Montana Firearms Freedom Act


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Lou McGopher
July 20, 2009, 11:59 AM
Recently the Montana State Legislature passed, and their Governor signed, HB 246. HB 246 declares that any guns and ammunition made and retained in Montana are not subject to ANY federal regulation under the authority of Congress to regulate commerce “among the states.”

http://www.lewrockwell.com/blog/lewrw/archives/030403.html

Text of the bill:
http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm

I remember reading somewhere that the Governor of Texas mentioned doing the same thing, although I don't know if that went anywhere.

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DHJenkins
July 20, 2009, 12:03 PM
In TX, the anti's stalled until the session was over. Gov. Perry is set to call a special session, but I think the only 2A stuff that's going to see the light of day during that is campus carry.

TX1911fan
July 20, 2009, 04:28 PM
This could end up as a pretty interesting fight. You just need a gun shop willing to take a chance. If the GOA or NRA agreed to defend them, we might see a case. I put my money on the feds winning. I hate that Commerce Clause BS, but the Supreme Court has upheld it time and again.

AZCOWBOY
July 20, 2009, 06:47 PM
http://www.scribd.com/doc/17439762/ATFfirearmsfreedomact

the atf has already sent out letters so this will going to court then all the way to the scotus then wait and see will then depend God, Guts, and Guns !

Big Mike
July 20, 2009, 07:45 PM
OK.

Curious, what manufacturers are in Montana?

Lou McGopher
July 20, 2009, 11:20 PM
what manufacturers are in Montana?

Anybody who's brave enough to challenge the BATF?

meytind
July 20, 2009, 11:29 PM
the atf has already sent out letters so this will going to court then all the way to the scotus then wait and see will then depend God, Guts, and Guns !
Hope we win! The long term repercussions of the Federal government losing this case would be unbelievable.

RDak
July 21, 2009, 08:35 AM
Anyone have the link to that old 1930's case SCOTUS ruled on that had to do with a farmer growing stuff for local sale?

IIRC, that case had to be the one of the dumbest decisions by the SCOTUS in history. Got to be in the top five IMHO.

Lou McGopher
July 21, 2009, 09:00 AM
RDak, was it anything like when it ruled that medical marijuana grown, sold, and consumed in California fell under federal jurisdiction because it might affect the interstate market for illegal marijuana?

RDak
July 21, 2009, 09:47 AM
Never heard of that case but it sure sounds about as ridiculous!! :D:D:D

ETA: I bet that marijuana case cited the case I was asking about?

Lou McGopher
July 21, 2009, 11:22 PM
ETA: I bet that marijuana case cited the case I was asking about?

Maybe. I think it was a lot more recent than the 1930s, though. :)

Either way, it just goes to show how weasely the govt will get in order to curtail our liberty.

Aaron Baker
July 21, 2009, 11:55 PM
The wheat case is Wickard v. Filburn, 317 U.S. 111 (1942). It was no doubt cited by the more recent case deciding that just because marijuana was illegal on a federal level, that doesn't mean that the government can't regulate the legal intrastate commerce of marijuana because of the affect it has on the illegal interstate commerce of marijuana.

Wickard has always been one of my least favorite cases.

If I recall, Montana's act doesn't allow machine guns. Too bad. That's the real test case. Obviously if you build a suppressor in Montana, that means you didn't buy one from another state (and pay the $200 tax stamp). That means you're clearly affecting interstate commerce a la Wickard.

What about machine guns, though? There's no new manufacture of machine guns, unlike wheat, weed and suppressors. So if you build a new machine gun, then what interstate affect does that have? None. You couldn't have bought a new machine gun from another state either.

Of course, I suppose the Supreme Court could say its affecting the interstate commerce in used machine guns. We'd just have to see.

Aaron

25cschaefer
March 10, 2011, 04:59 PM
Curious, what manufacturers are in Montana?


Probably the most famous is Cooper Firearms
Montana Rifleman, they make the 1999 action
Serengeti Rifles
Lilja Precision Rifle Barrels
Mundon Enterprises does a lot of custom work
Elite Iron makes awesome suppressors
C. Sharps Arms Inc.
Rocky Mountain Rifles

I know I am missing a few and there are a ton of stock, barrel and accessory makers in MT

gatorjames85
March 10, 2011, 05:10 PM
See Wickard v. Filburn, above and Gonzales v. Raich. I don't think we are going to win this one, as much as I would like to.

hermannr
March 10, 2011, 07:42 PM
Buffalo Bore. "Made in Montana" (not "made in the US") I bet those boys would just love an excuse to manufacture firearms too.

hirundo82
March 10, 2011, 07:54 PM
See Wickard v. Filburn, above and Gonzales v. Raich. I don't think we are going to win this one, as much as I would like to.

US v. Stewart (http://en.wikipedia.org/wiki/United_States_v._Stewart_(2003)) is also binding precedent in this case since Montana is in the 9th Circus.

henschman
March 11, 2011, 03:02 PM
This law is an example of nullification and interposition. The point of nullification isn't to win a Supreme Court case... nullification challenges the notion that the Supreme Court is the sole interpreter of the constitution. The idea is that states can interpret the constitution themselves, and when the national government is in violation of it, can "nullify" the unconstitutional law within their borders and the state government can interpose itself to protect its citizens from agents of the national government who attempt to enforce it within their territory.

belercous
March 13, 2011, 12:44 AM
Justice Kennedy has stated that he will not overturn the present understanding of the Commerce Clause (which began with Wickard). Justice Kennedy is the swing vote, all close cases are directed towards him. (And he loves it.)

The Montana Firearms Freedom Act has no chance of being held constitutional, at least by SCOTUS in its present incarnation. To do so would make state law supreme over federal law, which the Constitution is quite clear about. The M.F.F.A. is pure political posturing, but nothing more.

The idea of state nullification, while popular in the early 19th Cent., was pretty much settled 150 yrs. ago. In legal circles, the notion has no traction and is not taken seriously.

Also note; the Gonzales v. Raich case held that the federal gov. could prosecute cannabis growers in compliance with their state's law. It re-affirrmed the Supremacy Clause of the Constitution.

The case of U.S. v. Lopez (for the first time after the New Deal) struck down a federal law prohibiting firearms near a school zone as an over-reach of the Commerce Clause. However, the same basic law was then passed by Congress which included the language of "finding" which linked firearms to "interstate commerce." The same basic law (guns & school zones) is now valid. Or at least SCOTUS doesn't have a problem with it.

Prosser
March 13, 2011, 05:39 AM
Freedom Arms?

kingpin008
March 13, 2011, 09:43 AM
Of course, I suppose the Supreme Court could say its affecting the interstate commerce in used machine guns. We'd just have to see.

Unless it was a machine gun of totally new (or even sufficiently different) design. If there's not another one like it, how am I supposed to buy one from out of state?

Zoogster
March 14, 2011, 12:04 AM
Unless it was a machine gun of totally new (or even sufficiently different) design. If there's not another one like it, how am I supposed to buy one from out of state?


You just need to read the Raich case with a legal mind.

In Raich they declared someone growing something on private land, using nothing that is part of any commerce whatsoever, for personal use, never sold or intended to be sold in the state or outside of the state (0 commerce), was still effecting the black market in marijuana.
The logic is that by growing their own they would no longer need to buy it from the illegal black market, that would result in reduced demand on that black market, and as a result they were having an effect on commerce.


So it does not even need to be a legal market being affected according to Raich. Making your own illegal machinegun gun means you would not be participating in the illegal black market for new machineguns using the Raich logic. Thus you would be having an impact on the illegal machinegun black market.
Legal market, illegal market, it doesn't matter according to Raich.
In fact according to Raich not being part of commerce (which was previously needed to trigger the commerce clause) has an impact on commerce, and thus by having nothing to do with commerce it is effecting commerce.
Mental gymnastics.


Also Wickard was nowhere near as damning as Raich, Wickard may be cited, even by the court, by that involved a guy in a contract with the government, a guy that agreed to grow only a specific amount in order to be paid many times the market value through subsidy.
He entered into that contract of his own free will, the government didn't just say what someone could and could not do on their own free land, Wickard thought it was a good deal and signed up and proceeded to violate that contract.
Modern interpretations interpreting that case to grant more power are a perversion of justice and taking it out of context.

Raich on the other hand does specifically grant the government all encompassing power over anything they say. How it applies to guns was well shown in the Stewart case, which was decided by the SCOTUS unofficially.

Under Raich logic even rain falling from the sky and collected on private land and used for personal use only would be subject to the commerce clause. It would reduce how much water the person needed to buy, thus having an impact on demand for water.
There is nothing outside of federal jurisdiction based on the Raich logic, unless the SCOTUS specifically says otherwise, because under Raich logic everything can be covered.

ArfinGreebly
March 14, 2011, 01:03 AM
The Raich reasoning can been envisioned as an exercise in Chaos Theory (http://noisyroom.net/blog/2010/12/15/chaos-theory-of-government/).

In other words, commerce, embodied as “the economy,” is one giant exercise in the Butterfly Effect so loved by the Chaos Theory boffins. Everything you do or don't do affects everything else that anybody else does, and naturally, therefore, it all needs regulating.

All your Commerce are belong to us.

And, yes, I look forward to the day when that's finally remedied.

henschman
March 15, 2011, 12:40 PM
The idea of state nullification, while popular in the early 19th Cent., was pretty much settled 150 yrs. ago. In legal circles, the notion has no traction and is not taken seriously.

You mean it was settled by the Civil War? That wasn't exactly over Nullification... the issue there was secession. That does bring up a good point though... if a state went through with nullification, the only remedy the national government would have would be to send in the troops, like they did in Hoxie, AR in the 1950s to force school integration. It would definitely take guts on the part of a state government to go through with nullification, and even more so for interposition... you are basically calling the national government's bluff and daring them to try to stop you. But it would take some political will on the part of the national government to actually do something about it, as well.

I wouldn't say it gets no traction or isn't taken seriously legal circles, either... when I was in law school, we discussed the topic thoroughly, and it was taken seriously. These days, I am hearing more and more discussion of it. Since the theory doesn't rely on supreme court precedent or anything like that, it's not so easy to call it moot or settled... all it takes is enough people in a state with the guts to give it a try. I am personally encouraged by the increase in interest in nullification, and would like to see some states give it a go. The more states that do it, the harder it would be for the feds to do anything about it.

pikid89
March 15, 2011, 12:58 PM
Freedom Arms?

Freedom, Wyoming

mboylan
March 15, 2011, 05:20 PM
Nullification is not a new idea. It's been tried before. The standard response has been military force or threat of military force. The first really serious attempt in the Carolinas ended with Andrew Jackson threatening to hang the state legislature for treason.

henschman
March 15, 2011, 10:31 PM
I think it's time to dust off the doctrine again and give it another go. I think it would be better regarded if it wasn't for the fact that the last time it was invoked, it was for a really bad cause (keeping gov't schools racially segregated -- thanks a lot, Arkansas).

But I think it could actually work, especially if a large group of states get together. At the very least, it would mean that not everybody is resigned to the post civil war, post new deal status quo that the national government has absolute supremacy and absolute power to regulate anything it sees fit. All it takes is enough people willing to stand behind it.

belercous
March 15, 2011, 11:45 PM
What I meant about the nullification question being settled over 150 yrs. ago was the Civil War. It was fought over secession, but only because the southern states knew that nullification was not a viable option. They knew it wouldn't work so they seceded from the union.

When I was in law school nullification was only mentioned in passing, as a matter of history. It was an idea that never had much support so it wasn't taken seriously, niether in the early 19th Cen. nor today. The only precedent to be found for it goes back to the Articles of Confederation which was widely recognized as not working. A major factor of its demise was because of state's nullification rights. If nullification were to be recognized as a valid concept, the Constitution would have to be thrown out as both are not compatible. (Maybe Justice Thomas would go for it, but he's an extremist.) Talk to anyone involved in constitutional law, nullification is a joke and has no chance of winning any argument before SCOTUS. Secession has a better chance of being recognized today. (I doubt we would fight another Civil War.)

Lou McGopher
March 17, 2011, 02:09 AM
The idea of state nullification, while popular in the early 19th Cent., was pretty much settled 150 yrs. ago. In legal circles, the notion has no traction and is not taken seriously.Not so. RealID is effectively dead because of nullification. It's been used for medical marijuana. Obamacare is going to be nullified in several states, if it isn't ruled unconstitutional first. And as much as the fedgov loves its misinterpretation of the commerce clause, I still think nullification is viable for firearms laws.
nullification is a joke and has no chance of winning any argument before SCOTUS.
That's the point... it doesn't require SCOTUS to accept it. It requires the state legislators willing to stand up for their citizens. It's an option that is perfect in keeping with the principles on which our government was founded.

andrewstorm
March 17, 2011, 02:37 AM
Was one of a kind ,the kind that wins,god bless america.

belercous
March 17, 2011, 11:20 PM
" RealID is effectively dead because of nullification. It's been used for medical marijuana. Obamacare is going to be nullified in several states..."

RealID has not been implemented because the federal gov. has not pushed it. There are a lot of logistical problems in its implementation and the Fed. Gov. has wisely not chosen to enforce it, nullification has nothing to do with it. Marijuana (medical or not) is still illegal under federal law and has been enforced in at least California under GWB. BHO's administration has chosen not to enforce it where it is legal for medical reasons. The prohibition on marijuana is on its way out due to it being a nonsensical law, not because of nullification. And nullification will not be the reason ObamaCare is found unconstitutional, if it even is.

State nullification has never been upheld as a valid legal theory in any federal court, it is a non-starter. Such a defense, if it were the sole legal theory put forth, would be dismissed on summary judgement if a court wouldn't do so sua sponte. There is not even a good-faith argument to be made for it. An attorney positing such a defense would be engaging in malpractice unless his client specifically demanded that theory.

It doesn't matter how vigorously any state legislature is in defending it, the Montana Firearms Freedom Act has no valid legal theory to support it, nor is it even a close case. Follow it and see. I doubt it'll ever even make it in front of SCOTUS to be heard since that would require a federal appeals court to uphold it. (While a single appeallate judge might uphold it, the case would be resubmitted for the entire appeallate court to hear, {an en banc hearing.} And federal appeallate judges know something about Constitutional law.)

I wish Montana luck, but the statute flies in the face of legal reality.

Lou McGopher
March 18, 2011, 02:16 AM
Twenty-three states have officially refused to enforce the Real ID act, several more have been considering doing the same thing. That's nullification. That's why fedgov has not pushed it.

State nullification has never been upheld as a valid legal theory in any federal court

The states can ignore the federal court, too.

Zoogster
March 20, 2011, 12:25 AM
When I was in law school nullification was only mentioned in passing, as a matter of history.

Probably because it would readily result in disbarment of attorneys that found it too interesting.
Jury nullification essentially flies in the face of the orderly established application of settled law, and few people that make law their career want people just ignoring all the principles, case law, and other aspects their education and career is based around.
The result is few judges will even tolerate the mention of it in a court room at all, and a prosecutor most certainly would take every step possible to get a new trial if it is openly mentioned in the court room.




Nullification has little chance for a large number of reasons. First it requires people to even know about it. Most people do not.

It is often career ended for an attorney to advise a jury of nullification. So it won't be the defense attorney specifically advising jurors about it, how it is historically and constitutionally acceptable, or why it can be used in direct conflict with the jury instructions given by the judge.
No judge is going to tolerate it being used to undermine their instructions in a court room and make decisions contrary to the law.
An attorney will quickly find themselves disbarred that informs juries about nullification.

Finally judges often declare a mistrial if it becomes obvious jury nullification is playing an admitted role in the outcome of a case.
If you get a mistrial because it became obvious jury nullification would play a role, the whole concept fails to work because more decisions based on jury nullification will be undone, while more of the opposing decisions will be allowed to stand having been decided in accordance with the law and legal instructions.


So jury nullification essentially requires people to already know something they cannot talk about in court, nor can prosecution nor defense inform them of, and which a judge won't tolerate.
If declared by a juror the principles of the juror become moot because they will be removed or a mistrial declared and a new jury without someone with such principles will be brought in to make the desired decision.
If a new trial is held and the person is convicted anyways, the beliefs of that jury member didn't really matter in the end, and their principles just resulted in someone without those principles making the decision anyways.
So it requires the jury member to often remain silent on their reason not to find someone guilty, and never mention the word "nullification".


All of this makes a realistic campaign of reliable nullification that actually results in regularly completed cases that make a difference difficult to achieve.

belercous
March 20, 2011, 10:48 PM
Zoogster; The topic was state nullification of federal law, not jury nullification. Two completely different things.

And yes, few judges will allow an attorney to inform a jury about this right a jury has. And jury nullification was not mentioned much in law school either.

henschman
March 20, 2011, 11:50 PM
Apparently it bears reiterating that nullification does not rely on being upheld in any court. The whole point of nullification is that if the national government makes an unconstitutional law, and even if said law is upheld in the courts, even by the supreme court, states as a last resort can simply refuse to comply with it.

Nullification rejects the idea that the Supreme Court is the final arbiter in matters of Constitutional interpretation. Proponents of nullification point out that the Constitution does not delegate this role to the Supreme Court -- it is a role the Supreme Court has arrogated itself to. They will say that Nullification is completely compatible with the Constitution, and will point out that among many other founders, the father of the Constitution, James Madison, believed in Nullification at the time he helped to write the document.

belercous, what parts of the Constitution do you believe to be incompatible with nullification?

You are right that nullification isn't taken seriously by very many people, but what I'm saying is that all it takes for nullification to work is for enough people to START taking it seriously, and putting it into practice... which seems to be the direction things are headed.

DMF
March 21, 2011, 02:18 AM
. . . what parts of the Constitution do you believe to be incompatible with nullification?

How about Article III, specifically Section 2.

Frank Ettin
March 21, 2011, 03:18 AM
...Nullification rejects the idea that the Supreme Court is the final arbiter in matters of Constitutional interpretation. Proponents of nullification point out that the Constitution does not delegate this role to the Supreme Court ...

belercous, what parts of the Constitution do you believe to be incompatible with nullification?Constitution, Article III, section 1The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...

Constitution, Article III, Section 2, emphasis added The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Constitution, Article VI, clause 2, emphasis added This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Of course, in some cases there may be a question as to whether a particular federal law was made in pursuance of the Constitution. That becomes a case arising under the Constitution in connection with which the Constitution delegates to the federal courts the jurisdiction to exercise judicial power.

Cosmoline
March 21, 2011, 04:46 AM
Think for a second about how the NFA functions. It's a FEDERAL law that requires NO repeat NO involvement from the state. The state has ZERO power to "nullify" it because of the Supremacy Clause. So this legislation does nothing whatsoever to keep the federal government from arresting you and throwing you in federal prison for breaking federal law.

Furthermore, unlike school segregation or potentially the new health care law, this is not a case of federal courts ordering state and local government to do something. The state can sit back and gripe all it wants, it does not matter one bit. Nor do state legislatures have any recognized power to issue binding interpretations of the US Constitution. The fact that Montana or Alaska disagree about the reach of the commerce clause will get you a cup of coffee if you happen to have a few bucks on you. So these "freedom" laws do NOTHING. Do not rely on them, because it will be you going to prison not the guys who passed the law.

henschman
March 21, 2011, 10:48 AM
Article III merely states that that all judicial power of the United States is vested in a Supreme Court and any inferior courts that Congress shall see fit to establish, and that the Supreme Court has jurisdiction of all cases arising in law and equity under the Constitution, etc.

It does not state that the courts are the only remedy that a state has against an unconstitutional law passed by the national government. In fact, at least one other method of resisting tyranny and usurpation from the national government is expressly recognized in the Constitution... the recognition of state militias, and the protection of the right to keep and bear arms in the 2nd Amendment. Many of the framers saw the militia as a last resort against tyranny from the national government. Nullification is a less drastic method of resisting tyranny.

The Supremacy Clause in Article VI states that the Constitution and the laws made pursuant to it are the supreme law of the land. However, nullification is used against laws that a state believes to be in violation of the Constitution. The pro-nullification argument is that the Supremacy Clause cuts both ways... if a law is in violation of the Constitution, it is in violation of the supreme law of the land and deserves no respect from the states.

The main issue is that the Constitution does not give to any branch or part of government the power to authoritatively interpret the Constitution and make its interpretation binding on the States. You can say that such a rule exists because that is how we have operated for most of our country's history, but there is no Constitutional basis for it. As I stated earlier, many of the founders believed in nullification, including the main author of the Virginia Plan, which became our Constitution.

Frank Ettin
March 21, 2011, 12:18 PM
...The pro-nullification argument is that the Supremacy Clause cuts both ways... if a law is in violation of the Constitution, it is in violation of the supreme law of the land and deserves no respect from the states.

The main issue is that the Constitution does not give to any branch or part of government the power to authoritatively interpret the Constitution and make its interpretation binding on the States....Not quite.

Under Article III, the Supreme Court has jurisdiction to determine "...all cases arising under ... this Constitution..."(emphasis added). So it is the province of the Supreme Court to decide any challenge to the constitutionality of statute of the United States (or a State).

If the Supreme Court finds a federal law to be constitutional, under Article IV it is, "...the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus any ruling by a state court purporting to void, or avoid, that federal law is ultra vires.

henschman
March 21, 2011, 05:54 PM
Article VI doesn't say anything about Supreme Court opinions being the supreme law of the land.

Cosmoline
March 21, 2011, 06:08 PM
This is not a situation where the federal government is imposing its will on the states. The states have nothing to do with it. This is a federal law imposed directly on the people. Under no interpretation of the Constitution would a state legislature have any ability to veto that law.

Frank Ettin
March 21, 2011, 09:08 PM
Article VI doesn't say anything about Supreme Court opinions being the supreme law of the land. If you like that argument, have at it.

Prosser
March 21, 2011, 10:35 PM
Odd, but, I thought the entire point of Marbury vs. Madision was that the Supreme Court took the authority to rule on issues of Constitutionality of
Federal laws, and ran with it, without conflict from Congress?

Federal agencies have a way of self-perpetuation, creating their own laws.

So do state agencies. Currently, our version of the BATF is ordering out of state gun dealers to not sell black rifles to anyone but class 3 license holders.

belercous
March 21, 2011, 11:02 PM
Justice Marshall's opinion in Marbury establishing the S.C as the sole arbiter of the Constitution is important for just that reason, you are correct Prosser. That is why the case is studied on day one of law school.

Nothing in the Constitution or federal law grants SCOTUS this power, they just claimed it and it has been accepted for 210 years. It is not something likely to be overturned.

The long & short of it is: State nullification does not exist & SCOTUS decides what the Const. means. These are basic tenets of American jurisprudence which are settled law. Legal scholars don't even debate these topics, at least not seriously.

Prosser
March 21, 2011, 11:51 PM
Part of the problem has been that the Supreme Court has ruled, or failed to rule in favor of states rights.
The issue is really states rights:
"10th Amendment Resolutions

In 2009-2010 thirty eight states have introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; Nine states have passed the resolutions. These non-binding resolutions, often called “state sovereignty resolutions” do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution.[6]"

Due to most of the cases about states rights being related to racial prejudice, and, the court using Federal law to impose de-segregation, states rights have been erroded to such a point they have become a Constitutional joke. That, along with the absurd power granted to the Federal government by The Court under the Commerce Clause rulings, and, you have exactly what we have now.

henschman
March 22, 2011, 09:34 PM
Nothing in the Constitution or federal law grants SCOTUS this power, they just claimed it [...]
I think you pretty well summed it up.

The fact that no Court is likely to uphold nullification does not in any way make it less viable as a course of action, as nullification does not rely on any court upholding it. The spirit of nullification is along the lines of what Andrew Jackson once said: "Justice Marshall has ruled -- now let him enforce it."

Cosmoline, you are right that it doesn't really do much for a state to pass a nullification law like the Firearms Freedom Act (or the Virginia and Kentucky Resolutions for that matter). It is partly a way of making a statement. However, the related theory of Interposition holds that a state may interpose itself to protect its citizens against the national government when it attempts to enforce an unconstitutional law. The state could order its sheriffs to arrest any federal agents attempting to enforce the law in the state, for instance. Of course this might take some ballsy sheriffs, since they may be opening themselves up to federal charges for doing so, but that is the idea anyway.

All this is a bit academic right now, as I don't believe the spirit of resistance is strong enough in any state at the moment for enough people to get behind interposition. But maybe someday things will change.

I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer. The state could set up an agency to purchase the chosen weapons and "issue" them to those who are interested. The agency could be paid for by a sur-charge on the purchase price of the weapons.

Prosser
March 23, 2011, 12:49 PM
I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer. The state could set up an agency to purchase the chosen weapons and "issue" them to those who are interested. The agency could be paid for by a sur-charge on the purchase price of the weapons.

I really like this idea. Plus, it puts the Second Amendment in play, that the
people are militia. A state might take it further and order all citizens to own and maintain a fully automatic weapon, ala the Swiss.

Where the Federal Government is really going to get itself in it is when they issue laws that require the states to pay for their law/action, when it contradicts the will of that states people. i.e. Federal education guidelines, with no funds to accomplish the dictated goals, etc.

sellmarkguy
March 23, 2011, 01:23 PM
Goooo.. Montana!

Cosmoline
March 23, 2011, 02:03 PM
I understand it's just symbolic, but what if some poor schlub actually relies on such a law to build a full auto? The feds will still arrest and imprison him. It won't be the state going to prison.

I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer.

It's an interesting idea. You wouldn't even have to add them to payroll. They could be analogous to a volunteer fire department. The feds, as far as I can see, would have nothing to say about it. Nor would it need to be tied to some archaic state militia statutes.

But in the end no firearm law on the books is going to give rise to some sagebrush rebellion with sheriffs arresting AFT guys. These laws have been around for a long time and we're pretty much stuck with them.

I agree with Prosser that the real problem is and always has been financial. Much of what the feds do now relies on bribery of the states. They tie federal funds for a myriad of programs to state compliance with federal edicts. But the feds are running out of real assets. If they have any at all at this point. The breaking point will come when the bribe money for highway funds and other things can no longer make up for the unfunded mandates. It's all about the money, always has been.

belercous
March 24, 2011, 12:12 AM
Quote:
I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer.

I kinda like that idea.

sellmarkguy
March 24, 2011, 10:17 AM
The feds will still arrest and imprison him.
The State authorities should then arrest and imprison the feds that try to arrest
anyone abiding by Montana law.

henschman
March 24, 2011, 01:39 PM
On the subject of making citizens into LEO's for the purpose of buying prohibited weapons, I suppose a pro-liberty sheriff's department could do the same thing, by deputizing anyone who wants to buy such guns. The citizen could pay the purchase price, and the department could procure the guns and "issue" them. I know sheriffs' deputies here in Oklahoma frequently purchase their own duty weapons.

I might have to check on this, but I don't think a sheriff's department would necessarily be limited to deputizing people in their own county, or even their own state.

If just one Sheriff in one county somewhere in this country started doing this, I don't see why he couldn't deputize and issue weapons to anybody anywhere in the country.

Hmm, I kinda like that idea! I think I might even know of some Sheriffs who would be up for something like that.

Lou McGopher
April 14, 2011, 01:06 AM
Things appear to be getting more interesting:

http://data.opi.mt.gov/bills/2011/billhtml/HB0381.htm

A BILL FOR AN ACT ENTITLED: "AN ACT CREATING THE OFFENSES OF WRONGFUL ENFORCEMENT OF CERTAIN FEDERAL FIREARMS LAWS, REGULATIONS, OR ORDERS; AND PROVIDING A PENALTY."

Section 1. Wrongful enforcement of federal firearms laws -- penalties. (1) A peace officer, state official, or official of a political subdivision MAY NOT ENFORCE a law, regulation, or order of the United States that conflicts with the provisions of Title 30, chapter 20, part 1

(2) An official, agent, or employee of the United States who purposely or knowingly enforces a law, regulation, or order of the United States relating to a personal firearm, firearm accessory, or ammunition manufactured in this state that conflicts with the provisions of Title 30, chapter 20, part 1, is guilty of a misdemeanor and upon conviction shall be punished by a term of imprisonment in a county jail for not more than 1 year, fined an amount not to exceed $2,000, or both.Title 30 Chapter 20 is the Montana Firearms Freedom Act:
http://data.opi.mt.gov/bills/mca_toc/30_20_1.htm

Lou McGopher
April 14, 2011, 01:16 AM
Also:
House Bill No. 448
http://data.opi.mt.gov/bills/2011/billhtml/HB0448.htm
A BILL FOR AN ACT ENTITLED: "AN ACT ENACTING THE INTERSTATE FIREARM FREEDOM COMPACT AS AN INTERSTATE COMPACT AND AUTHORIZING THE GOVERNOR TO EXECUTE AND ENTER INTO THE COMPACT WITH OTHER STATES."
And:
House Bill No. 382
http://data.opi.mt.gov/bills/2011/billhtml/HB0382.htm
A BILL FOR AN ACT ENTITLED: "AN ACT PROHIBITING INFRINGEMENT OF THE STATE OF MONTANA'S CONSTITUTIONAL RIGHT TO NULLIFICATION OF ANY FEDERAL STATUTE, MANDATE, OR EXECUTIVE ORDER CONSIDERED UNCONSTITUTIONAL BY THE STATE; ENACTING THE MONTANA NULLIFICATION REAFFIRMATION ACT; AND PROVIDING A RETROACTIVE APPLICABILITY DATE."Dunno why I didn't hear about these a month ago, but I would be very pleased to see these make it into law. Moving to Montana would definitely be in my future then.

mboylan
April 19, 2011, 10:31 PM
Interfering with Federal agents is a Federal felony. The laws are more feel good and would get struck down in court. The Civil War is over. The response to arresting a Federal agent for performing his duties would be swift and merciless.

Nullification has not been viable since the Madison administration and really not before that either.

armoredman
April 19, 2011, 10:50 PM
Funny that so many states are passing laws to nullify federal laws, then, must be a LOT of reaallly stupid people out there, eh? Or maybe they remember Real ID, too...

belercous
April 19, 2011, 11:09 PM
Just another bit of political posturing. These bills are no more likely to be upheld than the original act.

Apparently the Montana legislature doesn't have many people who understand constitutional law.

Frank Ettin
April 19, 2011, 11:22 PM
If nothing else, Montana jeopardizes its receipt of federal funds. During 2007-2009 federal funding received by Montana averaged $9.48 billion (almost twice as much as Montana residents paid in federal income taxes).

State nullification isn't going anywhere.

PoserHoser
April 19, 2011, 11:29 PM
does this mean that someone in montana could make a SBR or AOW legally?
http://http://www.rimfirecentral.com/forums/showthread.php?t=384921

armoredman
April 20, 2011, 02:49 AM
Montana, Arizona, Wyoming, I forget how many states passed FFA acts, 5 or 6, maybe.
Edit, the AZ one is specific to say no NFA style stuff is allowed yet.

Frank Ettin
April 20, 2011, 03:10 AM
Montana, Arizona, Wyoming, I forget how many states passed FFA acts, 5 or 6, maybe....So what? Let us all know when one is applied in a meaningful way and successfully blocks a federal prosecution in federal court.

henschman
April 20, 2011, 12:15 PM
You are missing the whole point of nullification if you think that the state legislature is worried about whether these laws will be upheld in federal court.

As far as I can tell, none of these laws are ordering state police to arrest federal agents... they are just providing penalties to state police who help to enforce the federal laws.

Frank Ettin
April 20, 2011, 01:07 PM
You are missing the whole point of nullification if you think that the state legislature is worried about whether these laws will be upheld in federal court....And if not expressly struck down in federal court, they will just wind up in that junk yard of old, meaningless laws that are the grist of humorous columns in Sunday newspapers after a slow new week.

Cosmoline
April 20, 2011, 07:16 PM
A state can "nullify" all it wants, but such measures mean NOTHING in this situation. It's the federal government and the federal court system prosecuting you, not the state.

Funny that so many states are passing laws to nullify federal laws, then, must be a LOT of reaallly stupid people out there, eh?

No, it means the legislators are hoping the gun owners are stupid enough to think these laws actually mean something. But it won't be the politicians going to federal prison!

does this mean that someone in montana could make a SBR or AOW legally?

Only if you fully abide by existing federal law. The state never had anything to do with the NFA anyway. Please do not build an SBR in one of these states and expect the state law to be any protection.

gatorjames85
April 20, 2011, 07:34 PM
Is anyone here willing to commit the multiple federal felonies necessary to effectuate the intent of these laws? As for RealId, that is a totally different situation. The states would have to actively participate to effectuate RealId. An a federal prosecutor and a federal judge are all that is necessary to effectuate the NFA.

henschman
April 20, 2011, 07:41 PM
I would venture a guess that since there are not all that many ATF and FBI agents per capita compared to state police, many NFA convictions occur because of state police forwarding a case to the feds when they discover a violation. This law would prohibit that.

gatorjames85
April 20, 2011, 08:22 PM
This law would prohibit that.

Not really. Any LEO charged/sued under one of these laws has an affirmative defense that the law is void on its face for violating the Supremacy Clause.

armoredman
April 23, 2011, 11:36 PM
No, I don't think so, I think it would set up a Tenth Amendment challenge that the federal law is itself in violation of the Constitution, in that the power in question is NOT a Federal power, but one reserved to the states or the people via Amendment Number 10. No, I don't have the time or money to challenge any of these laws, and I can only hope someone A) does and B) wins...but then again, Heller wasn't supposed to win and McDonald wasn't supposed to be able to happen. We'll see, and yes, to all you legal scholars out there, I'm not a lawyer, don't play one on TV, and have no formal legal training, so maybe I'm whistling through the graveyard. So what, maybe we'll get lucky. If not, we'll try a different angle.

GRIZ22
April 24, 2011, 12:29 AM
I don't think a sheriff's department would necessarily be limited to deputizing people in their own county, or even their own state.


I don't think much of a sheriff who would deputize someone just so they can get a NFA weapon.

belercous
April 24, 2011, 12:43 AM
For those who haven't yet recieved the memo, the 10A pretty much is limited to unfunded federal mandates. An attorney defending a client on 10A grounds (unless demanded by his/her client) would be committing legal malpractice.

These "laws" carry no more legal weight than my declaration of being the first King and sovereign ruler of Illinois. Great for comedic purposes, but they have zero chance of being upheld in court.

alsaqr
April 24, 2011, 10:29 AM
These "laws" carry no more legal weight than my declaration of being the first King and sovereign ruler of Illinois. Great for comedic purposes, but they have zero chance of being upheld in court.

+1.
It's all feel good stuff.

armoredman
April 24, 2011, 10:13 PM
Only because we let it become so. So be it, we'll let the courts hash it out, where the real experts are.

gatorjames85
April 25, 2011, 09:52 AM
we'll let the courts hash it out, where the real experts are.

Some of us work in the court system, where it is our job to advise people on the impact of laws and precedent. I am certain that any competent attorney or judge would tell you that these laws will do absolutely nothing so long as the federal government has chosen to extensively regulate firearms.

ConstitutionCowboy
April 25, 2011, 11:19 AM
Apparently the Montana legislature doesn't have many people who understand constitutional law.

Poppycock. These people are STANDING upon constitutional ground which just so happens to be constitutional law. Is what you are saying that unconstitutional laws usurping power have the same weight as constitutional law? Obviously, unconstitutional laws only have standing if they are ALLOWED to stand. The people in Montana know what's right, know what they are doing, and I wish them God speed and a joining in the cause of and a whole lot of support from the rest of the several states.

Woody

azmjs
April 25, 2011, 06:50 PM
The State authorities should then arrest and imprison the feds that try to arrest
anyone abiding by Montana law.

That would tend to violate the Supremacy Clause, among other pillars of the American way.

azmjs
April 25, 2011, 06:57 PM
If nothing else, Montana jeopardizes its receipt of federal funds. During 2007-2009 federal funding received by Montana averaged $9.48 billion (almost twice as much as Montana residents paid in federal income taxes).

State nullification isn't going anywhere.

Indeed. We settled the nullification 'question' for good with the civil war.

It certainly takes a bit of gall for a federal welfare recipient state like Montana to ignore the old adage that he who pays the piper calls the tune.

I wonder if there is a correlation between these states with constitutionally ignorant legislatures (and therefore, one might deduce, electorates!) and reliance on federal welfare.

You don't see donor states like California and New York passing stupid, obviously-on-their-face-unconstitutional laws like this.

azmjs
April 25, 2011, 07:06 PM
Funny that so many states are passing laws to nullify federal laws, then, must be a LOT of reaallly stupid people out there, eh?

Not funny, predictable.

There's an excellent way to model the aptitudes of a given population called the "bell curve."

One of the fundamental truths that people tend to forget is that 50% of the population is below-average. 10% is significantly below average.

It turns out that many of these states with constitutionally ignorant legislatures are also low-achieving states which receive federal spending welfare from places like California and New York.

Guillermo
April 25, 2011, 07:12 PM
azmjs, you are new here and are not being very HighRoad.

Suggest that you chill a bit or expect a moderator to step in.



The bottom line is that the Feds do not have the right to regulate firearms. Montana took a step to chip away at the unConstitutional and overbearing brownshirts.

Fruitless effort, I agree.

As to your assertion that Cali and NY don't pass legislation like this, you are correct. They pass legislation abridging rights, not trying to restore them.

azmjs
April 25, 2011, 07:22 PM
"brown shirts"

?

Is that what constitutes being "high road."

High irony, at the very least.

The bottom line is, in actual fact, that the federal government has every right to regulate firearms, through for example its explicitly enumerated power to regulate interstate commerce.

hugh damright
April 25, 2011, 07:57 PM
the federal government has every right to regulate firearms, through for example its explicitly enumerated power to regulate interstate commerce.
I can see how there is some connection ... for instance, if a State had a company that made guns e.g. pocket pistols, and every State around them banned the transportation of pocket pistols, then that company would be landlocked and unable to engage in interstate commerce, so I think it follows that the federal government is empowered to require that the states allow transportation of pocket pistols ... but the idea that the interstate commerce power embraces a general gun control power seems untenable to me, and for Montana to say that guns made in Montana and kept in Montana are an intrastate affair doesn't seem like nullification to me, it seems like clarification.

azmjs
April 25, 2011, 08:18 PM
I can see how there is some connection ... for instance, if a State had a company that made guns e.g. pocket pistols, and every State around them banned the transportation of pocket pistols, then that company would be landlocked and unable to engage in interstate commerce, so I think it follows that the federal government is empowered to require that the states allow transportation of pocket pistols ... but the idea that the interstate commerce power embraces a general gun control power seems untenable to me, and for Montana to say that guns made in Montana and kept in Montana are an intrastate affair doesn't seem like nullification to me, it seems like clarification.


There is no question that the government's regulatory power has its limits, for example, it cannot ban the ownership of firearms, or prevent their use for legitimate purposes such as sporting or self-defense, due to the protections offered by the second amendment.

In order for Montana or any other state to even begin to argue that a machine gun built and kept there was not subject to the interstate commerce clause - and it is important to note that the state could only argue this opinion, never dictate it - it would need to produce and process all of its own raw materials, power, etc etc as well as handle all of its own banking and finance.

Beyond this, there is the fact that American citizens are free to pursue commerce across state lines, and that a state's ability to regulate interstate commerce is at best subject to the will of the federal government.

It may well be unconstitutional for a state to presume to declare that certain goods could not be sold over state lines. Absent the power to make and enforce such a decree, it's unclear what basis Montana would have in the first place for claiming that goods made there were isolated from interstate commerce.

There may very well be a catch-22 at work where our freedom of interstate commerce makes all commerce into significantly potentially interstate commerce.

Guillermo
April 25, 2011, 08:36 PM
perhaps a little read of the Federalist II and you would realize that the Feds do not have an unlimited power to regulate something just because it crosses a boarder.

perhaps if you were to read the law in question, the Montana Firearms Freedom Act, there is no crossing of boarders.

It is no surprise that you do not understand these things or the difference between calling an overbearing government agent a brownshirt and suggesting that anyone that disagrees with you is an idiot.

I suspect that you are not long for this board

gc70
April 25, 2011, 08:41 PM
These "laws" carry no more legal weight than my declaration of being the first King and sovereign ruler of Illinois. Great for comedic purposes, but they have zero chance of being upheld in court.

I suspect there is no serious expectation that the Firearms Freedoms Act laws will be upheld in federal court. Indeed, the Firearms Freedoms Act laws are about as symbolic a formal challenge as the states could raise to federal power, since they have no real effect on federal activities. However, the laws are a polite and official way of telling the federal government that it has gone far enough and to begin backing off.

If we look at our country's history, we see that the American Revolution did not spring from a spontaneous act of violence on April 19, 1775. Instead, pressure had been building for a dozen years with the colonial governments protesting encroachments by the King and Parliament. Since there was no peaceful process to resolve the differences, armed revolution was the result.

I believe the Firearms Freedoms Act laws are an early manifestation of the willingness of the states to begin pushing back against the federal government. They may be meek and symbolic challenges at this point, but they do show growing frustration with the over-reach of the federal government. The REAL ID Act is more interesting as a potential future flashpoint. The REAL ID Act was adopted in 2005, with a 2008 implementation date. The federal government has already flinched by granting extension requests, or providing unsolicited extensions, to all 50 states. Half of the states have taken action to decline to participate altogether.

Whether it is the adoption of Firearms Freedom Act laws or the states' refusal to comply with the REAL ID Act, the states are rediscovering their ability to exert collective power against the federal government. Unlike the British colonies, the states will not need to resort to armed revolution if the federal government is unresponsive - 34 like-minded states can simply call for a constitutional convention and change the rules to suit their tastes.

Stay tuned, because the next decade should be very interesting.

azmjs
April 25, 2011, 08:53 PM
perhaps a little read of the Federalist II and you would realize that the Feds do not have an unlimited power to regulate something just because it crosses a boarder.

The Federalist II won't teach you anything about any developments in constitutional law since it was written.

I never called people who disagreed with me idiots. Perhaps you should go back and re-read what I wrote more carefully.

You might be surprised to learn whether or not you can come up with compelling answers to the questions I raised.

Ignoring things you don't already agree with is a road to mediocrity, and is probably one of the reasons for the low quality legislation coming out of Montana.

I suppose while we're at it, you might want to look up precisely what it it a "brown shirt" did in the real world. A lot of people take offense to trivialization of the Holocaust.

I shudder to think about the mentality that considers making a mockery of the crimes of Nazi Germany an exercise in "taking the high road."

hugh damright
April 25, 2011, 08:59 PM
34 like-minded states can simply call for a constitutional convention and change the rules to suit their tastes.

While that is the system that we are provided with, I question if the federal government would recognize such an amendment, especially if the 34 States contain a minority of the people ... of course, we were also provided with a system where the 34 States would be organized into well regulated militia and the federal government would have no standing army, such that the federal government might be forced to comply ...

Guillermo
April 25, 2011, 09:03 PM
I shudder to think about the mentality that considers making a mockery of the crimes of Nazi Germany an exercise in "taking the

I shutter to think of the person that supports a government that gives a Medal of Honor to a man who shoots a civilian woman holding a baby.

gc70
April 25, 2011, 09:11 PM
While that is the system that we are provided with, I question if the federal government would recognize such an amendment

"Breaking News: Washington refuses to recognize Constitutional Convention legally called by States"

That would certainly be a news cycle to follow closely. :evil:

hugh damright
April 25, 2011, 09:40 PM
"Breaking News: Washington refuses to recognize Constitutional Convention legally called by States"

Probably more like "Breaking News: States attempt to amend the US Constitution with complete disregard for the US Congress and the will of the people."

azmjs
April 26, 2011, 06:03 AM
I shutter to think of the person that supports a government that gives a Medal of Honor to a man who shoots a civilian woman holding a baby.

If this is meant to be in reference to the American government, and some obscure axe you have to grind with an MoH recipient, not only am I not ashamed of supporting our country, I am deeply proud of it.

azmjs
April 26, 2011, 06:11 AM
While that is the system that we are provided with, I question if the federal government would recognize such an amendment, especially if the 34 States contain a minority of the people ... of course, we were also provided with a system where the 34 States would be organized into well regulated militia and the federal government would have no standing army, such that the federal government might be forced to comply ...


Which procedure is it you believe the federal government can use to "ignore" amendments to the constitution?

Sam1911
April 26, 2011, 08:06 AM
[Mod Talk: Knock off the personal bickering. If this debate can't be held politely, we won't hold it at all.]

Jamie B
April 26, 2011, 02:54 PM
If this is meant to be in reference to the American government, and some obscure axe you have to grind with an MoH recipient, not only am I not ashamed of supporting our country, I am deeply proud of it.
It is a direct reference to Lon Horiuchi.

Any good, intelligent, God fearing American should be ashamed of him.

azmjs
April 26, 2011, 04:01 PM
It is a direct reference to Lon Horiuchi.

Any good, intelligent, God fearing American should be ashamed of him.

Lon Horiuchi never received the Medal of Honor...

I have a much harder time being ashamed of Lon Horiuchi than I do being ashamed of the scum who brainwashed their own kids to be cop-killers. Justice may not have been served in the most mundane sense with the accidental shooting of that woman, but it's hard to argue she didn't get what she richly deserved. Maybe a Lord-works-in-mysterious-ways sort of thing.

So is the hope that if Montana is permitted to play its machine-gun shell game, that in future shootouts between criminals/lunatics and the police, the bad guys will have machine guns and be able to kill more policemen before being apprehended or shot? Is that why "Medal of Honor" recipient Lon Horiuchi was mentioned? Why else mention him and what happened at Ruby Ridge?

Sam1911
April 26, 2011, 04:57 PM
This is absurd. Lon Horiuchi and Randy Weaver both had their days in court (or as close as they're likely to get) -- we aren't trying them again, here.

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