which first heard the bill and supplied an opinion for the state's attorney general’s office that said that Harwood’s bill is "likely unconstitutional," and that the power to nullify federal laws is not within the scope of the Idaho Legislature.  King urged lawmakers to vote in opposition to the bill, saying that she is concerned with how it could play in financial matters for the state.  She argued that the state, because of unintended consequences of the legislation, could see losses in funding for roads or other federally-funded programs.

"How much is this going to cost us?" asked King.

Harwood had no comment about the possible loss of federal dollars, but instead warned lawmakers that the price of not adopting the legislation could be steep.

"It’s going to cost you more of your freedom," said Harwood.  Hart defended the bill's costs, saying that several private institutions, including the Goldwater Institute in Arizona, have offered free legal work to the state if the federal government decides to sue.

Rep. Marv Hagedorn, R-Meridian, told lawmakers that the bill's cost is of a lesser concern, but the importance would be in the pushing back of federal mandates and regulations.  Hagedorn said he purchased a silencer for one of his guns and was required by the federal government to purchase a $200 tax stamp along with it.  He said that if he were to sell that accessory, which he uses to help stave off hearing loss, to his son, the federal government would force his son to purchase another $200 tax stamp.

"Why is it that the federal government needs to control the commerce between myself and my son?" asked Hagedorn.

The measure now heads to Senate for consideration.

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