New Montana Law to be Tested

[1Buckshot]

By JENNIFER MCKEE of the Missoulian State Bureau | Posted: Tuesday, August 25, 2009 5:15 am | (4) Comments

Missoula-based gun rights group has partnered with a national organization to test federal authority over a new class of firearms: guns manufactured and used solely in the state of Montana.

The Montana Shooting Sports Association, headquartered in Missoula, and the Second Amendment Foundation, of Bellevue, Wash., announced Monday they intend to file suit on Oct. 1 to prevent federal gun control laws from being enforced in Montana for guns made and used within the state's boundaries.

"If a gun is made in Montana and stays in Montana, it isn't engaging in interstate commerce," said Alan Gottlieb, of the Second Amendment Foundation. "The federal government really should bug out."

At issue is the Montana Firearms Freedom Act, which passed the 2009 Legislature and was signed into law by Gov. Brian Schweitzer. That law states that guns, ammunition and certain gun parts manufactured and used in Montana are not subject to federal gun laws.

The law goes into effect Oct. 1. Several other states are considering identical legislation, although so far only Tennessee has passed a similar measure.

Currently, individuals and businesses that sell or manufacture most guns must have a federal license.

Missoula resident Gary Marbut, president of the Montana Shooting Sports Association, said that licensure is about control.

"Whenever there is licensure, there is control. That's the purpose of licensure," he said. "We don't think the source of those items that are essential to our Second Amendment freedoms should be controlled by the federal government."


Scot Thomasson, a spokesman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, declined to comment for this story.

However, the agency sent letters to all federal gun license holders in the state last month. That letter stated that the Montana Firearms Freedom Act did not nullify federal gun regulations.

"All provisions of the Gun Control Act and the National Firearms Act and their corresponding regulations continue to apply," according to the letter, which was signed by Carson Carroll, assistant director of the ATF in Washington, D.C. "These, as well as other federal requirements and prohibitions, continue to apply whether or not the firearms or ammunition has crossed state lines."

That the guns and ammo not be used outside Montana is important, Gottlieb said. So far, the federal government has justified federal control over guns by citing the "interstate commerce clause," which states that the federal government can regulate commerce between the states.

But if a gun will not be leaving Montana, there is no "interstate commerce" and the federal government has no standing to enforce its laws, Gottlieb said.

Marbut said he'll planning to file suit in Montana federal court the day the law goes into effect. He said he's received letters from Montanans interested in making their own guns, but who aren't sure the new law will protect them from federal prison time.

Those people, Marbut said, are the "test case." He's anticipating the suit will seek to prevent the ATF from enforcing federal laws. Marbut said he didn't want any Montanans to have to go to federal prison in order to test the legal arguments behind the Firearms Freedom Act.

In the meantime, he said, please don't make a gun.

"We are continuing to highly recommend to Montana people that nobody make one of these Montana devices until we can clarify these legal issues in court," he said. "We don't want some Montana citizens to face potential federal prison time."

The law states that the gun must be machined in Montana; people couldn't simply assemble a gun here from parts they bought out of state.

Marbut said gun laws ought to be made and enforced by the states.

"We would prefer that if there's going to be regulation (of guns) that it done at the state level in a way that is consistent with our people and our culture in Montana," he said. "We don't need the kinds of regulation that New Jersey may need or that California may need."
http://www.missoulian.com/news/local/

[blackwolfe]

I am in favor of the Montanna Firearms Act law and I hope the lawsuit upholding it will prevail forcing the feds to butt out.  I think that will be a tough uphill road to travel.  I'm not a lawyer, but I would expect the feds to say that the materials used, ie steel plastic etc were part of interstate commerce.

I remember a case from years ago involving pronography.  I don't remember the details, but the feds were able to nail the guy on it because ot the interstate commerce clause.  The guy used Kodak photo paper that came from New York and he was located in another state. 

On another note, I think that a guy did beat a rap on a federal charge of possesion of a gun in a gun free school zone.  I think the basis of the law was interstate commerce.  I think that was challenged in court, that basis giving authority for the creation of the law (commerce clause) was to big of a stretch as ruled by the court.  My memory on this is a little sketcy, so I may not have it quite right.

In summary, the way to beat the feds on a lot of laws is the need to attack the commerce clause.  In my opinion the feds have stretched the use of the commerce clause beyond it's original intent. to regulate and control our lives in many aspects, not just firearms.

[m25operator]

Bw, you are thinking right, and I am damn glad of MT, pick your battles carefully, but this seems like one to support with all our hearts, it is the stepping stone. People of MT, call on us.

[Kid Shelleen]

Good luck to the good people of Montana. I hope that the State wins. It will have major implicaions for the rest of us.