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May 06, 2009

Montana Specifically Exempts Its Own Guns from Federal Firearms Laws

Someone tipped me to this but I said I hadn't heard about it and it seemed unlikely to me.

I was wrong.

Section 4. Prohibitions. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana..

Essentially, then, any weapon may be manufactured (or modified, using "generic parts" from other states or other parts manufactured in Montana) and will be free of all federal regulation and law whatsoever. Only Montana law will control such weapons. And as I understand it Montana itself has very few laws about weapons on the books.

The rest of the law is actually just a legal argument, phrased as a law, explaining why federal law does not apply to Montana, unless it wants it to. (The 10th Amendment is cited.)

Here's a link to an AP story.

Montana is trying to trigger a battle over gun control and perhaps make a larger point about what many folks in this ruggedly independent state regard as a meddlesome federal government.

In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.

That notion is all but certain to be tested in court.

...

Carrie DiPirro, a spokeswoman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had no comment on the legislation. But the federal government has generally argued that it has authority under the interstate commerce clause of the U.S. Constitution to regulate guns because they can so easily be transported across state lines.

...

Montana's leading gun rights organization, more hardcore than the National Rifle Association, boasts it has moved 50 bills through the Legislature over the past 25 years. And lawmakers in the Big Sky State have rebelled against federal control of everything from wetland protection to the national Real ID system.


Under the new law, guns intended only for Montana would be stamped "Made in Montana." The drafters of the law hope to set off a legal battle with a simple Montana-made youth-model single-shot, bolt-action .22 rifle. They plan to find a "squeaky clean" Montanan who wants to send a note to the ATF threatening to build and sell about 20 such rifles without federal dealership licensing.

If the ATF tells them it's illegal, they will sue and take the case all the way to the U.S. Supreme Court, if they can.

At the first link, it's noted that the law will make silencers legal, and I suppose this will also permit weapons like the AR-15 to be converted to fully-automatic capability. (Which I understand is a fairly easy modification.) Unless Montana also outlaws such weapons. I don't know if state law does outlaw them or not. Wrong: See correction below.

Gonzalez v. Raich: DrewM. points out that a similar challenge to federal commerce-clause authority recently occurred with regard to private cultivation of marijuana. And the Supreme Court ruled 6-3 the power of the commerce clause (which, in strong form, seems pretty much absolute) overcame state law to the contrary.

In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the commerce clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary. Stevens argued that the Court's precedent "firmly established" Congress' commerce clause power to regulate purely local activities that are part of a "class of activities" with a substantial effect on interstate commerce. The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market. The majority distinguished the case from Lopez and Morrison. In those cases, statutes regulated non-economic activity and fell entirely outside Congress' commerce power; in this case, the Court was asked to strike down a particular application of a valid statutory scheme.

This is a recent case (2005) and it commands a 6-3 majority, which is much better than average in these sorts of divisive cases about starting assumptions and basic principles.

However, the court distinguished between economic and non-economic activity. Drug cultivation seems at least somewhat more of an economic activity, affecting the "stream of commerce," than gun modification. I suppose it's possible the court can distinguish this if it wants to, or allow some of it while striking much of it down. For example, it could permit modifications while still upholding the fed's power to ban wholesale, straight-from-the-factory manufacture of prohibited arms. One can make an argument that most (but not all) drug manufacture is intended for commercial purposes, whereas most (but not all) gun modifications are intended strictly for personal use and hence are "non-economic" in impact.

One could.


Machineguns Still Prohibited: ThomasD alerts me to the exception in the law for weapons that fire "two or more projectiles" with a single trigger activations. I read that, but for some bizarre reason I could only imagine it meant duplex cartridges (cartridges which contain two bullets, both fired at once) or even shotgun pellets.

It didn't occur to me, despite wondering about machine guns, that this specifically excluded automatic weapons from Montana's in-state protections. And yet -- it does. So obvious, and I missed it.

And several commenters tell me it's not as easy to convert a semi-automatic weapon to fully automatic as I imagine.



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posted by Ace at 04:00 PM

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