South Dakota Guns May be Exempt from Federal Regulation

In the interest of adding South Dakota’s voice the chorus of those who would reaffirm that the federal government is not sovereign over the states, several of our elected officials have proposed the following as Senate Bill 89:

FOR AN ACT ENTITLED, An Act to exempt from federal regulation any firearm, firearm accessory, or ammunition manufactured and retained in South Dakota.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. Terms used in this Act mean:
(1) “Firearm accessory,” any item that is used in conjunction with or mounted upon a firearm but is not essential to the basic function of a firearm, including any telescopic or laser sight, magazine, flash or sound suppressor, folding or aftermarket stock and grip, speed loader, ammunition carrier, or light for target illumination;
(2) “Generic and insignificant part,” any firearm part, including a spring, screw, nut, and pin;
(3) “Manufactured,” any firearm, firearm accessory, or ammunition which has been created from basic materials for functional usefulness, including forging, casting, machining, or other processes for working materials.
Section 2. Any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce. It is declared by the Legislature that those items have not traveled in interstate commerce. This section applies to any firearm, firearm accessory, and ammunition that is manufactured in South Dakota from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Any generic and insignificant part that has other manufacturing or consumer product application is not a firearm, firearm accessory, or ammunition, and importation of such parts into South Dakota and incorporation into a firearm, a firearm accessory, or ammunition manufactured in South Dakota does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the Legislature that any basic material, such as unmachined steel and unshaped wood, is not a firearm, firearm accessory, or ammunition and is not subject to congressional authority to regulate any firearm, firearm accessory, or ammunition under interstate commerce as if it was actually a firearm, firearm accessory, or ammunition. The authority of Congress to regulate interstate commerce in basic material does not include authority to regulate any firearm, firearm accessory, or ammunition made in South Dakota from such basic material. Any firearm accessory that is imported into South Dakota from another state and that is subject to federal regulation as being in interstate commerce does not subject a firearm to federal regulation under interstate commerce because it is attached to or used in conjunction with a firearm in South Dakota.
Section 3. The provisions of section 2 of this Act do not apply to:
(1) A firearm that cannot be carried and used by one person;
(2) A firearm that has a bore diameter greater than one and one-half inches and that uses smokeless powder, not black powder, as a propellant;
(3) Ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or
(4) A firearm that discharges two or more projectiles with one activation of the trigger or other firing device.
Section 4. A firearm manufactured or sold in South Dakota pursuant to this Act shall have the words, Made in South Dakota, clearly stamped on a central metallic part, such as the receiver or frame.
Section 5. The provisions of this Act apply to any firearm, firearm accessory, or ammunition that is manufactured and retained in South Dakota after July 1, 2010.

On a purely pragmatic note, when one considers the gun manufacturers who are domiciled in this state, we would seem well prepared to put “Made in South Dakota” on a number of fine firearms.

Of course, there is more (there is always more, isn’t there?). Eric Holder is already moving against Montana (the first state to pass a bill of this type) with a request that the bill be simply dismissed out of hand:

The United States government has filed a Motion to Dismiss the lawsuit filed by the Montana Shooting Sports Association and the Second Amendment Foundation. The suit was filed the support the Montana Firearms Freedom Act which declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states.

Interestingly, the motion is based on two things: 1) a belief that the federal government gun regulations trump all state laws; and 2) the belief that the MSSA and SAF have no standing to bring suit. While the issue of standing is something which I struggle to understand (as my lawyer friends will confirm) the first item is at the heart of a number of issues which are currently under serious discussion.

In short, it is the question of whether the states may do anything without federal government approval. Kudos to those members of the South Dakota legislature who are willing to assert that states do not need to get permission for their citizens to engage in activities which undergird fundamental rights–rights which are recorded in, but not given by, the Constitution of These United States.