Montana House Shoots Down Federal Gun Control

[ManBearPig]

House shoots down federal gun controls

By KAHRIN DEINES
Associated Press Writer
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HELENA, Mont. (AP) -- Montana lawmakers fired another shot in battles for states' rights as they supported letting some Montana gun owners and dealers skip reporting their transactions to the federal government.

Under House Bill 246, firearms made in Montana and used in Montana would be exempt from federal regulation. The same would be true for firearm accessories and ammunition made and sold in the state.

"What we need here is for Montana to be able to handle Montana's business and affairs," Republican Rep. Joel Boniek told fellow lawmakers Saturday. The wilderness guide from Livingston defeated Republican incumbent Bruce Malcolm in last spring's election.

Boniek's measure aims to circumvent federal authority over interstate commerce, which is the legal basis for most gun regulation in the United States. The bill potentially could release Montanans from both federal gun registration requirements and dealership licensing rules. Since the state has no background-check laws on its own books, the legislation also could free gun purchasers from that requirement.

"Firearms are inextricably linked to the history and culture of Montana, and I'd like to support that," Boniek said. "But I want to point out that the issue here is not about firearms. It's about state rights."

The House voted 64-36 for the bill on Saturday. If it clears a final vote, the measure will go to the Senate.

House Republicans were joined by 14 Democrats in passing the measure.

"I would hope that our U.S. Supreme Court would begin to retreat from what I think is an abusive interpretation of our interstate commerce clause," said Rep. Deborah Kottel, a Democrat from Great Falls who supports the measure.

That clause in the U.S. Constitution grants Congress authority to regulate commerce with foreign nations, and among the states. The Supreme Court has handled cases seeking to limit the clause's application in recent years. In 2005, the court upheld federal authority to regulate marijuana under the clause, even when its use is limited to noncommercial purposes - such as medical reasons - and it is grown and used within a state's borders.

The Montana bill follows fears here and elsewhere that the election of Barack Obama as president will trigger more gun regulation. In the months before Obama's inauguration, Montanans rushed to stock up on guns, pushing gun sales beyond normal benchmarks despite the recession.

Opponents of the measure worry lax regulations in the state could lead to a similar surge in both gun sales and gun manufacturing.

"Who are we bringing in and is this the kind of business we want to have in this state?" asked Rep. Sue Malek, D-Missoula. "I want our state to be recognized as a state that cares about people, and that cares about the environment."

The bill is one of a number the Legislature is considering that may extend gun rights in Montana.

Earlier in the week, the House passed another measure, HB228, that would let Montanans carry concealed weapons in city limits without having permits.

On Saturday the House Judiciary Committee narrowly passed a resolution that affirms Montanans' right to carry weapons in national parks and wildlife refuges.

http://hosted.ap.org/dynamic/stories...02-14-16-34-52
This Is Montana!!!

 

[TexasRifleman]

No, THIS is Montana



I am surprised that passed, this is very interesting legislation. Sends a very strong message. Hope someone is listening.

 

[modifiedbrowning]

Good news, hope it makes it past the Senate along with the no permit law.

 

[Geno]

I suspect there will be a lot of folks moving to Montana, and creating start-up firearms businesses.

They should affectionately call this the tell Washington to go...

Ta Helena Handbasket Legislation

Doc2005

 

[armoredman]

Is the makeup of the Montana Senate such that these bills could pass, and is the sitting Governor of Montana likely to sign them? If so, GREAT!

 

[MICHAEL T]

USA 1 USSA 49 we need more states come on people make your state federal free

 

[Atla]

They have done this before(07 or 08), and while it passed the House than also - it failed in the Senate.

 

[thebucket]

Ta Helena Handbasket Legislation

That's gotta be one of the best puns I've ever read. Sounds like some good legislation, if it passes I'll be interested to see what the Feds think about it since it would free Montana from the NFA.

 

[Rio Laxas]

Good for Montana. I hope it makes it through the Senate.

I'll be interested to see what the Feds think about it since it would free Montana from the NFA.

I'd hate to be the test case in that one. I don't know how much good having the state on your side would be in a federal court.

 

[Old Fuff]

Don't think it will work, because they will claim that the components used in said guns or ammunition came in from out of state. However it will be kicked around the courts for years, and in any case this is not the sort of thing the folks currently running the government in Washington want to hear. They don't believe there should be any state governments.

 

[TCB in TN]

Go Montana! We need a lot more folks like this!

 

[Lurp]

Wow, glad to hear it. I hope all you Montana residents will be contacting your state senators soon. I would really like to see this pass.

 

[Zoogster]

Don't think it will work, because they will claim that the components used in said guns or ammunition came in from out of state. However it will be kicked around the courts for years, and in any case this is not the sort of thing the folks currently running the government in Washington want to hear. They don't believe there should be any state governments.

Actualy it is already decided in previous Supreme Court decisions. The most recent that effects gun laws in this way being Gonzales vs. Raich.

Gonzales vs. Raich is about growing state legal marijuana with CA soil, and never intended in any way to enter the market at either the state or federal level, so never to be a part of commerce, especialy interstate commerce.
Most drug laws are based on the same concept as firearm laws, regulation of interstate commerce.

The court ruled that even a plant grown privately for private consumption using materials never part of interstate commerce was still subject to the federal law.
The actual text stretches existing legal logic, clearly grasping to reach the conclusion, and further justifying it under the "necessary and proper" clause.

The first effect it had on gun rights was against an Arizona man making the very same argument. That a machinegun he made for himself never to enter into commerce was not subject to federal authority because federal authority and law stems from regulating interstate commerce.
Since his homemade machinegun was never even part of commerce, nevermind interstate commerce it was out of federal jurisdiction.
The 9th Circuit Court of Appeals agreed, a homemade firearm only intended for personal use was not subject to the NFA which derives power from the ability to regulate interstate commerce.

Then Gonzales vs Raich happened and the Supreme Court of the United States declined to hear the machinegun case, kicking it back down to the 9th Court of Appeals in light of the implications of the Raich case.
The 9th Court then reversed its decision in light of Raich.
Yes, if marijuana grown only for personal use could be regulated with the presented logic under the limited powers of federal government, the exact same logic applied to firearms.

The "drug war" struck again. A heavy blow to firearm rights. Had the very valid legal logic prevailed the NFA would have only applied to retail firearms. Homemade select fire weapons as well as homemade modifications that allowed select fire operation would have been legal, as long as they never entered into commerce (you didn't sell them.)


The case in question was United States vs. Stewart. The 9th Circuit agreed initialy. Homemade things only intended for persona use should not be subject to the NFA, and that was stretching the bounds of Constiutional authority. However Raich would provide logic and precedent that did allow federal authority over firearms not part of interstate commerce.

So in light of Gonzales vs. Raich, and in light of its immediate effect on United States vs. Stewart and why the 9th circuit decision was reversed at the guidance of the SCOTUS it never needs to cross state lines or really be involved in interstate commerce at all to still be regulated under laws only Constitutionaly valid based on regulating interstate commerce.
Confused? The authority of the Federal government was just greatly expanded in a case most didn't notice because it was about drugs.
They built upon a previous decision that was less clear in its application that allowed the government to restrict how much grain a farmer could grow for his own use. Grain never a part of interstate commerce so therefore previously outside federal authority to regulate. FDR and his pocket Supreme Court (he threatened to just add more justices if they didn't rule in his favor on issues) was behind that.

So by saying it was okay for the government to limit the quantity of something grown for personal use and never part of interstate commerce a precedent was set. He wanted to grow weat for personal use such as feeding his own animals outside of the amount he grew that entered into commerce. He argued the federal government only had its power to regulate things in interstate commerce, and he was correct but the FDR court sided against him.
That was Wickard vs. Filburn.

That precedent allowed them to say a quantity of 0 was okay in Gonzales vs. Raich. The Raich case then expanded the logic validating the regulation of something that under all previous legal logic was technicaly outside the scope of the powers granted to the federal government under the Constitution.
That new logic of how it is constitutional under Raich essentialy allows the government to regulate anything within the US just by saying it in some way even remotely effects something they do have the power to regulate. They could say that about anything, even collecting rainwater from the sky.

The ability to regulate something in such a way that was never part of interstate commerce with the very far reaching logic put forth in Gonzales vs. Riach set a precedent that says everything in the United States can be regulated, regardless if it actualy enters into interstate commerce.
One of the greatest expansions of federal power ever.

All stemming from unconstitutional actions by dictator FDR (look up his "court packing" scheme used as leverage against the court.)

So, it does not need to cross state lines.

 

[mp510]

That's a nice attempt to exercise states rights that I hope proves successful- though the way the court can (and periodically does) distort the commerce clause, it is conceivable that there could be potential issues if this becomes law and is obeyed.

 

[748]

So I add Montania to the short but growing list of secessionest states...
NH, VT, AK, FL (keys) and TX.

 

[CManT1914]

Maybe if this passes and gets the ball rolling more states will jump on. Like, oh I dunno.... TEXAS! lol

Will be interesting to see how it pans out.

 

[sixshooterfan]

Even if Gonzalez v. Raich wasn't an issue, wouldn't every part of the device (from the steel to the wood to the tools used to make the firearm) need to also be made in the state? Does Montana have that infrastructure?

 

[SHvar]

It sounds to me like someone "wishing in one hand".
Simply said, the same with medical mary-jane in the "peeps repubublic of cali", the doctors and pharmicists that distributed were arrested under federal law the first day. A state cannot create or enforce a law with less bite than the federal law in existance. In the case of mary-jane, it was the first federally illegal drug. It doesnt matter whether you grow it, sell it, or possess it, its still completely illegal.
In the case of firearms, if there are federal laws that say the firearm must have taxes paid, a background check done, and records kept of the transaction, then the state is just blowing smoke, also the state cannot be arrested for the states citizens actions, so who suffers in the end, those who were "wishing in one hand".
Now if the state were to make a law with the same minimum requirements as the federal law, only more strict its legal.

 

[Wheeler44]

In the case of mary-jane, it was the first federally illegal drug. It doesnt matter whether you grow it, sell it, or possess it, its still completely illegal.

Actually it is a controlled substance....At one time there were "tax stamps"(sound familiar) although AFAIK none were ever issued....All done under the interstate commerce clause IIRC.

Wheeler44

 

[DMF]

I'll be interested to see what the Feds think about it since it would free Montana from the NFA.

http://caselaw.findlaw.com/data2/circs/9th/0210318pv2.pdf

 

[BADUNAME27]

CA makes the laws more stringent.

CO has cities that ignore the state's constitution (Denver)

Ol Uncle Sugar doesn't get involved with them and make it stop.

So why would they here?

This will be a first and very cool if it makes it. MT isn't that far away from me either. Maybe it's time to move. . .

Hmmmmmm.

 

[rabidgoldfish]

One of the issues with marijuana tax stamps was that you had to self incriminate to buy a stamp. Pretty effective way to end it.

 

[Zoogster]

In the case of mary-jane, it was the first federally illegal drug. It doesnt matter whether you grow it, sell it, or possess it, its still completely illegal.

Actualy the Harrison Narcotics Tax Act restricted opiates and cocaine in 1914.
Marijuana was unrestricted at the federal level until 1937 when the Tax Stamp started to be required. Three years after the same thing was done for NFA items.
The intent was the same, anyone found violating even a small portion of the process could be jailed for many years and fined enormous amounts of money. It was how they outlawed things they did not believe the government had the power to outlaw.

....At one time there were "tax stamps"(sound familiar) although AFAIK none were ever issued...

Many were in fact issued. The list of people who were issued them were however harassed. The feds would notify the state authorities if the state had restrictions to prosecute the individuals and they would also look for any minor clerical error involved in the legal requirements layed out in the Tax Act.
People following the legal procedure would find themselves with charges ranging from conspiracy to commit illegal acts (which usualy carry the same sentence as actualy doing them but carry a much lower burden of proof) to many other charges.

In Leary Vs. United states in 1969 the Marihuana Tax Act was declared unconstitutional because it required self incrimination to comply with the law. A violation of 5th Amendment rights.
It sure would be nice to see the NFA outlawed in a similar fashion.
There would be great similarities to someone in a state not allowing NFA firearms applying for an NFA Tax Stamp to comply with the federal law. They would have to incriminate themselves at the state level to comply with federal law.

 

[mgkdrgn]

Ya, South Carolina tried something like this, oh, 160 years or so ago.

Didn't work out all that well.

 

[QuietEarp]

If a bill passes they usually don't use the word "shoots down." I think that the author Kahrin Deines really wanted to say "shoots down" in regards to this issue.
I am very glad that this has passed in the House at least. It sends a great message to Washington about what many Americans feel is important.