PAGE NINE -- No. 64
by Alan
Korwin, Author
6-
"The Montana
Firearms Freedom Act" HB246
"The Montana Firearms Freedom
Act" HB246
"The Montana Firearms Freedom Act" HB246
Montana's new gun law
kicks feds in the gut
Montana's new gun law kicks feds in the gut
In a nutshell: "Any
gun made and kept in Montana is free of federal gun regulation."
People have been writing
asking me if this is real -- it is. It is important enough to dedicate this
entire Page Nine. Well, I've included some other juicy items too.
I have followed the
development of this law since the outset, I am friendly with its instigator
Gary Marbut, president of the Montana Shooting Sports Assoc. http://www.mtssa.org
(and we sell Gary's Montana gun-law book, which will be re-released in several
weeks, updated and with the new law included). I was honored to coax and coach
Gary into writing that book, now in its third edition http://www.gunlaws.com/books2.htm
Gary dreamed up the
concept of the Montana gun-freedom bill, drafted the language himself
("that's why it's in plain English, I'm not a lawyer," he said) and
guided it through his legislature to a 29 to 21 win in the Senate, and a
stunning 85 to 14 romp in the House. It is a fabulous law. Imagine what it
could do for economics in the state, wait, don't imagine, check this out --
Texas just introduced it too, where it could benefit more than 300 state-based
manufacturers. It will, "invite new industry into Texas," according
to its sponsor there, Leo Berman.
That's not all. Tennessee
has introduced it as well. Alaska moved it through the Senate 32 to 7 but
adjourned before the House could act. States actively considering it include
Arizona, Idaho, Louisiana, Missouri, Oklahoma, Utah, Washington and Wyoming.
While some people got excited about virtually worthless feckless non-binding
resolutions demanding 10th Amendment protection from federal abuse, this new
law puts teeth into the demand.
This is a perfect point of
pushback against illegal federal encroachment and violation of our
constitutional rights. You should pick this up where you are, like we are here
in Arizona, get someone in your state to make the small changes needed to match
the language to your state, and run with it.
If the federales have their
way, reaction would likely be directed against the first manufacturer to
operate under the law. Feds will obtain a firearm produced in Montana, probably
from a small shop without big time resources to fight the feds, and the person
will be arrested, property confiscated, and charges filed with all sorts of
laws that do not apply except in the feds imagination.
But then of course they
run the courts that will convict the person, and the courts, if precedent is
any gauge, will deny constitutional defenses and work vigorously to do the
bidding of their federal masters. It will be a 9th and 10th Amendment case, and
a Commerce Clause case, and a Supremacy Clause case, not a Second Amendment
case.
However, the feds are
unlikely to get their way so easily. We freedom types are pretty clever too,
and little of this will happen without a plan. First, an effort is underway to
find and temper any wildcat basement tool shop operators who ignorantly blast
ahead making guns thinking they are immune to the federal hand. That will be
good for the wildcats and for the proper movement of this important law.
A test case will be
developed, Gary says, most likely with a carefully designed bolt-action .22
caliber youth rifle. The wood stock will come from a Montana grown tree.
Standard steel-supplier stock will turn into the basic barrel and parts, and
the statute makes clear that interstate regulation (if any) of raw stock does
not apply to the stock once it is in state and used strictly for intrastate
purposes (a point the courts will examine).
The people involved will
have squeaky-clean records, including a Marine, tool makers with no FFL license
to complicate things, and a youngster whose parents seek to get him the
firearm. Clearance to make it will be sought from the proper authorities ahead
of time. If it is granted (don't hold your breath) the deal is done. If it is
not granted (a pretty sure bet), the parties will have grounds to sue in civil
(not criminal) court. It's pretty complicated, but it's well thought out.
In a conference call
between Marbut and six top-level attorneys, it became obvious that the legal
fight is an uphill battle, because the feds run the courts. To date, the
federal judicial system has treated the 10th Amendment as a dead letter, and
this from an attorney who has fought such cases from the lowest ranks to the
Supreme Court itself. If the federal government wants something, it doesn't let
a little thing like the Bill of Rights stand in its way. I know, it's
infuriating, but that's the way it is.
Now there's a political
dimension to this as well. All the states are being abused and denied their
rights under the 10th Amendment. The public is outraged at the lack of control
on the federal behemoth. It's time for something to give.
The Associated Press and
USA Today have picked up on it, and FOX-TV's Glenn Beck is negotiating to get
Marbut on the show.
As more and more states get on the case, the
pressure builds, and the ability of the system to resist a straightforward and
righteous demand weakens. The Montana Firearms Freedom Act can be the straw
that breaks the federal back. Once 10th Amendment hegemony is re-established,
the floodgates of freedom are open.
The feds and their lapdog
lackies in the lamestream media are likely to refer to this action as an
attempt at "illicit manufacture and trafficking in firearms," the
words in the CIFTA treaty http://www.gunlaws.com/GunLawUpdate5-CIFTA.htm.
The feds would love to raid a compound (an innocent owner's small tool shop),
confiscate an arsenal (more than one firearm and some parts), and sick their
legal dogs on the poor soul. They're not going to get such an easy shot. As
many as five coordinated cases will be structured.
My time has been consumed
lately with a family medical issue, the bill below does a good job of
describing what Montana has accomplished, and because it's in plain English,
something I've always said can and should be done, it's readable. Take some
time. Read it, you'll love it.
Alan's Executive Summary
The bill opens with the
state's "Declarations of Authority." This basically asserts Montana's
rights under the U.S. Constitution, Montana's contract upon entering the union,
and principles of federalism. Very juicy and enjoyable.
An easy-to-read set of
definitions is followed by the core legal principle: "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."
One legal landmine exists
in the fact that firearms are regulated not only under the Commerce Clause,
they are controlled by tax laws, and the outcome of that quagmire is uncertain.
The legal protections are
piled higher with this and similar wordings: "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 prevent side issues
from interfering, full auto and large bore devices are excluded from this bill.
Guns made under this law must be stamped "Made in Montana" and man oh
man won't that be a thing of pride.
The bill is easy reading,
you should do it, then make sure your legislature gets on it.
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.
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