Sarah Morice-Brubaker is Assistant Professor of Theology at Phillips Theological Seminary in Tulsa, and a regular blogger for the online religion magazine Religion Dispatches.
The Oklahoma Firearms Freedom Act has been reintroduced this legislative session as HB 2021, after twice being vetoed by Governor Henry. The bill would make firearms, firearm accessories, and firearm ammunitions exempt from federal regulation, provided they are made and sold only within Oklahoma.
The legislation, though, was not made exclusively in Oklahoma. To the contrary, a number of states have passed such legislation or will be considering it this year. All this is good news to the Tenth Amendment Center, which tracks Firearm Freedom-type bills and has sample legislation on its website.
The rationale comes from particular interpretations of the Tenth Amendment and the Commerce Clause. The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Meanwhile, the Commerce Clause states positively that Congress has the power to regulate commerce between states, or with other countries or tribal nations.
In other words, if a firearm is made and sold within the same state — or so the thinking goes — then it shouldn’t be subject to federal regulation. After all, if powers not specifically granted to the federal government belong to the states, and the constitution gives Congress the power to regulate interstate and international commerce, then intra-state commerce should be fair game, right?
Well, not necessarily. The Necessary and Proper Clause actually gives Congress a lot of leeway, and the Supremacy Clause means federal law takes precedence over state law. That is exactly what the ATF pointed out in its open letters to federal firearms licensees in Montana and Tennessee, where Firearms Freedom Acts were passed.
Nevertheless, it’s important to pay attention to the burgeoning tenther movement, which has been gaining traction for the last several years. The term “tenther” was originally meant as a pejorative. Critics wanted to liken the movement’s supporters to conspiracy-minded groups like birthers and truthers. Inevitably, though, some members of the movement ended up embracing the term, and now you can purchase a coozie bearing the words “110% Certified Tenther.”
The tenther position is not just about guns. If the 110% coozie doesn’t do it for you, you could also buy this one with a marijuana leaf. Nor is the tenther position strictly associated with the libertarian position. A tenther could conceivably support a state’s right to pass a law that a libertarian might deem an instance of government overreach.
Nor do the movement’s legislative inroads correlate with Christian religiosity. (This is what particularly interested me, as a religion nerd.) Compare these two maps: This one, showing state Firearms Freedom measures; and this one, showing state percentages of Christian adherents. Some states, like Oklahoma, have a high proportion of Christian adherents and are also arenas for Firearms Freedom legislation. But some, like Arizona, do not.
No, the tenther movement is about using the US Constitution to get leverage against the federal government specifically. And they show no sign of halting their efforts even in the fact of federal pushback. In Montana, supporters of the Firearms Freedom filed a lawsuit insisting that they were within their legal rights in refusing federal regulation of state-manufactured firearms. When the lawsuit was dismissed, plaintiffs have filed an appeal with the Ninth Circuit, and oral arguments are scheduled to begin next month.
Meanwhile, back in Oklahoma, Brad Henry is no longer governor, and Gov. Mary Fallin has been generally supportive of pro-gun legislation. If the Oklahoma legislature passes HB 2021, the practical impact would likely be minimal, unless the Ninth Circuit were to decide in favor of the Montana plaintiffs. The significance here lies in the national trend of which the HB 2021 is a part.
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