The Utah Legislature's war of words with Washington now includes Gov. Gary Herbert's signature on a local-control gun bill that could escalate the rhetoric into a court fight.
The bill seeks to thwart federal regulation of guns made, sold and kept in the state. Herbert waited until Friday's deadline to sign or veto SB11, the Utah-Made Firearms Act, apparently troubled by legislative attorneys' warning that it "is highly likely to be held to be unconstitutional." Ultimately, he decided the message is worth the legal wrangling.
"There are times when the state needs to push back against continued encroachment from the federal government. Sending the message that we will stand up for a proper balance between the state and federal government is a good thing," Herbert said in a written statement.
Montana and Tennessee have passed similar laws, and Montana's is in litigation. The bill's premise is that, by steering clear of interstate commerce that's constitutionally within Congress' power to regulate, Utah has a right to manage its own affairs.
It's not a winning argument with some constitutional law experts. The Supreme Court for most of the last century has taken a broad view of interstate commerce, including local sales with even a minuscule ripple effect on business. Congress has used that interpretation to regulate everything from the end of Jim Crow racism laws to agricultural supports.
"It would really be quite ridiculous of the [Supreme Court] to even take a case like this," said retired University of Utah law professor John Flynn. "You'd have huge impact across the federal code."
That, of course, is the point for lawmakers busy firing a volley of message bills at Congress. One bill says state agencies must ask the Legislature's permission before complying with any federal health care reform measures. Another asserts that Utah has the power to condemn federal lands for development. Sen. Margaret Dayton, R-Orem, said her gun bill, SB11, just happens to be the first across the governor's desk.
It's not actually about guns, she said. Like the other states' rights bills, it's about the 10th Amendment's guarantee that states reserve the powers not constitutionally reserved for the federal government.
"The federal overreach is out of control," Dayton said. "That tyrannical overreach is what we're trying to stop with this bill."
About a dozen companies make guns in Utah ranging from derringer pistols to semi-automatic assault rifles. Some of those manufacturers say they support the bill on principle, though they sell across state lines and likely would not be directly affected.
Herbert said that, given the state's budget difficulties, he was sensitive to the potential costs of a lawsuit, but he has been assured by Attorney General Mark Shurtleff that steps can be taken to minimize the expense.
Shurtleff has said the state can likely have any lawsuit put on hold while litigation over a nearly identical bill in Montana makes its way through the courts.
"With the confidence that SB11 will further the dialogue on this important issue without unduly burdening Utah taxpayers, I chose to sign the legislation," Herbert said.
Rep. Carl Wimmer, R-Herriman, said costs matter in a tight budget year -- but not more than rights.
"What price do you put on the liberty of our citizens?" said Wimmer, sponsor of his own bill bucking federal health care reform.
Democrats in the Legislature's minority have said message bills are chewing up too much of the session's time and could cost millions in legal fees that the state could use to avoid education and other budget cuts. Rep. Brian King, D-Salt Lake City, said there's also a less tangible cost.
"We are exposing ourselves as a state to be the object of ridicule for reasonable, intelligent people across the country," he said.
Dayton championed the bill as part of a nationwide sweep of "emerging consensus" with the power to sway the Supreme Court. But King, an attorney, said he sees no such broad movement toward ending nationwide gun regulations and it's foolhardy to get into this fight.
"We don't challenge well-established [court] precedent based on multiple decisions over decades," he said.
Flynn, the retired U. constitutional scholar, called SB11 and companion message bills "asinine" and said they ignore not just court precedent on federal regulation of interstate commerce but the Constitution's supremacy clause. Utah lawmakers are denying the federal government's legitimate authority, he said, even though they go through the motions of supporting it every day.
"Whenever they stand up and pledge allegiance to the flag," he said, "they're acknowledging that the federal government is sovereign."
Herbert said Thursday that he has concerns about the constitutionality of the bill and has serious doubts that the lawsuit will even make it to the U.S. Supreme Court.
Salt Lake County Mayor Peter Corroon, a candidate for Herbert's job, said if he were governor he would not have stuck Utah taxpayers with the potential legal bill Utah now faces.
"I'm pro-gun," he said, "but I'm also fiscally conservative."
Corroon said he supports state sovereignty but would have preferred that the law include a "trigger" so that it wouldn't take effect unless Montana's is found constitutional. Herbert also had suggested such a provision, but lawmakers weren't interested in an amendment.
Shortly after Herbert announced his decision, Dayton issued a statement saying the bill "illustrates the universal yearning for freedom and shows the people still feel the spark that inspired our ancestors at Lexington and Valley Forge. My hope is that the march toward tyranny can be turned back with our votes."
The measure exempts from federal firearms laws any guns, silencers, laser sights and weapon magazines that are made in Utah and sold for use in the state. It would not deregulate automatic weapons, exploding bullets or firearms that must be carried by more than one person.
Federal laws from which the products would be exempt deal with licensing of gun makers or sellers, criminal background checks, record-keeping and taxes.
The Utah-made products would be stamped, indicating they are made in the state, although the state has no system in place to regulate manufacturers, verify they are indeed Utah-made, or the authority to enforce violations of the exemption.