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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.

BRM:
Good for Montana. Would that also preclude ACCA prosecutions for felons in Montana if they have/use a Montana-made gun?
4.15.2009 5:17pm
PatHMV (mail) (www):
I think their stance, much as I may personally agree with it, is pretty definitely at odds with the decision in Raich, isn't it?

I think the states wanting to do stuff like this should go the "militia" route. Pass a law declaring that the state militia consists of all non-felons 18 or older who are not under a commitment order or active restraining order. Then declare that all firearms purchases made by such individuals are made in their capacity as members of the well-regulated state militia, and thus that the federal government has no right to regulate the state militia in that regard.
4.15.2009 5:18pm
PatHMV (mail) (www):
BRM... It won't preclude squat, because the state is not the final decider of the limits of the interstate commerce clause; the U.S. Supreme Court is.
4.15.2009 5:19pm
rosetta's stones:
I don't know if they even make firearms in Montana, but the politicians there sure got some cajones, to be passing this law. Sure seems like an in-your-face to the feds. (Not that there's anything wrong with that.)
4.15.2009 5:25pm
Skyler (mail) (www):
Nice sentiment. Meaningless law. If only it were possible. . . .

If the federal government can regulate the growing of tomatoes in your own garden for your own dinner table as interstate commerce because it constitutes tomatoes you thereby didn't buy from the market, then they can do whatever the heck they want.

I'd love to see this win, but it won't.
4.15.2009 5:27pm
fennel:
Not a great strategy here by Montana. The Supreme Court doesn't like it when other branches of government get into the constitutional law business. See City of Boerne v. Flores, 521 U.S. 507 (1997).
4.15.2009 5:30pm
NaG (mail):
Would this law have any practical effect? Is it possible for a state to deny the federal government jurisdiction over a matter that has already been determined by federal courts to be within the federal government's jurisdiction? Didn't the medical marijuana laws passed by certain states already demonstrate that while a state can decide not to prosecute something, that doesn't mean it can prevent the federal government from prosecuting it?
4.15.2009 5:31pm
Skyler (mail) (www):
Oops, it was wheat, not tomatoes.
4.15.2009 5:33pm
Skyler (mail) (www):
And yes, Wickard was overturned by Lopez, but my point was that the feds will find a way to make this law be unconstitutional.
4.15.2009 5:34pm
Xenocles (www):
What exactly was the basis for the doctrine that only one of the parties (ie, the federal government) to the constitutional contract is entitled to interpret the terms of that contract? Perhaps the claim is that the USSC is an independent arbiter, but I think the Court's very name belies that. I figure resolutions like this one should have at least as much weight as presidential signing statements.
4.15.2009 5:37pm
Jon Roland (mail) (www):
A more positive step would be to declare all Montana citizens not only militiamen but law enforcement officers, thus evoking the exceptions in U.S. codes for such officials.

But if Montana is to resist federal oppression they need to take still another step and actuually call up its militia and direct them to kick the feds out of the state.
4.15.2009 5:37pm
Oren:

I don't know if they even make firearms in Montana, but the politicians there sure got some cajones, to be passing this law.

Why? What possible consequences will the lawmakers face besides seeing their law thrown out shortly after it lands in court?

Moreover, IMO, this does harm to the movement to get Raich overturned.
4.15.2009 5:38pm
cd:
I could see this law doing more harm than good if someone is confused into thinking that he or she no longer needs to comply with federal gun regulations, because of some proclamation by the Montana legislature on the reach of the commerce power, and then gets in trouble for it.
4.15.2009 5:43pm
Oren:

A more positive step would be to declare all Montana citizens not only militiamen but law enforcement officers, thus evoking the exceptions in U.S. codes for such officials.

Among other notable problems with this suggestion, the State would be liable for the actions of every citizen under USC1983.


But if Montana is to resist federal oppression they need to take still another step and actuually call up its militia and direct them to kick the feds out of the state.

Something about tax day (wait wait, the 16th amendment is unconstitutional!) really boils the blood eh?

Montana gets $1.58 in Federal spending for every dollar sent to DC. Oh, the humanity!
4.15.2009 5:45pm
cd:
Also, Lopez did not overrule Wickard; it distinguished it.
4.15.2009 5:46pm
Jon Roland (mail) (www):
One of the things this does is provide us an opportunity to educate the public on the original meaning of the Commerce and the Necessary and Proper clauses. We have a collection of articles on that gathered here.
4.15.2009 5:48pm
einhverfr (mail) (www):
So, what does this mean about improvised black powder weapons?

does this mean that if I import unshaped steel and make my own musket, import my own lead and make my own musket balls, make my own black powder etc, that there is no federal jurisdiction?

Or do the feds claim jurisdiction because the steel, lead, saltpetre, etc wasn't manufactured entirely with Montana products?
4.15.2009 5:50pm
cd:
Oren, the proposal to make every Montana citizen a law enforcement officer is of course silly. However, doing so would not make the state liable for the acts of all citizens under section 1983. Section 1983 liability attaches to the individual officer, not the government that employs him. Most government indemnify their law enforcement officers, but they are not required to do so, and presumably if Montana took the odd step of making all citizens all enforcement officers, they would not go as far as to offer them indemnity.
4.15.2009 5:50pm
PatHMV (mail) (www):
Xenocles... the Constitution is not a contract between the several states and the Federal government. Note the preamble: "We the People of the United States..." Contrast this with the opening of the Declaration of Independence: "The unanimous Declaration of the thirteen united States of America." Our forefathers adopted the Constitution only after the compact or confederation model, tried under the Articles of Confederation, failed.

The people of the United States declared the federal constitution, and laws and treaties properly adopted pursuant thereto, to be the supreme law of the land. If every state could interpret those laws its own way, then the federal law would hardly be supreme.
4.15.2009 5:50pm
geokstr:

Oren:
Montana gets $1.58 in Federal spending for every dollar sent to DC. Oh, the humanity!

I've seen this kind of stat about how much each state gets bandied about all the time. Since I doubt that Montana gets as much in social services (not including Social Security/Medicare) and military spending per capita as the national average, I'd be curious to see the methodology used to arrive at these numbers.
4.15.2009 5:52pm
Gabriel McCall (mail):
The sad thing is that we're even in the state of affairs where such a statement/law should be necessary. Tenth amendment, we hardly knew ye.

There are no checks on government power when the people have no will to enforce those checks.
4.15.2009 5:53pm
Jon Roland (mail) (www):
Oren:

A more positive step would be to declare all Montana citizens not only militiamen but law enforcement officers, thus evoking the exceptions in U.S. codes for such officials.

Among other notable problems with this suggestion, the State would be liable for the actions of every citizen under USC1983.

Only if the citizen is on duty -- performing official duties -- and the state fails to do its duty to prosecute abuses, which it should do anyway.
4.15.2009 5:53pm
My Middle Name Is Ralph:
Is there any legal or practical effect of this legislation (besides the political grandstanding)? I think there might some practical effect.

Obviously, the MT legislature does not get to decide the constitutionality of a federal law. But, perhaps, a MT state or federal prosecutor might go easier on someone in violation of the law. I doubt the Supreme Court or even the Court of Appeals would give any deference to this law (and might even resent the intrusion), but perhaps a MT state judge or even MT federal district court judge might try to avoid the constitutional issue by ruling in favor of the defendant on some other issue. And, if a defendant is convicted, I would think that he could argue that his good faith belief in the legality of what he was doing as affirmed by the MT legislature would strongly argue for a reduced or probated sentence.
4.15.2009 5:54pm
Commentor (mail):
Xenocles,

You asked:

What exactly was the basis for the doctrine that only one of the parties (ie, the federal government) to the constitutional contract is entitled to interpret the terms of that contract?

The answer is found in Article VI, Paragraph 2 of the United States Constitution, which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
4.15.2009 5:58pm
J. Aldridge:
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 wouldn't be a federal regulation of commerce if it did leave the state.
4.15.2009 6:00pm
Gabriel McCall (mail):
The answer is found in Article VI, Paragraph 2 of the United States Constitution

The text quoted indicates that the Constitution is the final authority. It doesn't say a darn thing about who gets to decide what the Constitution actually means. It would be an equally valid (or more so) reading of that text to argue that Montana has not only a right but a duty to interpret and enforce the Constitution according to its own best judgment regardless of what the SCOTUS says.
4.15.2009 6:02pm
Skyler (mail) (www):

If every state could interpret those laws its own way, then the federal law would hardly be supreme.


Oh, but we can dream . . .
4.15.2009 6:03pm
Oren:

Most government indemnify their law enforcement officers, but they are not required to do so, and presumably if Montana took the odd step of making all citizens all enforcement officers, they would not go as far as to offer them indemnity.

Departments can be held liable if they act with deliberate indifference to creating a danger. City of Canton v. Harris which held that
the inadequacy of police training may serve as the basis for  1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.



Authorizing untrained people of unknown background to wield deadly force under State Law is deliberate indifference to danger and undoubtedly opens the State to S1983 liability.
4.15.2009 6:04pm
cd:

Oren:


A more positive step would be to declare all Montana citizens not only militiamen but law enforcement officers, thus evoking the exceptions in U.S. codes for such officials.

Among other notable problems with this suggestion, the State would be liable for the actions of every citizen under USC1983.


Only if the citizen is on duty -- performing official duties -- and the state fails to do its duty to prosecute abuses, which it should do anyway.



No, not even then. A state cannot be directly liable for money damages under section 1983, even under Monnell. The only way a state would pay for the actions of its police officers is if it had a voluntary indemnification agreement with them.
4.15.2009 6:05pm
cd:
Canton v. Harris only applies to municipal departments, not the state police.
4.15.2009 6:06pm
George Mocsary (mail):
I was hoping that Arizona or California would do something like this with regard to their proposed and existing medicinal marijuana laws. Bravo to Montana and Governor Schweitzer!
4.15.2009 6:08pm
Oren:

Only if the citizen is on duty -- performing official duties -- and the state fails to do its duty to prosecute abuses, which it should do anyway.

If he's wearing his badge, it's under color of law.


The text quoted indicates that the Constitution is the final authority. It doesn't say a darn thing about who gets to decide what the Constitution actually means.

That would be in article III:

The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

That is to say, the Supreme Court has final appellate on the question of what the Constitution (and any other Federal law, treaty, etc...).
4.15.2009 6:09pm
Oren:

I was hoping that Arizona or California would do something like this with regard to their proposed and existing medicinal marijuana laws. Bravo to Montana and Governor Schweitzer!

Aside from the theatrics, they did. California has basically ceased marijuana enforcement and, while the DEA did occasionally come in and bust the openly-operating dispensaries, it was never enough to make a dent in the availability of the drug. Holder halted those anyway.
4.15.2009 6:10pm
Skyler (mail) (www):
Gabriel, it was Marshall in Marbury v. Madison that decided that question. The Supreme Court declared itself to be the keeper of the Constitution, states need not be involved.

The issue was settled for good in 1865. The states have no say anymore, there is no longer any self-determination. The Declaration of Independence was rendered moot.

This is just something to get votes. It will not result in anything else.
4.15.2009 6:13pm
Skyler (mail) (www):
Heck, if the state can ignore federal gun control laws, it can certainly ignore section 1983.
4.15.2009 6:15pm
Dilan Esper (mail) (www):
I think their stance, much as I may personally agree with it, is pretty definitely at odds with the decision in Raich, isn't it?

Yeah. I have a better proposal to get around Raich. Have the state grow the marijuana or manufacture the guns. Then you are dealing with New York v. United States and core issues of state sovereignty.

Of course, since the actual reason for the Raich decision is closer to "we can't allow those California potheads to interfere with federal drug regulation!" rather than any plausible interpretation of the Commerce Clause, the Court would find a way to preclude California from even having the state government grow pot. It might work for Montana though.
4.15.2009 6:17pm
Xenocles (www):
PatHMV-

What you say sounds good on the surface, but there are certain other parts I could cite to make my case:

1) Ratification is done by the several states, not by national referendum. The original ratification was accomplished mostly through state convention by "deputies of the people."
2) The tenth amendment reserves powers "to the states" as well as to the people.
3) Amendment can be accomplished by convention (the people?) or by call from the legislatures of each state.

The USSC is hardly an impartial judge in these matters. It consistently acts to add to its own power (ever since Marbury) and when restrictions on power are discovered, the trend is for those restrictions to bind the states, not the federal government. This should surprise nobody, since the Court is a federal organ. I'm not sure we should respect its opinion in such fields (except for the fact that their opinion is what matters practically).
4.15.2009 6:17pm
J. Aldridge:
Skyler said: "The issue was settled for good in 1865. The states have no say anymore, there is no longer any self-determination. The Declaration of Independence was rendered moot."

Sounds like a cop out to me. The question of state rights and Slavery was settled in 1865 with the adoption of the 13th amendment. State rights was far from dead since Bingham himself was a strong state rights man who often quoted John Calhoun.
4.15.2009 6:30pm
David M. Nieporent (www):
I don't know if they even make firearms in Montana, but the politicians there sure got some cajones, to be passing this law. Sure seems like an in-your-face to the feds. (Not that there's anything wrong with that.)
It takes about as much "cajones" as passing a resolution saying, "Montana refuses to recognize National Broccoli Week" right after Congress passes a "This is National Broccoli Week" resolution. A symbolic law that helps local politicians get elected without doing a damn thing to interfere with the federal government? Why would that be "in-your-face" to the feds?
4.15.2009 6:31pm
Prosecutorial Indiscretion:
And yes, Wickard was overturned by Lopez

Really?
4.15.2009 6:33pm
Yellowstone:
We do have a firearms industry here in Montana. It is mostly high end hunting rifles and expensive .45-.70 recreations. There are also ammunition manufacturers in the state. As to the militia concept, our legislature already used a version of this when the federal law concerning firearms near schools was passed. They declared that for purposes of this law, all citizens were considered members of the militia. The law just passed is acknowledged locally as being provocative toward the federal government; a common attitude among Montanans.
4.15.2009 6:45pm
Seamus (mail):

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 would be a total waste of time in today's courts.


Fixed.
4.15.2009 6:45pm
martinned (mail) (www):
@Xenocles: I don't think you could reasonably argue that Marshall was wrong when he wrote that ultimately it is the Supreme Court of the United States who decide what the constitution means. That seems like the only reading the Constitution allows.

The Interstate Commerce Clause on the other hand...
4.15.2009 6:46pm
Lior:
First, isn't current Federal Law (i.e. USSC rulings) pretty clear on the point that products made in Montana out of steel that previously travelled interstate are "connected" to interstate commerce and therefore subject to regulation by Congress? More significant, surely guns made in Montana are part of the national "market in guns" much more than the Raich marijuana was part of the national "drug market" ?

Second, Federal Courts reject out-of-hand the arguments by licensed Marijuana dispensers that they relied on State authorization. In fact, they refuse to let the defence reveal this fact to the jury on the theory since such reliance is irrelevant to the question of whether the acts constitute a violation of federal drug law.

Now assume the FBI arrests a Montana gun dealer in a case involving guns entirely manufactured in Montana (using only Montana-mined steel and coal, Montana-created blue-prints and Montana-manufactured machines operated by engineers who were entirely educated in Montana and only ate Montana-grown beef). What good would the reliance do to the dealer?
4.15.2009 6:46pm
Jon Roland (mail) (www):
Oren:

Authorizing untrained people of unknown background to wield deadly force under State Law is deliberate indifference to danger and undoubtedly opens the State to S1983 liability.

Nonsense. States already do that, under both their militia clauses and citizen arrest statutes. Always have. The only question is whether they have the default rank of private or a higher rank. Making them all militia sergeants doesn't change anything except that they are now law enforcement officers for federal purposes.
4.15.2009 6:51pm
cboldt (mail):
-- And yes, Wickard was overturned by Lopez, but my point was that the feds will find a way to make this law be unconstitutional. --
.
What will happen is the Feds will find a way to make the federal laws applicable. As to the Lopez decision, US Congress modified the law that was struck down, and modified it to add the element that the weapon must be asserted to have an interstate commerce connection. This addition cured the constitutional infirmity. I'm sure there was considerable discussion at the time as to whether a firearm wholly made within the boundaries of a given state would escape.
.
I agree with your conclusion. The feds have superior "firepower," and this Montana law will not provide cover against a federal prosecution. Perhaps somebody will volunteer to be a test case, ala Griswold v. CT. I wonder how the "taxing" provision of the NFA would play. As far as I know, EVERY activity that generates income, even activity that is not interstate, is subject to ALL applicable federal taxes.
4.15.2009 6:52pm
DangerMouse:
Why not just pass a Constitutional amendment eliminating the interstate commerce clause and the necessary and proper clause? If those who clauses have overwhelmed the limited powers that the Federal Government was supposed to have had, then get rid of them.
4.15.2009 7:10pm
My Middle Name Is Ralph:

In fact, they refuse to let the defence reveal this fact to the jury on the theory since such reliance is irrelevant to the question of whether the acts constitute a violation of federal drug law.


I would think that this fact would be relevant in assessing the penalty. I'm not familiar with criminal trial procedure--does judge or jury impose the sentence for violation of fed drug laws? if jury, is there a separate penalty phase?
4.15.2009 7:12pm
martinned (mail) (www):
@DangerMouse: Or maybe it would be less drastic to simply re-write the list. Eliminate the Commerce Clause, and write a number of new, narrow clauses to replace it.
4.15.2009 7:12pm
Brett Bellmore:

This addition cured the constitutional infirmity.


I know that the court struck the law down in Lopez, and that it was subsequently re-passed with such a 'finding', but did it ever go BACK to the Supreme court to settle whether that finding settled the matter, or simply didn't pass the laugh test?
4.15.2009 7:17pm
DangerMouse:
@DangerMouse: Or maybe it would be less drastic to simply re-write the list. Eliminate the Commerce Clause, and write a number of new, narrow clauses to replace it.

Almost anything would be better than the open-ended federal authority that the commerce clause apparently permits.
4.15.2009 7:23pm
cboldt (mail):
The Supreme Court has already rendered an opinion that touches on the issue of purely intrastate transactions that pertain to firearms.
.
Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that 922 (a) (6) and (d) (1), in contrast to 18 U.S.C. App. 1202 (a) (1), see United States v. Bass, supra, were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, "on the theory that such transactions affect interstate commerce." 472 F.2d, at 593. See also United States v. Menna, 451 F.2d 982, 984 (CA9 1971). cert. denied, 405 U.S. 963 (1972), and United States v. O'Neill, 467 F.2d 1372, 1373-1374 (CA2 1972).

Huddleston v. US, 415 U.S. 814 (1974)
.
The action of the Montana legislature is purely academic in effect, and is inflammatory - maybe even illegal as tending to incite the bitter, gun-clinging right-wing extremists.
4.15.2009 7:23pm
einhverfr (mail) (www):
So, if we allow that unshaped steel made into a gun and never exported from the state is still connected to interstate commerce if the steel was imported into the state....

Then it seems to me that if the iron was mined in the state and then forged into steel in the state but that some piece of equipment used in the mining of the iron was imported, the iron would be connected to interstate commerce, and hence the steel would, and hence the gun would, right?

Doesn't this effectively mean that the government could effectively regulate all products because something connected to its manufacture at some point crossed a state boundary?
4.15.2009 7:26pm
Oren:

Heck, if the state can ignore federal gun control laws, it can certainly ignore section 1983.

Except the former is commerce clause while the latter is based on the grant in the 14A.
4.15.2009 7:26pm
einhverfr (mail) (www):
Suppose one had a law which stated that, say, hammers were subject to federal regulation provided that the hammers, their raw materials, tools of manufacture, or the tools which manufactured any of those items were connected to interstate commerce. Would this be within the bounds of the Commerce clause or not?
4.15.2009 7:28pm
cboldt (mail):
-- I know that the court struck the law down in Lopez, and that it was subsequently re-passed with such a 'finding', but did it ever go BACK to the Supreme court to settle whether that finding settled the matter --
.
Good question. I don't know. There have been post-Lopez prosecutions and convictions on that statute, and I'm sure they have been upheld on appeal, but I don't know if any of the felons have petitioned SCOTUS for a writ of certiorari. I do know that SCOTUS has not reheard an argument on the constitutionality of that statute, and I doubt they would. SCOTUS is fully invested in defending the constitutionality of the NFA, and every federal gun control law since enacted.
4.15.2009 7:30pm
cboldt (mail):


-- Doesn't this effectively mean that the government could effectively regulate all products because something connected to its manufacture at some point crossed a state boundary? --
.
The Court will look not just at the raw material history that facilitates the production, it also considers the effect on the existence of an item post production. The logic will be that the existence of a gun in the territory of the US will affect interstate commerce, even if an individual gun never leaves a state.
.
So, if the Feds ever decide to regulate hammers (or lawn darts), they will look at the product and not excuse it on account of its raw material and finished good is wholly intrastate.
.
If a state could "create" product exemptions by dint of raw material and absence of interstate traffic, that power would deeply undermine broad swaths of federal regulation.
4.15.2009 7:37pm
BRM:
BRM... It won't preclude squat, because the state is not the final decider of the limits of the interstate commerce clause; the U.S. Supreme Court is.


My question is not whether the law will be given effect. My question is whether the statutory language encompasses federal gun crimes, regardless of whether the law will every be upheld in federal court. Does 18 U.S.C. § 924, for example, subject a gun to federal regulation? Or does the legislative presumption of no interstate commerce sufficiently negate any crimes that require a commerce jurisdictional element, even if that criminal statute is not one that regulates firearms.
4.15.2009 7:40pm
RPT (mail):
Disclaimer: I do not know 2d amendment law and defer to everyone else on its substance. I do like Gov. Schweitzer.

On the 10th Amendment issue, I am curious as to how someone like Gov. Perry, in his newly proclaimed state or seceded republic or whatever, of Texas, might follow up on this act by Montana. No snark please, just substance, since it is rare to have so much 10A news in one week.
4.15.2009 7:47pm
cboldt (mail):
Post-Lopez decisions squarely uphold the federal statute.
.
We also examined § 922(g)(1)'s application post-Lopez in United States v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996), where the appellant argued the government must show the possession of the firearm had substantial effect on interstate commerce. We rejected that argument, holding an individualized showing of substantial effect on commerce was unnecessary. Farnsworth, 92 F.3d at 1006. ...
.
The decisions in Morrison and Jones give no reason beyond what was already present in Lopez to find § 922(g)(1) beyond Congress' Commerce Power. This Court has twice considered § 922(g)(1)'s post- Lopez constitutionality in Bolton and Farnsworth and decided in favor of the government. This is in accord with every circuit to examine the question post-Lopez, and we shall not overturn precedent here. FN1
.
FN1 See United States v. Gateward, 84 F.3d 670 (3d Cir. 1996); United States v. Bradford, 78 F.3d 1216 (7th Cir. 1996); United States v. Bates, 77 F.3d 1101 (8th Cir. 1996); United States v. Turner, 77 F.3d 887 (6th Cir. 1996); United States v. McAllister, 77 F.3d 387 (11th Cir. 1996); United States v. Sorrentino, 72 F.3d 294 (2d Cir. 1995); United States v. Collins, 61 F.3d 1379 (9th Cir. 1995).

US v. Dorris (10th Cir.)
4.15.2009 7:50pm
CJColucci:
If Montana makes everyone part of the Big Sky Militia and some untrained militiaman does what we can confidently predict one of them will do, the State of Montana will not be liable in a Sec. 1983 action because you can't sue states or state agencies under Sec. 1983. An individual-capacity suit against whatever state official would be considered the head of the Big Sky Militia would be in order, but no sane person would take the job, and the risk, under those circumstances unless indemnified up the wazoo. And probably not even then.
4.15.2009 7:54pm
Brett Bellmore:

If a state could "create" product exemptions by dint of raw material and absence of interstate traffic, that power would deeply undermine broad swaths of federal regulation.


I should think so, since broad swaths of federal regulation do in fact violate any sensible reading of the commerce clause.

I wonder if we're building to the final showdown, where the states call that convention, and try to retake the powers the federal government has usurped? The federal government would not appear to have any constitutional way to resist such a move, but that hardly means they'd just let it happen.
4.15.2009 8:08pm
Harvey Mosley (mail):

Brett Bellmore:

If a state could "create" product exemptions by dint of raw material and absence of interstate traffic, that power would deeply undermine broad swaths of federal regulation.


I should think so, since broad swaths of federal regulation do in fact violate any sensible reading of the commerce clause.

I wonder if we're building to the final showdown, where the states call that convention, and try to retake the powers the federal government has usurped? The federal government would not appear to have any constitutional way to resist such a move, but that hardly means they'd just let it happen.


Wow. I had never even considered this scenario. I was aware of the provision for a constitutional convention, but I just assumed it would never happen and left it at that. The idea that a convention might be called and not recognized by the federal government is incredibly provocative. Wow.
4.15.2009 8:32pm
John Moore (www):
Oren:

Montana gets $1.58 in Federal spending for every dollar sent to DC. Oh, the humanity!


That money is no doubt going to the army of federal employees who manage the federal property in Montana, not for the benefit of Montanans.

For no good reason, the Federal Government owns huge amounts of western states. Here in Arizona, it is one of the limiting factors on our economy.
4.15.2009 8:33pm
Cornellian (mail):
What exactly was the basis for the doctrine that only one of the parties (ie, the federal government) to the constitutional contract is entitled to interpret the terms of that contract?

First, the constitution is not a contract between the federal and
state governments, it's the law with which they must both comply.
Thus, they cannot, for example, agree that state legislatures will
approve judicial nominees, rather than the U.S. Senate.

Second, both federal and state governments (and the branches of each)
are free to interpret the constitution. In fact they can hardly avoid
doing so if they're doing their jobs conscientiously. The question,
therefore, is not whether the Montana legislature can interpret the
federal constitution - of course it can - the question is who gets to
make the call in the event of a disagreement between the Montana
legislature, which enacted the state law, and the executive branch of
the federal government, enforcing a federal law inconsistent with the
state law. The answer to that question is the United States Supreme
Court, and that's been the answer since Marbury v. Madison. The
reason why the constitution leads to that answer is partly due to the
Supremacy clause which someone else pointed out earlier and which
makes federal law supreme over state law. The rest of the answer is
Article III, which gives the Supreme Court appellate jurisdiction over
questions arising under the laws of the United States (including the
U.S. constitution). Thus, when a lawsuit is filed by someone in
Montana arguing that the state law can't apply to them because it's
inconsistent with the federal law or the U.S. constitution, the
Supreme Court would eventually be called upon to rule on that
question in the exercise of the judicial power.
4.15.2009 8:42pm
cboldt (mail):
-- I was aware of the provision for a constitutional convention, but I just assumed it would never happen and left it at that. --
.
Nothing good would come of a ConCon. Not that it'll never happen, but if it does, it'll be co-opted by transnationalists, and "states" as we now know them would become [even moreso] historical artifacts.
.
Lots of ways for the current [fire/political/money]power of the fed to play in a ConCon. Whatever would emerge would be acceptable to the PTB, and would be enforced.
.
IOW, "the feds" would have a largely determinative voice in a ConCon, even if they technically lack a vote.
4.15.2009 9:23pm
Cornellian (mail):
I was aware of the provision for a constitutional convention, but I just assumed it would never happen and left it at that.

It's a safe assumption. There will be no constitutional convention,
not now, not in the foreseeable future. The reason is that there is
absolutely zero public support for reducing the scope of federal
jurisdiction.
4.15.2009 9:32pm
rosetta's stones:
The ConCon can't get much traction in the states right now, as the Feds will continue to borrow Chinese money to bribe them into compliance with their will. When that cash flow dries up, the states will have no reason to comply with the foolishness, and we'll see more actions like this Montana one. Playing lawyer here, we'll have ConCon de facto, if not de jure. Did I get that close, even, counselors?
4.15.2009 9:52pm
rosetta's stones:
Oh, and as for the SC in the above scenario, unless they suddenly come across some Chinese money of their own to divvy out to the states to pay for their fresh edicts, I can see a state governor responding to one of said edicts by repeating Jackson's immortal words of a couple centuries ago.
4.15.2009 9:56pm
Monty:
CJColucci is right. States are immune to 1983 liability due to sovereign immunity. That immunity does not apply to political subdivisions of the state, which is why local governments can be liable under 1983. If the militia was at the state level, only the individual members would be subject to liability. States may waive sovereign immunity, which is why some think 1983 applies to state government.
4.15.2009 9:58pm
gwinje:
Brett and Harvey,

I'm curious about the situation you envision. Somehow the overwhelming majority of the people of the various states will be in a position to drastically overhaul the structure of our republic via the procedures outlined in the constitution, but won't be able to elect representatives to the federal government who are sympathetic to the cause? I'm having trouble getting worked up about that.
4.15.2009 10:22pm
Melancton Smith:
Cornellian wrote:

The reason is that there is absolutely zero public support for reducing the scope of federal jurisdiction.


I guess "absolute zero" isn't so absolute anymore. I know plenty of people who support just such a thing.
4.15.2009 11:42pm
Cornellian (mail):
If those "plenty of people" really existed in significant numbers, Ron Paul would be a serious contender for the Republican nomination, instead of a perpetual fringe candidate.
4.15.2009 11:58pm
Tom Perkins (mail):
<blockquote>
The reason is that there is absolutely zero public support for reducing the scope of federal jurisdiction.
</blockquote>

Tell it to the folks holding tea parties.

Yours, TDP, ml, msl, &pfpp
4.16.2009 12:14am
Jon Roland (mail) (www):
DangerMouse:

Why not just pass a Constitutional amendment eliminating the interstate commerce clause and the necessary and proper clause?

What is needed is a clarifying amendment that returns us to the original understanding of the terms:

"Commerce" = Transfer of title and possession of a tangible commodity from a vendor outside a state to a purchaser inside that state.

It does not include primary production, manufacturing, retail sales within a state, possession, use, or disposition of anything. It also does not extend to the activities of those engaged in commerce, only to the commodities themselves. Those commodities do not include energy, information, financial instruments, or contracts.

"Regulate" = Only the power to restrict the attributes or modalities of commercial items, such as measure, packaging, scheduling, or routing. It is not the power to prohibit all modalities of anything.

The powers to tax, spend, regulate, prohibit, or promote are distinct and none my be inferred from any of the others, nor may the exercise of one be done to achieve the effect of exercising another.

"Necessary and proper" only kincludes what is essential and appropriate to make the effort authorized in the delegation of a power, not whatever might be condusive to accomplishing a purpose for which the power might be exercised.

Or we could just appoint judges who have and are willing to assert this original understanding.
4.16.2009 12:50am
NickM (mail) (www):
Cornellian - you're forgetting that the Ron Paul supporters and other groups of people seeking to reduce federal jurisdiction (IMO 5-10% of the population, depending on how you ask the questions) aren't supporting a constitutional convention, for an entirely different set of reasons centered around a fear of elimination of parts of the Bill of Rights.

Nick
4.16.2009 4:42am
Brett Bellmore:

If those "plenty of people" really existed in significant numbers, Ron Paul would be a serious contender for the Republican nomination, instead of a perpetual fringe candidate.


Paul was actually doing pretty well in his run for the nomination, until the party machinery mobilized against him. They pulled some stunts to keep his delegate count down that I'd never seen before, and even he won a state, the media scarcely covered it.

Gwinje, you seem to assume that legislators are selfless representation machines. They're not, they chiefly represent their own views in the legislature, which views systematically diverge from those of their constituents, and represent their constituents' views only to the extent political reality forces them to. And given the degree to which federal campaign laws and gerrymandering have rendered Congressmen immune to challenge, that's not much.

Take term limits, for example: Wildly popular, it is implemented in virtually every state which has the initiative process, and essentially no state which lacks it. By your reasoning, how could this possibly be???

It is in the interest of state legislators as a distinct class of people, to return power to the states, just as it is in the interest of federal legislators to usurp it, and this is true irrespective of what the people might think about it.
4.16.2009 6:58am
Bill Twist:
einhverfr:

So, what does this mean about improvised black powder weapons?

does this mean that if I import unshaped steel and make my own musket, import my own lead and make my own musket balls, make my own black powder etc, that there is no federal jurisdiction?


Antique weapons, and replicas thereof, are already exempted from federal firearms laws:


Title 18
§ 921. Definitions
(3) The term “firearm” means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not include an antique firearm.
...
(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.


You can buy a muzzleloading rifle, musket, or pistol, or even a cap and ball revolver or rifle, through the mail with no background check required.

You can even make stuff that would be illegal or highly regulated if it were a "modern" gun, like a sawed-off shotgun or a short rifle with no consequences whatsoever.

Heck, you can even go into business building and selling them without having to worry about getting an FFL. If you've got some mechanical and artistic talent, there is money to be made in making custom muzzleloaders for people, and you can get the parts at places like Dixie Gun Works (http://www.dixiegunworks.com) or Track of the Wolf (http://www.trackofthewolf.com).

Track has some especially nice "kits" to make authentic flint and percussion long rifles, jaegers, and plains rifles. My flintlock transitional long rifle was made from parts I ordered from Track.
4.16.2009 8:23am
Bill Twist:

You can even make stuff that would be illegal or highly regulated if it were a "modern" gun, like a sawed-off shotgun or a short rifle with no consequences whatsoever.


No FEDERAL consequences, I should hasten to add. Also, state restrictions may apply in some of the more egregiously anti-gun states, but we are talking about federal law.
4.16.2009 8:25am
pintler:
I believe that the federal payroll (Forest Service, BLM, etc) is considered important to the MT economy, as are ag subsidies. There is also a large AF base (ICBMs) and a Air Guard unit (tasked to defend against over the pole bombers in the cold war, and currently sending deployments to the S border for drug interdiction, and probably the mideast also). The local papers follow their budget ups and downs as closely as the wheat harvest, so I expect their economic impact is nontrivial. MT also has a pretty high ratio of interstate highway (and presumably funds) to population.

Whether paying for an interstate highway through MT, or basing ICBMs there means it is fair to accuse Montanans of hypocritically slurping at the Federal trough, I dunno :-)


On the reach of the commerce clause, I had a relative who worked for the US Dept of Labor, enforcing min wage etc. laws. IIRC, a business was considered presumptively engaged in interstate commerce if it grossed more than $XX (a pretty small number; most Mom-n-Pop stores qualified), if it had more than Y employees (again, a small number), if a long distance call had been made from the business phone, etc.
4.16.2009 10:07am
Oren:

If Montana makes everyone part of the Big Sky Militia and some untrained militiaman does what we can confidently predict one of them will do, the State of Montana will not be liable in a Sec. 1983 action because you can't sue states or state agencies under Sec. 1983.

City of Canton v. Harris creates supervisory liability in Sec 1938 in cases where the failure to train amounts to deliberate indifference. So you are just factually incorrect in asserting that you cannot sue States or agencies under S1983.
4.16.2009 10:38am
Oren:

Canton v. Harris only applies to municipal departments, not the state police.

It applies to the agency that would be responsible for training the officers. In that case, it was the muni, but by its terms it makes no distinction (AFAICT) between State and local police depts. The crux of liability under Canton is whether or not the supervisory agency failed to train the officer appropriately.
4.16.2009 10:40am
Oren:
Hmm, I hadn't considered the sovereign immunity question wrt Canton (monty's comment was after the ones I just responded to). That sounds plausible enough . . .
4.16.2009 10:43am
einhverfr (mail) (www):
Bill twist:

The only reason why I was suggesting black powder is that it seems more reasonable one could make it without resorting to interstate commerce. Not all historical black power weapons were muzzle-loading.

Now, suppose I design a black powder short rifle which is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action. That seems to qualify as an antique weapon under that definition.

Now, suppose I find a way to mold black powder (or similar low-tech explosive) into shape and I design a mechanism whereby sparks are applied to that fixed shape (but caseless) ammunition. It is not conventional rim or center-fire ammunition since no pins directly strike the ammunition. Still legal? Can I build a Gatling-gun-type device of this sort?

My question was much more jurisdiction-related since unlike in Raisch, my firearms designs and the ammunition for them would be limited to Montana and not readily substituted for other modern firearms.
4.16.2009 11:11am
J. Aldridge:
Cornellian: Nothing today can justify the courts behavior under Marbury v. Madison.
4.16.2009 11:32am
Bill Twist:
einhverfr (mail) (www):
Bill twist:


The only reason why I was suggesting black powder is that it seems more reasonable one could make it without resorting to interstate commerce. Not all historical black power weapons were muzzle-loading.


That's correct: Cap and ball revolvers (and rifles, for that matter), are a repeating technology that doesn't include fixed case ammunition, and they don't load from the muzzle.

There were also a number of single shot breechloaders, and some multiple shot ones, but the revolvers were the most practical solution.


Now, suppose I design a black powder short rifle which is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action. That seems to qualify as an antique weapon under that definition.

Now, suppose I find a way to mold black powder (or similar low-tech explosive) into shape


Oh, you mean like Pyrodex pellets? Or 777 Pellets? They already have them. Have had them for years.


and I design a mechanism whereby sparks are applied to that fixed shape (but caseless) ammunition. It is not conventional rim or center-fire ammunition since no pins directly strike the ammunition. Still legal? Can I build a Gatling-gun-type device of this sort?


Good Question. If I design a gun that uses Pyrodex pellets that are glued to the back of a bullet (essentially making caseless ammo), and then ignited by separate means (say, an electrical ignition like some of the newest inline muzzleloaders), is that kosher if they aren't loaded via the muzzle but by some other mechanism?

I don't know. Certainly that wouldn't be considered rimfire or conventional centerfire fixed ammunition, but it's not loaded by the muzzle, so it might be a grey area in the law.

I do know that you can use such ammo in a conventional cap and ball revolver.

You *MIGHT* be able to get away with making a replica of the Volcanic repeater, which used (very anemic) caseless ammunition, or an upgunned version of it using some form of external ignition.

Another option might be to design a modified harmonica gun.

Probably the best way to go is a revolver type mechanism, though. You could even provide for quick reloads by using spare loaded cylinders like they used to do in the old days.
4.16.2009 11:59am
cboldt (mail):
-- Now, suppose I design a black powder short rifle which is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action. That seems to qualify as an antique weapon under that definition. --
.
How? Being of your instant design, it's not an antique (made before 18xx) or a replica of such a specified antique, so it has to come under (C), and (C) is limited to muzzleloaders.
4.16.2009 12:22pm
Bill Twist:
cboldt (mail):



-- Now, suppose I design a black powder short rifle which is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action. That seems to qualify as an antique weapon under that definition. --




.
How? Being of your instant design, it's not an antique (made before 18xx) or a replica of such a specified antique, so it has to come under (C), and (C) is limited to muzzleloaders.


It hasn't been interpreted that way in the past.

For instance, the Ruger Old Army cap and ball revolver is not an exact replica of any gun made in the past, nor does it load from the muzzle. Yet it still falls under the exemption for antique firearms, as would any number of repeating firearms based on older technology, provided they don't use fixed ammunition.
4.16.2009 1:18pm
cboldt (mail):
-- For instance, the Ruger Old Army cap and ball revolver is not an exact replica of any gun made in the past --
.
Okay. Not an exact replica. That possibility seems to be addressed in the statute, as the statute provides for replicas, provided the replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade.
.
What pre-1898 model might be approximately replicated, (i.e., "einhverfr's design" starts from some antique base) is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action?
4.16.2009 1:39pm
Bill Twist:
cboldt :


What pre-1898 model might be approximately replicated, (i.e., "einhverfr's design" starts from some antique base) is a) breech-loading and b) automatically reloading (both pan and breech) via a bolt action?



Dreyse Needle Gun, perhaps? Upgraded with electronic ignition to get around the delicate 'needle' firing pin, and to make sure the caseless 'cartridge' (consisting of a Pyrodex Pellet glued to the base of a bullet) doesn't contain a primer and thus can't be considered "conventional centerfire" or rimfire ammunition.

Though, that might just be a grey area of the law, because while it doesn't use conventional ammo, it doesn't load from the muzzle.
4.16.2009 8:28pm
Nailer45 (mail):
The point is that the federal Government has become way too big and has forgotten that elected officials work to serve the people.

Yes the state does have the right to tell the feds to get lost and leave.

It is about time that someone stood up and said" enough "to the federal Government.

Those who say this is a bad idea must be obama/ eric holder supporters or just communists.
4.16.2009 9:38pm
Bill Twist:
Another possibility might be the Volcanic repeater, the predecessor to the Henry and Winchester lever actions. This could be especially true if you had two magazines: One for the bullets, and one for the Pyrodex/Triple Seven pellets, and perhaps an external ignition system that uses paper caps like some early percussion guns.

Again, though, that might fall into a grey area of the law.

Another option would be to just make the ammunition preloaded and integral to the barrel of the gun, and just have the gun be a frame that holds multiple barrels, or perhaps a kind of pepperbox arrangement. This would only be practical for handguns, obviously, but you could do that and ensure that you had the highest power load the barrels could handle safely, and while the ammunition cost would be initially expensive, you could return the empty barrels for a large deposit so they could be reloaded at the factory.
4.17.2009 7:14am
Knot (mail):
Interesting comments, specifically that despite so many lawyers commenting, there seems to be no consensus on what the law actually means. That is related to the Montana firearms issue.

Why no comments re: This may not only be political grandstanding but rather a carefully crafted provocative act to give the state of Montana standing for a supreme court case? This could be avoided merely by the agencies involved choosing to not enforce the same law in Montana that they enforce in the rest of the country. Such a case may not even have much to do with firearms, rather it might have more to due w/ I.C.C. and states rights. If you want to prod someone to act outside the law it would be difficult to find more eligible candidates than BATF(&now E) employees given their past behaviour as an out of control government entity.

Also, Montana is in a unique position regarding federal funds. The state has ample energy (coal and some oil) ample food supply and is somewhat self sufficient financially due to the 'coal tax' which is set aside to benefit the state after the coal runs out. That same kind of independent and self-sufficient spirit allows them a significant leeway in financial 'negotiations' with the feds.

The feds have lots of missiles (scattered) and military bases there. That is a liability for the feds and an item of potential leverage for the state if things get nasty. Don't forget that Wyoming has refused federal funds several times in the past before caving in, w.r.t. seat belt laws, min. drinking age laws and uniform driving violation reporting for commercial vehicles (HSA of 1986). Idaho has refused railway passage of DOE radioactive waste several times in the past. The highways and infrastructure are built. If they don't get maintained for a few years, who pays to fix them later? The feds, if they want maintained highways. So threatening federal funds to the state makes big political smoke, but doesn't tangibly hurt the state if they don't have to undertake the financial burden, but rather choose to curtail maintenance and upkeep.
4.17.2009 2:00pm
comatus (mail):
Those who say this is a bad idea must be obama/ eric holder supporters or just communists.

Nailer, though I couldn't agree more with your sentiment, keep in mind that on this venerable site, you're among the foresters of a Land Sown Thick With Laws--"man's laws, not God's." You and I are clear-cutters, and one day may face the consequence of that. The senior fellows here are gardeners. Some of these critiques of Montana law are good-natured attempts to figure out how to make it stick--and work. You're watching sausage made. Breathe deep and savor it. But yeah, there's probably a commie or two, also.
4.17.2009 3:22pm
MicroBalrog (mail) (www):
"Montana gets $1.58 in Federal spending for every dollar sent to DC. Oh, the humanity! "

So? Maybe some people don't WANT to get more money. Remember that Federal money ALSO means Federal control.
4.17.2009 9:31pm
Brooks Lyman (mail):
A quibble about terminology: a cap and ball blackpowder revolver may not load from the muzzle, but it does load from the front of the cylinder as against the rear, as in breechloading guns. So, in a sense, cap and ball revolvers are "muzzleloaders.
4.19.2009 9:46am
einhverfr (mail) (www):
I think Henry VIII had a breechloading gun as part of his personal armaments, and the earliest breechloading guns are from the 16th century. The issue seems to be though that antique firearms definitions seem to be based primarily around questions of the type of ammunition used. I didn't see anything in the current legal definition which suggested that it was firing-mechanism dependent or couldn't be automatically firing again, which is why I asked.
4.19.2009 8:31pm

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