Posted by
drpete on Friday, May 08, 2009 10:35:53 AM
The Oklahoma legislature has been in the news for more than a year now with its sovereignty resolution.
See story here. It seeks to undo overreach by the federal government in violation of of the 10th amendment.
Now comes the legislature of Montana which just passed a bill in both its house and senate, and got the governor's signature as well. The bill -- in brief -- says that guns both manufactured and sold in Montana are exempt from federal laws, based on the "commerce clause". Knowing that you'll want
the facts, and not merely my take, the text is below. I'll comment below the text.
HOUSE BILL
NO. 246
INTRODUCED BY J. BONIEK, BENNETT, BUTCHER, CURTISS, RANDALL,
WARBURTON
AN ACT EXEMPTING FROM FEDERAL REGULATION UNDER THE COMMERCE CLAUSE
OF THE CONSTITUTION OF THE UNITED STATES A FIREARM, A FIREARM ACCESSORY, OR
AMMUNITION MANUFACTURED AND RETAINED IN MONTANA; AND PROVIDING AN APPLICABILITY
DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1.
Short title. [Sections 1 through 6] may be cited as the “Montana Firearms
Freedom Act”.
Section 2.
Legislative declarations of authority. The legislature declares that the
authority for [sections 1 through 6] is the following:
(1) The 10th amendment
to the United States
constitution guarantees to the states and their people all powers not granted to
the federal government elsewhere in the constitution and reserves to the state
and people of Montana certain powers as they
were understood at the time that Montana was admitted to statehood in 1889. The
guaranty of those powers is a matter of contract between the state and people of
Montana and the United States as of the time that the compact
with the United States was
agreed upon and adopted by Montana and the
United
States in 1889.
(2) The ninth amendment to
the United States
constitution guarantees to the people rights not granted in the constitution and
reserves to the people of Montana certain
rights, as they were understood at the time that Montana was admitted to statehood in 1889. The
guaranty of those rights is a matter of contract between the state and people of
Montana and the United States as of the time that the compact
with the United States was
agreed upon and adopted by Montana and the
United
States in 1889.
(3) The regulation of
intrastate commerce is vested in the states under the 9th and 10th amendments to
the United
States constitution, particularly if not
expressly preempted by federal law. Congress has not expressly preempted state
regulation of intrastate commerce pertaining to the manufacture on an intrastate
basis of firearms, firearms accessories, and ammunition.
(4) The second
amendment to the United States constitution reserves to the people the right to
keep and bear arms as that right was understood at the time that Montana was
admitted to statehood in 1889, and the guaranty of the right is a matter of
contract between the state and people of Montana and the United States as of the
time that the compact with the United States was agreed upon and adopted by
Montana and the United States in 1889.(5) Article II, section 12, of the Montana
constitution clearly secures to Montana citizens, and prohibits government
interference with, the right of individual Montana citizens to keep and bear
arms. This constitutional protection is unchanged from the 1889 Montana constitution, which was approved by congress and
the people of Montana, and the right exists, as
it was understood at the time that the compact with the United States was agreed upon and adopted by
Montana and the United States in
1889.
Section 3.
Definitions. As used in [sections 1 through 6], the following definitions
apply:
(1) “Borders of Montana” means the
boundaries of Montana described in Article I,
section 1, of the 1889 Montana constitution.
(2) “Firearms
accessories” means items that are used in conjunction with or mounted upon a
firearm but are not essential to the basic function of a firearm, including but
not limited to telescopic or laser sights, magazines, flash or sound
suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition
carriers, and lights for target illumination.
(3) “Generic and insignificant
parts” includes but is not limited to springs, screws, nuts, and pins.
(4)
“Manufactured” means that a firearm, a firearm accessory, or ammunition has been
created from basic materials for functional usefulness, including but not
limited to forging, casting, machining, or other processes for working
materials.
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.
Section 5.
Exceptions. [Section 4] does not apply to:
(1) A firearm that cannot be
carried and used by one person;
(2) A firearm that has a bore diameter
greater than 1 1/2 inches and that uses smokeless powder, not black powder, as a
propellant;
(3) ammunition with a projectile that explodes using an explosion
of chemical energy after the projectile leaves the firearm; or
(4) a firearm
that discharges two or more projectiles with one activation of the trigger or
other firing device.
Section 6.
Marketing of firearms. A firearm manufactured or sold in Montana under [sections 1 through 6] must have the words
“Made in Montana” clearly stamped on a central metallic
part, such as the receiver or frame.
Section 7.
Codification instruction. [Sections 1 through 6] are intended to be codified as
an integral part of Title 30, and the provisions of Title 30 apply to [sections
1 through 6].
Section 8.
Applicability. [This act] applies to firearms, firearms accessories, and
ammunition that are manufactured, as defined in [section 3], and retained in
Montana after
October 1, 2009
With this bill, Montana has thrown down the gauntlet, and declared judicial war with the federal government. It, I predict, will not take long before this show debuts at a U.S. Supreme Court with revolutionary implications.
The
Constitution's "commerce clause" enumerates the federal government authority to "regulate commerce among the states." First, it does
not enumerate the power to
prohibit, merely to regulate. Second, it does
not enumerate the power to regulate
intrastate commerce, just
interstate. Third, "commerce" (original
meaning) was defined as the trade or exchange of goods, including the means of transporting them (including payment, since that's an exchange of goods as well). Clearly, the federal government has,
de facto, stretched and expanded "commerce" beyond recognition.
Any proscription or restriction of behavior between or among consenting parties is, by definition, a violation and infringement of their unalienable right to liberty. Any proposed proscription must be screened through the "necessary and proper" clause. A law or regulation must first be
really necessary, because the consequences of not having such an
a priori prohibition or limitation would be dire. It is why
some highway speed limits are constitutional. It is why most federal taxes are
not. Even if necessary, the remedy must be
proper. A
federal speed limit on a state or county road would
not be proper, because the jurisdiction isn't federal. Also, to be
proper, the remedy must be the least infringing proscription possible. Banning possession of a firearm by convicted violent felons might be
proper. Banning guns
per se would not.
Manufacturing guns in Montana is
not a federal case. Buying guns in Montana is
not a federal case. Possessing guns in Montana is
not a federal case. Shooting guns in Montana is
not a federal case. If the federal government intervenes in Montana, that state vows to secede. The legislators and governor of Montana have rendered Tea Parties child's play. They've supersized the resistance and put it on steroids. Ladies and gentlemen of Montana, what you see is me standing and what you hear is my applause.