Montana and the SAF lawsuit

[Marlin T]

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State group sues to limit gun control

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By MATT GOURAS Associated Press | Posted: Friday, October 2, 2009 12:00 am | (8) Comments




If Montana has its way in a lawsuit filed Thursday, there will be far less federal gun control in the state.


The state's libertarian streak - which has spawned efforts to buck the federal Real ID Act and sparked widespread contempt for the Patriot Act - is now triggering a fight over whether Montana should have sovereignty over made-in-Montana guns and equipment.


If gun advocates win, the state could decide which rules, if any, would control the manufacture, sale and purchase of guns and paraphernalia. And Montana would be exempt from rules on federal gun registration, background checks and dealer-licensing.


"For guns, it means we can make our own in Montana and sell them in Montana as long as they are stamped 'Made in Montana' and don't leave the state," said Gary Marbut, who runs the Montana Shooting Sports Association and is leading the lawsuit. "We will be able to do that without federal regulation, or having the ATF breath down your neck."
The association, joined by the Second Amendment Foundation in the lawsuit, hopes to ultimately win a U.S. Supreme Court ruling that limits the application and reach of federal rules over state business. The suit is challenging the right of the federal government to oversee gun sales under the guise of interstate commerce regulation.


The filing in U.S. District Court in Missoula comes a day after the U.S. Supreme Court said it would consider a challenge to Chicago's handgun ban and adds to a growing list of federal lawsuits filed by gun-rights proponents that challenge local or federal gun control laws.


The federal Bureau of Alcohol, Tobacco, Firearms and Explosives recently reminded Montana gun dealers that they need to properly mark guns, fully record and report all sales, conduct background checks and follow all the rules.


"These, as well as other federal requirements and prohibitions, apply whether or not the firearms or ammunition have crossed state lines," assistant ATF director Carson Carroll wrote in a letter to dealers.
That warning was prompted by a declaration passed by the Montana Legislature earlier in the year, which stated that Montana held authority over guns made in the state. The declaration, passed under the Montana Firearms Freedom Act, went into effect Thursday.


Attacking federal gun control was an easy target in a state like Montana, where politicians of all stripes actively seek the endorsement of gun rights groups. Gov. Brian Schweitzer, a Democrat, said Thursday that the lawsuit is a way for the state to assert its sovereignty.
Tennessee has passed a similar declaration, although no lawsuit has been filed there.


The declaration only advanced in the Montana Legislature because of arguments it would spur economic development with gun manufacturing, said Travis McAdam of the Montana Human Rights Network. Other issues will arise if gun advocates are successful with the lawsuit, he said.
"What happens when these guns do show up in other states and what if they are used to commit crimes in other states?" McAdam said.
Marbut pointed out that it's already against the law for felons in Montana to buy guns, and it would be illegal under federal rules to take a made-in-Montana gun to another state. Also, the Montana Firearms Freedom Act specifies that machine guns or guns that shoot explosive projectiles aren't allowed in the state.



Posted in State-and-regional, Local on Friday, October 2, 2009 12:00 am

[pickenup]

No machine guns.

[Blackhawk Dave]

How did Max Baucus become Montana's senator?

[Bill DeShivs]

Tenn.'s Firearms Freedom Act has been in effect for a month, now. It specifically allows sound supressors. ATF is having a fit and sending FFL dealers all kind of letters telling them they will prosecute for any federal violations.
But, it seems that you won't need an FFL to sell TN made guns to TN residents, and it looks like any individual could make their own supressor.

[johnlives4christ]

and i hope kentucky is next on the list

[kingchip]

Where the hell is Texas in all this???

[Blackhawk Dave]

with the 2/3 rule in the senate - nowhere.

[Suicide*Ride]

Hmmmmm....Montana or Tennessee??? Choices, choices.....

SR

[Marlin T]

You are correct Pickenup, no machine guns.

[gunner221]

I hope Montana is successful. If so, then other states may join in and start producing their own guns. I live in Colorado and it would be great to have that option here.

[armedandsafe]

"No machine guns."

Tell me, sir, do you go down the stairs one step at a time, or just one step?

Pops

[Marlin T]

The lawsuit is posted online at this site.

http://www.examiner.com/x-1417-Gun-R...om-Act-lawsuit

[belercous]

This suit is sure to fail unless the Court becomes "activist." The S.C. has held that the Commerce Clause of the Constitution grants Congress the power to legislate on anything that affects interstate commerce.
Certainly, you say "this is not interstate commerce. The law was written to keep these guns out of the "interstate" part of commerce." Yes, it was, and for that exact reason.
However, in Wickard v. Filburn 317 U.S. 111 (1942) the Court held that a farmer who grew his own wheat to feed his own cattle was in violation of a New Deal law regulating the price of farm commodities. The wheat never was for sale, interstate or otherwise, and went to feed his own cattle. Nevertheless, the S.C. held that since he grew his own wheat, it effected the price of wheat (less demand, lower prices) nationwide. Considering that Mr. Filburn only grew 23 acres of wheat, this is specious reasoning to be sure, but it is the law of the land nonetheless.
I certainly do not agree with the Court's reasoning for it has given Congress carte blanche to intervene in damn near anything it wants to now. This, along with the "neccessary & Proper" clause has been the basis for the wholesale expansion of the Federal government into areas unintended and undreamed of by our founders. Wickard v. Filburn is one of the most egregious examples of the violation of common sense to be found by our beloved S.C.
One case (and I cannot recall any others) which has reined-in Congress, albeit mildly, involved another (how appropos) restrictive gun law. The case is titled United States v. Lopez 514 U.S. 549 (1995) and involved the 1990 Federal law prohibiting handguns near schools. Lopez ultimately won the because the Court decided that the link between schools and interstate commece was too tenuous to support Congress's action. But this is the only case I know of where Congress has been limited under the Commerce Clause.
Don't shoot me, I'm just the messenger. But really, unless the Court becomes "activist," overturning prior decisions (which would violate the judicial rule of stare decisis) this case is bound to lose.

[dbrodin]

Originally Posted by belercous

One case (and I cannot recall any others) which has reined-in Congress, albeit mildly, involved another (how appropos) restrictive gun law. The case is titled United States v. Lopez 514 U.S. 549 (1995) and involved the 1990 Federal law prohibiting handguns near schools. Lopez ultimately won the because the Court decided that the link between schools and interstate commece was too tenuous to support Congress's action.

I think this is the case I was inquiring about in a different thread.

http://www.thefirearmsforum.com/showthread.php?t=67600

[tntrucker]

Would like more info on effect of Tn. Firearms Freedom Act- I was under the impression it got shot down by the Feds. Just went to Tn. Firearms Assoc. page; read the letter from ATF? Basically Feds say 10th Amendment doesn't matter. Has anything changed?

[belercous]

Basically, the 10th Amen. means nothing. I haven't researched it, but I do not recall any cases being decided in favor of the 10th Amen., and certainly no important ones have been won using this argument. The Tennessee law will fail for the same reason that the Montana law will fail. I seriously doubt that either of these cases will be taken up by SCOTUS unless an appellate court rules in their favor. That's not likely as this is an area of "settled law."
I was shocked (but gladdened) that the Court ruled in favor of Heller in Heller v. D.C. Up until this time the 2nd Amen. was never judicially considered to be a right held by an individual. Here, the Court was activist. And rightly so (in my mind at least). Thank the NRA for this as they have managed to change the public perception of the meaning of the 2nd Amen., starting in the early 20th cen. Now, we need to have the 2nd Amen. "incorporated." This means that it will apply to the states. (Originally, none of the Bill of Rights applied to the states. An individual never had a right to free speech, illegal search & seizure, etc. from their state. The Bill of Rights only applied to the Federal government.)
I kinda doubt that the Court will incorporate the 2nd Amen. as the Heller decision was narrowly drawn. Of course, if they don't, the Court will be inconsistent in their logic. Then again, the Heller decision was terribly inconsistent in its logic and selective in its facts. It was also a decision based on concensus; what would a majority sign on to? Even the concurring and dissenting opinions made no sense. I don't hold out hope for incorporation as it would be a wholesale nullification of state gun laws. SCOTUS, as a rule, is hesistant to nullify legislative enactments. To be logically consistent, which the Court never was, would mean that damn near any gun law would violate the Constitution (...shall not be abridged.) Well, limiting me to a 10 rd. magazine or a semi-automatic weapon is an abridgement.
And then we have the issue of "...and bear arms." Which, if we go back to a 1791 contemporary dictionary we find that "bear" means to "carry." Does anyone seriously believe that the Court is going to say that the 2nd Amen. really means what it says? Not gonna happen. I wish it would, but I'm not under a delusion.
Now I have made impassionate and logical arguements on why we should allow concealed-carry (I live in Illinois where we have no such thing), but I know better than to use a constitutional reason for why this should be. Fact will shoot this argument down every time, reason won't, but reality always triumphs.
Sorry to go off on a diatribe and write a treatise. I think I need stronger meds.

[armedandsafe]

Sorry to go off on a diatribe and write a treatise. I think I need stronger meds.

If weak meds give birth to such a treatise, I think you should just quit the meds cold turkey.

Pops