Montana Poised to Buck Federal Gun Control

[virginia mountainman]

The proposed law aims to exempt firearms, weapons components and ammunition made in Montana and kept in Montana from federal gun laws. Since the state has few gun laws of its own, the legislation would allow some gunowners and sellers in the state to skirt registration, licensing requirements and background checks entirely.

http://www.flatheadbeacon.com/articles/article/montana_poised_to_buck_federal_gun_control/9392/

[havocmom]

1. GOP in MT is sweating out the increasing popularity of DEMs here and nationwide

They are preaching to their own little choir.

[bossy22]

2. i dont know how i feel about this

part of me says good for them, part of me says that federal laws aren't too unreasonable

[aikoaiko]

3. Its unlikely to work. Congress has a headlock on intrastate sales of new guns w/ the commerce clause

I don't see how instate sales qualifies but thats what's been law.

[dashrif]

5. I don't think they want it to work

They want to trigger a lawsuit with it under the 10th amendment.

[MichaelHarris]

9. 10th Amendment

sheesh, does anyone read past the second one?

[aikoaiko]

37. The commerce clause is how Congress gets around the 10th

geeesh, doesn't anyone know constitional law.

[Statistical]

42. Its only law until it goes to the supreme court and they say it isn't....

which may be the whole idea.

guns made in MT
gun transported only in MT
gun retailed in MT
gun owner in MT

If (and likely it is a longshot) they find it constitutional it could open a whole door for states rights.

Given MT strong states rights stance that may be the real prize.

[geckosfeet]

4. That's ok. There are no criminals in MT. And no one there would buy guns

to resell in Mexico or out of state.

[bossy22]

6. doubt it will make a real difference

very few guns would be made in montana....probably cheap single shots that are easy to make in a garage

but anyway....the fed government may not be able to do anything to stop them

[billyoc]

7. They make these bad boys there:

[east texas lib]

12. Now that's a plinker!

I fear no beer can!

[billyoc]

23. LOL, yeah. At $7 a bullet.

:rofl:

[rl6214]

17. Nice

Put me in for one.

[TheWraith]

54. Holy crap. 34 pounds and it only has a 5 round mag?

Come on. If .50 cal is your goal, an M82 weighs less and has double the magazine capacity.

[MichaelHarris]

10. Sure the Government can stop them

it's called the 10th Amendment. Do most people stop reading at 2?

[bossy22]

19. i think you need to re-read the 10th amendment

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

the 10th amendment is a limit on federal power, not state power

if you want to argue stopping them through the commerce clause, well you have a valid argument, but recently there has been a trend (since conservative leaning of the court) to constrict the reading of the commerce clause.

you should read U.S. V Printz which was a case which restricted use of the commerce clause in regards to the gun free school act

[MichaelHarris]

21. hahahaahahahaha

OK, tell me. Will the ore for the gun metal be mined soley in Montana? With foundry to process the raw material be also located in Montana? With the trees for the grips and stocks be grown and shaped in Montana? Will the lubricants be made at refineries located in Montana? I think you need to study a little further than one case.

I know Printz well, was just tested over it.

[MichaelHarris]

Do you know the

meaning of enumerated or textural? Enumerated powers are given to the government by the Constitution. The power you think Montana may have is enumerated in the Constitution, Montana can't make it's own. Study the states and marijuana usage especially the California cases.

[bossy22]

25. i know those cases

ive read the 2005 decision a few times

all im saying is that the power to enforce the gun law does not come from the 10th amendment

[MichaelHarris]

27. Gonzales v. Raich

http://www.oyez.org/cases/2000-2009/2004/2004_03_1454/ SO the Commerce Clause and the 10th Amendment would shut down Montana in a heartbeat.

[bossy22]

28. ........

the commerce clause would, not the 10th amendment, the 10th amendment would be what montana was using to try to enforce this law


Gonzales V Raich- Barnett used the 10th amendment to try to uphold the California law, but the court rejected it...not the other way around

again the 10th amendment is not a restriction on state powers, only on federal powers, the commerce clause is used to restrict those powers

i dont think the government (feds) is going to invoke the 10th amendment as its defense...its going to invoke the commerce clause to defend against a 10th amendment claim

[dashrif]

30. +1

[MichaelHarris]

31. So you're

saying the Federal Gun laws for Montana mean nothing? Can Montana make and sell any type of gun they want? The 10th Amendment is very important here. Let me ask you, is there Federal Laws for background checks? Are there Federal Laws forbidding the sale of firearms to felons? Those are enumerated in the Constitution, they are power the Federal Government has over the states. The 10th Amendment can be used in two different directions.

[bossy22]

33. oy...you arent understanding me

im saying that federal gun laws DO APPLY through the powers vested in congress in the commerce clause. what im arguing with you is that the 10th amendment isnt where the feds get the power to enforce these laws, its the opposite. The power that the 10th amendment gives is restricted by the commerce clause in article 1 sec. 8.

also there is no constitutional amendment saying that background checks must be performed before selling a gun. those are laws. Someone like you (who seems to be studying constitutional law) should be able to understand the difference between a law passed by congress and an amendment to the constitution.

the constitution has parts in it (the commerce clause) that congress can use to enforce laws like the brady background checks, and also has parts in it which are "supposed" to limit those powers (the 10th amendment)

[MichaelHarris]

35. I'm not sure

I can really help you understand, I'll just leave you with this:

The 1968 Gun Control Act

The Brady Act of 1993

The Domestic Violence Offender Gun Ban of 1996

The Constitution, Article 1 Sec 8, "provide for the common Defence and general Welfare of the United States" i.e., Congress created these Acts, they are enumerated based on the Constitution's ability to create the Acts, Bills, and Federal Laws. The 10th Amendment has everything to do with this, if it doesn't we have states making any law they want. The power for Congress to pass these Acts is enumerated. Even though the actual law isn't in the Constitution the power of Congress to create it is. If I can't get you to understand that then I'm lost, I can't make it any clearer.

[MichaelHarris]

8. Montana and gun people need to read past the 2nd Amendment

10th Amendment " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As long something is enumerated in the Constitution States can't overrule it. Federal gun law trumps whatever Montana thinks it wants to do. You gun guys do know there is more than one amendment right?

[bossy22]

11. but federal laws

only regulate interstate commerce

[MichaelHarris]

13. So you're

able to promise and prove that weapon and ammunition would never enter interstate commerce? Cases such have these have been tried over and over, I just finished my Interstate Commerce section in Constitutional Law and your defense won't hold water.

[bossy22]

14. i cant promise

or prove that it would never affect interstate commerce...thats the beauty of the commerce clause almost anything and everything will affect interstate commerce in some way or another

[MichaelHarris]

15. Does the

right for Women to vote fall under the Commerce Clause? Can Montana exclude women from voting? See where your use of the Commerce Clause is wrong?

[bossy22]

16. well thats a constitutional amendment

enforced using the 14th amendment, not the commerce clause

im not using the commerce clause incorrectly- hell im not using it- im just saying its a gray area in the judicial system

[MichaelHarris]

18. and the 10th

is what if it's also not an amendment? It's not a gray area, it's been tried over and over, 95% of the time the states lost.

[bossy22]

20. no, yes

the 10th amendment is about limits on federal powers, not on states (10th amendment= states rights)

you are right that if money had to be bet, you should bet on Montana losing, but there is still that 5% and with the right argument, you may be able to win....i dont know...im not a lawyer...all i do is read

[MichaelHarris]

22. then read this

OK, tell me. Will the ore for the gun metal be mined soley in Montana? With foundry to process the raw material be also located in Montana? With the trees for the grips and stocks be grown and shaped in Montana? Will the lubricants be made at refineries located in Montana? I think you need to study a little further than one case.

[bossy22]

24. you are misunderstanding my basic premises

that I DONT KNOW if it will be held valid or not

you and i are in agreence on that

all i was saying otherwise that the power to enforce federal gun laws does not come from the 10th amendment

[MichaelHarris]

26. study

the marijuana cases in regards to the Federal government and California i.e. medical marijuana, then you'll see there is no loophole for Montana to do this. The Court decided that even though the marijuana was grown in California and used solely in California it was interstate commerce because there was a national market for it. Yes, the Supreme Court said marijuana was commerce. That very same case would be used to squash Montana. http://www.oyez.org/cases/2000-2009/2004/2004_03_1454/

[bossy22]

29. you are right regarding

the commerce clause

but not the 10th amendment

[MichaelHarris]

32. I'm debating you in two locations

I'll keep it here. Are there Federal Laws demanding background checks? Are there laws forbidding the sale of firearms to felons? Those are enumerated powers the Federal Government has in the Constitution, Montana can't make it's own. That is the 10th Amendment. It can work in two directions.

[bossy22]

34. oy....you arent understanding what i say

im saying that federal gun laws DO APPLY through the powers vested in congress in the commerce clause. what im arguing with you is that the 10th amendment isnt where the feds get the power to enforce these laws, its the opposite. The power that the 10th amendment gives is restricted by the commerce clause in article 1 sec. 8.

also there is no constitutional amendment saying that background checks must be performed before selling a gun. those are laws. Someone like you (who seems to be studying constitutional law) should be able to understand the difference between a law passed by congress and an amendment to the constitution.

the constitution has parts in it (the commerce clause) that congress can use to enforce laws like the brady background checks, and also has parts in it which are "supposed" to limit those powers (the 10th amendment)

[MichaelHarris]

36. Can't help ya

I can't really help you understand, I'll just leave you with this:

The 1968 Gun Control Act

The Brady Act of 1993

The Domestic Violence Offender Gun Ban of 1996

The Constitution, Article 1 Sec 8, "provide for the common Defence and general Welfare of the United States" i.e., Congress created these Acts, they are enumerated based on the Constitution's ability to create the Acts, Bills, and Federal Laws. The 10th Amendment has everything to do with this, if it doesn't we have states making any law they want. The power for Congress to pass these Acts is enumerated. Even though the actual law isn't in the Constitution the power of Congress to create it is. If I can't get you to understand that then I'm lost, I can't make it any clearer.

[bossy22]

38. i understand what you are saying

the 10th amendment is important in this discussion- but it does not expand federal powers, it was put there to protect state powers from federal enroachement. The amendment for all intensive purposes means nothing due to modern commerce clause jurisprudence

those 3 laws that you mentioned are not enforced using the 10th amendment, they are enforced using the commerce clause because of the percieved interstate commerce in firearms

im going to head to bed, you have a goodnight and thanks for the good debate

[MichaelHarris]

39. You may be more right than me

I talked to my Con Law professor and you may be more on point than me. A 10th Amendment challenge could happen but it would be remote. They would first use the Commerce Clause.

[bossy22]

40. why would the govt use a 10th amendment challenge?

there rights are restricted under it, they'd only have the commerce clause- cause thats generally the only power the federal government has to enforce its laws

[MichaelHarris]

41. The feds

could use it if the states we're trying to circumvent an enumerated power. The best example I can give is if a state decided to segregate schools again. My argument was a long shot according to my professor but it could be used albeit after a Commerce Clause challenge failed.

[bossy22]

43. but how could your arguement even hold water

or how could you even argue a 10th amendment claim

im not being condescending im saying that from my understanding its impossible to make an arguement since the 10th amendment restricts federal power not states. A state can never be in violation of the 10th amendment because the 10th amendment puts no restrictions on the state, only the federal government


it would be like the feds suing me for infringing on my first amendment rights....it doesnt make any sense since the 1st amendment is there to protect me, not the government. The government couldnt raise a 1st amendment suit against and individual and neither can the federal government raise a 10th amendment suit against the states- only the other way around.

the commerce clause is the only arguement the feds can use- since its the only place where they get the power to enforce gun laws....its not specifically mentioned in the constitution

[MichaelHarris]

44. Ways the 10th

has been used to steer state politics and/legislation http://www.lectlaw.com/def2/t065.htm

[bossy22]

45. interesting

thanks for the link...but it just reinforces what i have said all along....basically the 10th amendment is dead

this line says it best

the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States, 505 U.S. 144, 157 (1992).

[MichaelHarris]

46. just as I thought

in your desire to be right you read one case. there were at least 4 that showed how the 10th was used. I'm done with you.

[bossy22]

47. oy vay

you really need to go back to constitution 101....you are just misunderstanding everything....

i see in the other cases that the 10th amendment was part of the discussion....but it was used as a defense against a federal act by the state, not the other way around.

again the 10th amendment is a restriction on FEDERAL POWER....IT CANNOT BE INVOKED AGAINST A STATE.

so lets look at it this way, can New York sue me for violating my 4th amendment rights.....no....because it has no standing. The 4th amendment is there to protect me from the state, and therefore cannot be used by the state against me...they could possibly use other means to "go around the 4th amendment" but they cant use the right protected by the 4th amendment against me....

and that goes for the federal government. Yes the 10th amendment plays a big role in state v federal power, its the clause in the constitution which basically reaffirms the states sovereignty.

you misunderstand the 10th amendments purpose- and therefore dont understand that it cannot be used against the states. The right protected in the 10th amendment is reserved to the states and the people, not the federal government....therefore the federal government can't bring suit against a state for grievances against the 10th amendment. What the federal government can do is say that there authority under the commerce clause is applicable and therefore the 10th amendment isnt violated since the congress's authority comes from an enumerated power given to it by the constitution.

so in conclusion, the 10th amendment plays a big role in this debate....since its the gray area that both sides will fight over

[MichaelHarris]

48. you truly

are an idiot. Don't insult me with Constitution 101 snips. You clearly have never studied the law. Like I said, I'm done with you, find a fight elsewhere.

[rl6214]

49. Internet manners

Aren't they great?

[bossy22]

51. im not an idiot

you completely misunderstood the 10th amendment of the constitution....you have yet to prove me wrong

the cases you all sent me were examples of how the rights under the 10th amendment are constrained...not how the federal government used the 10th amendment to enforce its laws.

instead of calling me names prove me wrong...

remember your earlier post where you said "ofcourse the government can stop them- its called the 10th amendment"

thats like saying "of course the government can restrict free speech- its called the first amendment"

and for the record- i passed my con law class with an A- (i handed in the mid term paper late)

[pipoman]

50. An interesting failure

somewhat in the vein that Montana is attempting to exploit is the inability by the Federal Gov to require NICS background checks on intrastate private sales of firearms. The whole 'gun show loophole' hot button has been around since the passage of the Brady Bill. Every 'tough on guns' candidate for Federal office has vowed to 'close the gun show loophole', both Dem and Repug, yet none have been able to find a way to implement the commerce clause to include private, intrastate sales of personal property.

Oh, and upthread you said something about single shot rifle manufactures being the likely only result of this if successful. I disagree. Most of the gun manufacturers in the US started as a small or intermediate localized machine shops (Kimber comes to mind). I believe the true intent of the Montana attempt is to lure existing manufacturers who are currently located in less friendly states (such as ArmaLite, Springfield, Rock River, Rock Island, Baer, etc.) to Montana.

[NewMoonTherian]

52. Interpreting the commerce clause that way...

essentially makes it absolute, doesn't it? There's no case in which federal law wouldn't override state law. So what would be the purpose of the 10th amendment in the first place?

[Statistical]

53. Exactly.

where is the limit.

Could federal law shut down an electrical power plant in MT because the air flows across states borders and MT can't prove the air entering the powerplant isn't "only MT air"?

Or what about Federal law prohibiting person from working in gun industry in MT because the DNA in their blood contains organic matter from other states (if any ancestor ever lived in another states)?

Both laughable. No court has EVER seen the commerce clause having that much lattitude.
In recent years the courts have seen a smaller scope on the power of commerce clause.


What could the feds do?

Well lets say MT wins and can produce & sell guns to residents w/o federal intervention.

They could attack the material supply. They could pass a law restricting metal ores from passing states lines into states that don't support NICS system. They could require buyers to certify ore will not be used for producing "non-compliant" weapons.

Of course that would require a new law one that MT is betting there won't be enough support for federally.

[NewMoonTherian]

55. Even if that were the case...

It would seem all the materials required to produce guns are available inside Montana, if not in the form of ore, then as landfill and recyclable materials(which may at some point have some from outside the state. Crud...).

Ammunition might be more difficult. Is there a powder plant in-state? Maybe that's not the right question. Is there a plentiful supply of sulfur and saltpeter? If you want smokeless powder it might get tricky.

Nonetheless, a few brave souls in Montana seem determined to fight(figuratively) for state sovereignty. A few other states are getting riled up too.