Montana Firearms and the Interstate Commerce Clause:

Montana’s staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State 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.”

Further, “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.”

For the reasons that Glenn Reynolds and I detailed in the Connecticut Law Review, I think that the Montana legislature is in line with the original understanding of the Interstate Commerce Clause, and with how the clause ought to be read today. But, obviously, that reading is not exactly a sure winner in today’s courts.