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

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.