Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

January 22, 2009

Montana Brings A Gun (10th Amendment) To A Knife (Interstate Commerce) Fight

by Brad Warbiany

This could get interesting:

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.

Reading through the introduction to the bill, Montana directly claims that the 9th and 10th Amendments, the Montana state Constitution, and the fact that they are declaring all of this to be intrastate commerce removes them from federal regulation on firearms.

I’m not sure how this will stand up to the precedents of Filburn and Raich. Based on his concurring opinion in Raich, one may suspect that even Scalia (if he’s consistent) would strike down Montana’s statute:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez

Scalia just wrote the government’s argument in case they try to implement their will. They simply will claim that this intrastate activity substantially undercuts their ability to regulate firearms in interstate commerce.

Morally, I applaud the state of Montana for standing up for their Constitutional rights. Given modern Constitutional jurisprudence, though, I don’t have high hopes for their success.

Hat Tip: Billy Beck

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  • http://www.noangst.blogspot.com Mike

    Doesn’t have a snowball’s chance in hell (the 10th has been on life support in a vegetative state for a long time, this is going to just pull the plug) but it’s always nice to see someone piss off the ATF.

  • http://mymontana.com horselogger

    I am glad to see our legislature standing up for the rights of its citizens. This bill is only the tip of the iceberg (and no there not melting away) When the rights of people are preempted by wolves, owls, bugs etc. it is time to resist. Given the socialist regime now running our federal government the freedoms we have had in the past are in danger of disappearing. We must be ready to take whatever steps are necessary to protect them.

  • http://pith-n-vinegar.blogspot.com/ Quincy

    Montana kicks ass! Now, if California could take a lesson… (talk about your snowball’s chance in hell)

  • Darren

    I live in Texas. This makes me want to move to Montana. I can handle the cold if I know I’m free!

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