Could an Idaho ballot initiative exempt Idaho-made firearms, accessories, and ammunition from federal regulation?

Plain-English summary

A petitioner filed a 2010 Idaho ballot initiative declaring that certain personal firearms, accessories, and ammunition manufactured in Idaho and kept within Idaho's borders were "not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce." It was Idaho's version of a "Firearms Freedom Act" that several states attempted in 2009 and 2010.

The Attorney General's Certificate of Review concluded the initiative was clearly unconstitutional. The Supremacy Clause (U.S. Const. art. VI) makes federal law "the supreme law of the land." State law that conflicts with federal law is "without effect" (Altria Group, Inc. v. Good (2008)). Federal law is "as much the law of the several States as are the laws passed by their legislatures" (Haywood v. Drown (2009)). The preemption doctrine "invalidates any state law that contradicts or interferes with any Act of Congress" (Hayfield Northern Railroad Co.).

Idaho (and its political subdivisions) would violate the federal Constitution if it interfered with the acts of Congress, which would include declaring a federal law unconstitutional. The AG noted that any genuine challenge to the regulatory authority of Congress over firearms would need to be raised in the appropriate federal forum. The AG concluded that no alterations or revisions could render the initiative constitutional.

The opinion did not engage the underlying Commerce Clause analysis in detail, but the broader doctrinal answer (set out by the U.S. Supreme Court in Wickard v. Filburn (1942) and Gonzales v. Raich (2005)) is that Congress can regulate intrastate activities that, taken in the aggregate, substantially affect interstate commerce. Federal courts have applied that reasoning to firearms regulation. A Ninth Circuit decision on the parallel Montana Firearms Freedom Act, Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975 (9th Cir. 2013), reached this conclusion shortly after the Idaho initiative was reviewed.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did the proposed Idaho Firearms Freedom Act actually do?

It would have declared that firearms, accessories, and ammunition manufactured within Idaho and kept inside Idaho's borders were not subject to federal law or federal regulation, including registration. The premise was that purely intrastate manufacture and possession lies outside Congress's commerce power. Several states passed similar laws around 2009 and 2010 with the same framing.

Why does the Supremacy Clause defeat that approach?

Article VI of the U.S. Constitution makes federal law "the supreme law of the land." Once a federal statute is a valid exercise of an enumerated power (typically the Commerce Clause for firearms regulation), no state law can declare it inapplicable within the state. The Supreme Court has held over many decades that state laws that contradict federal law are "without effect."

Doesn't the Tenth Amendment protect intrastate-only activity?

The Tenth Amendment reserves powers "not delegated to the United States by the Constitution." The argument behind these initiatives is that Congress's commerce power doesn't reach purely intrastate manufacture. Federal courts have rejected the premise. Wickard v. Filburn (1942) and Gonzales v. Raich (2005) hold that Congress can regulate intrastate activity that, in the aggregate, substantially affects interstate commerce. The Ninth Circuit applied that reasoning to the Montana Firearms Freedom Act in 2013 and held it preempted.

Why didn't the AG suggest any revisions?

Because the initiative's central mechanism (carving out intrastate firearms manufacture from federal regulation) is itself the constitutional defect. The AG took the same posture in the parallel arrest-authority and federal-law-nullification initiatives filed by the same petitioner the same week.

Is this part of a broader movement?

Yes. The 2010 Idaho Firearms Freedom Act initiative is one of a wave of "Firearms Freedom Acts" introduced in many states starting with Montana in 2009. Most were enacted as state legislation rather than ballot initiatives. The Ninth Circuit in Montana Shooting Sports Ass'n v. Holder (2013) held the Montana statute preempted; that ruling generally applies to similar state laws within the Ninth Circuit, including any Idaho version.

Background and statutory framework

The Certificate of Review process under Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review before signature gathering. The review covers form, style, and substantive legal problems including any constitutional defects. Recommendations are advisory; the AG takes no position on policy.

The federal preemption analysis applies in straightforward fashion. Article VI of the U.S. Constitution makes federal law supreme. State law that conflicts with federal law is "without effect" (Altria Group, Inc. v. Good (2008); Haywood v. Drown (2009)). The preemption doctrine "invalidates any state law that contradicts or interferes with any Act of Congress" (Hayfield Northern Railroad Co. v. Chicago and Northwestern Transp. Co.).

The federal firearms regulatory regime, including the National Firearms Act (26 U.S.C. ch. 53), the Gun Control Act of 1968 (18 U.S.C. ch. 44), and various ATF regulations, was enacted under Congress's commerce power and applies to intrastate as well as interstate firearms activity. Wickard v. Filburn (1942) and Gonzales v. Raich (2005) establish the aggregation principle that brings intrastate activity within the commerce power. Federal courts addressing the Firearms Freedom Acts of various states have held them preempted.

Citations

U.S. Constitution: art. VI.

Idaho Code: § 34-1809.

Cases: Altria Group, Inc. v. Good, 555 U.S. 70 (2008); Haywood v. Drown, 556 U.S. 729 (2009); Hayfield Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622 (1984).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021010a.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 10, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re: Certificate of Review
Proposed Initiative Related to Idaho Firearms Freedom Act

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on January 19, 2010.
Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has
prepared the following advisory comments. Given the strict statutory timeframe
within which this office must review the petition, our review can only isolate areas
of concern and cannot provide in-depth analysis of each issue that may present
problems. Further, under the review statute, the Attorney General's
recommendations are "advisory only." The petitioners are free to "accept or
reject them in whole or in part." Due to the number of initiatives that were
submitted for review and the available resources for performing the reviews, we
did not communicate directly with the petitioner as part of the review process.
The opinions expressed in this review are only those that may affect the legality
of the initiative. This office offers no opinion with regard to the policy issues
raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short
and long ballot titles. The ballot titles must impartially and succinctly state the
purpose of the measure without being argumentative and without creating
prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

A. Introduction

This section declares that certain types of personal firearms, accessories, and
ammunition manufactured in Idaho and that remain within its borders are "not subject
to federal law or federal regulation, including registration, under the authority of
congress to regulate interstate commerce."

B. The Initiative is Clearly Unconstitutional

The Supremacy Clause of the United States Constitution provides: "This
Constitution, and the laws of the United States which shall be made in pursuance
thereof ... shall be the supreme law of the land; and the judges in every state shall
be bound thereby, anything in the Constitution or laws of any state to the contrary
notwithstanding." U.S. Const., art. VI, § 2 (emphasis added). State law that conflicts
with federal law is "without effect." Altria Group, Inc., v. Good, - U.S. -, 129 S. Ct.
538, 543, 172 L.Ed.2d 398 (2008). Under the Preemption clause, it is "clear that
federal law is as much the law of the several States as are the laws passed by their
legislatures." Haywood v. Drown, - U.S. -, 129 S. Ct. 2108, 2114, 173 L.Ed.2d 920
(2009). "Preemption doctrine stems from the Supremacy Clause of the United
States Constitution and invalidates any state law that contradicts or interferes with
any Act of Congress." Hayfield Northern Railroad Co., Inc. v. Chicago and
Northwestern Transp. Co., 467 U.S. 622, 627, 104 S. Ct. 2610, 81 L.Ed.2d 527
(1984). The State of Idaho (and its political subdivisions) would violate the federal
Constitution if it interfered with the acts of Congress, which would include declaring a
federal law unconstitutional. Any challenge to the regulatory authority of Congress
would need to be raised in the appropriate federal forum.

C. Recommended Revisions or Alterations

There are no alterations or revisions to this initiative that would render it
constitutional.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form,
style, and matters of substantive import. The recommendations set forth above have
been communicated to the Petitioner via a copy of this Certificate of Review,
deposited in the U.S. Mail to Alanna Grimm, 2817 E. St. James Ave., Hayden, Idaho
83835-7544.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
KENNETH K. JORGENSEN
Deputy Attorney General