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North Dakota’s Fight to Expand Gun Rights

gun rights

President Biden, who campaigned on an effort to end the manufacture and sale of assault rifles and high-capacity magazines, has called on Americans to reinstate federal bans on assault weapons that he helped pass as a Senator in the 1990s. North Dakota legislators, however, introduced legislation to carve out exceptions to federal regulations and expand gun rights and state freedoms for North Dakota gun owners.

HB 1272: The Homemade Gun Bill

The House introduced HB 1272, a “Homemade Gun” bill that would have exempted firearms made entirely in North Dakota from federal regulations. Under the proposed law--which failed to pass in the Senate--guns, accessories, and ammunition that were manufactured entirely within North Dakota and remain within the state would no longer be subject to federal law, including federal registration requirements. State regulations would still apply.  

The bill’s sponsors noted that it is unlikely that a major gun manufacturer would come to North Dakota. Therefore, the legislation focused primarily on 3D-printed firearms.  The proposed legislation would have allowed individuals to manufacture some form of homemade guns and ammunition, so long as they were only used in North Dakota.

Had it passed, the legislation could have ultimately ended up in the United States Supreme Court, with a case addressing the intersections of the Commerce Clause, the Supremacy Clause, the Second Amendment and Tenth Amendments, and prior case law interpreting these constitutional provisions.

The Commerce Clause

Under the Commerce Clause of the United States Constitution, Congress has the power to regulate commercial activity that occurs across state lines.

The Supreme Court has previously found that Congress can exercise its power under the commerce clause as long as the regulated activity involves: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, including persons or things; or (3) activities that substantially affect interstate commerce.

Courts have historically used the Commerce Clause to uphold the validity of laws that regulate the transfer, possession, sale, receipt, and manufacture of firearms and accessories. States have been permitted to pass laws that relate to matters exclusively within their territorial jurisdiction, and states have enacted their own laws regarding the sale, possession, and disposition of firearms.   But proponents of the North Dakota legislation believed that the federal government’s interpretation of the Commerce Clause is too broad.  They sought to take back the rights reserved to the states under the Tenth Amendment.

The Supremacy Clause

Had this passed, courts also would have needed to consider the implications of the Supremacy Clause of the Constitution, which says that federal laws overrule state laws.

Opponents of North Dakota’s homemade gun law cite similar legislation that was passed in Montana but was ultimately shot down.  There, the court found that guns made in Montana could easily end up outside state borders. Montana previously passed a law that applied to guns manufactured and kept entirely within the state of Montana. The law was less restrictive than federal law and sought to ensure that the people of Montana could enjoy their gun rights without the threat of federal prosecution.

The Montana law was ultimately dismissed under the theory that the federal government could regulate firearms for the same reasons that federal regulations preempt state medical marijuana laws. However, the court did not address whether Congress has the power to override state laws that exert powers reserved to the states under the Tenth Amendment to protect liberties guaranteed by the Second Amendment.

The Tenth and Second Amendments

The Tenth Amendment states that “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.”

Proponents of HB 1272 believe that they are simply taking back states’ rights that are guaranteed under the Tenth Amendment and the Second Amendment.

Historically, the Supreme Court has found that Congress has broad authority under the Commerce Clause to regulate laws that overlap with traditional state jurisdiction, and that regulation of commerce does not violate the Tenth Amendment.

As a result, Congress has passed numerous laws that regulate the possession, receipt, transfer, and manufacture of firearms, and these laws have been upheld under the Commerce Clause. However, Congress cannot exceed other constitutional doctrines, such as the Second or Tenth Amendments to the Constitution.

If passed, North Dakota’s Homemade Gun law will set up a Constitutional showdown, pitting states’ rights against the power of the federal government to regulate commerce.

Fremstad Law. Moving You Forward.

At Fremstad Law, our mission is to move our clients forward. If you have questions about HB 1272 and how it might affect your gun rights, the lawyers at Fremstad Law are here to help.

Learn more about our people and our services, and contact us today to schedule a confidential meeting to discuss how we can help.


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