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Judge Napolitano: Proposed State Laws on Gun Rights Would Not Hold Up Against Federal Challenges

This afternoon on America Live, Judge Andrew Napolitano weighed in on the push by nine states to pass laws to block the federal government from restricting gun ownership. State lawmakers are anticipating some sort of gun control legislation to be passed at the federal level, possibly an assault weapons ban. The proposals

argue that guns made and kept within a state's borders should not be federally regulated.

Here's more background from FoxNews.com:

“There’s a lot of momentum,” Montana activist Gary Marbut told FoxNews.com on Monday.

Marbut was behind the original Firearms Freedom Act, which says the Commerce Clause allowing Congress to regulate inter-state commerce does not apply to the in-state manufacturing, selling and ownership of firearms. Montana passed the bill in 2009.

Since then, a host of other states have tried to pass copycat legislation. Alabama, Georgia, Indiana, Michigan, Mississippi, Nebraska, Oklahoma, Pennsylvania and Washington have proposed such legislation since January -- following the Dec. 14, 2012, shooting in which 20 first-graders and six adults were killed inside a Newtown, Conn., elementary school.

However, Montana's legislation is hardly settled law. Shortly after the law passed in his state, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives wrote Marbut to say federal law still supersedes.

Marbut acknowledges he wrote the legislation to set up a legal challenge and “roll back a half a century of bad precedent.”

The bill is scheduled to finally get its day in court when the Ninth Circuit begins oral arguments March 4. Marbut expects to lose in the liberal-leaning court, which includes San Francisco, Seattle and Portland, Ore. But he thinks such a decision will put him in a better position to appeal to the country’s highest court.

“The mood of the country is right for the Supreme Court to consider what I think is a great mistake,” said Marbut.

Megyn Kelly asked Judge Napolitano about the chances for this type of law to survive a challenge by the federal government. He said "as much as he loves" the proposals, he does not see how they will stand up against 60 years of precedent that has expanded Congress' power to regulate interstate commerce.

The judge argued the Constitution's interstate commerce clause has now been "so blown out of proportion ... that Congress can regulate almost anything it wants."

Watch the discussion:

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