APS lawyers and politics junkies! Explain the point of this, please.

[MicroBalrog]

http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm

So let's say it passes (it won't).

What will they be able to do with this?

I don't think much, but I don't always understand.

[geronimotwo]

no ffl if manufactered and sold in state.....suppressors allowed........full auto allowed.......

[MicroBalrog]

no ffl if manufactered and sold in state.....suppressors allowed........full auto allowed.......

I think this has an exemption for not allowing full-auto.

But I mean, doesn't federal legislation trump state law in areas over which FedGov can legislate (which is EVERYTHING nowadays)?

Even if this passes, what can they DO?

[De Selby]

They can do nothing with this-states can't exempt themselves from the commerce clause.

This bill's parody of the 10th amendment and the statehood "contract" is not even close.  The proper response if that's the kind of government you want is to get it enacted into law, not to pretend that the law fits your pet theory of federalism.

[MicroBalrog]

Quite. But I'm confused, why are the guys who are sponsoring this bill doing this?

[De Selby]

Quite. But I'm confused, why are the guys who are sponsoring this bill doing this?

Politics-unconstitutional/not even close to legal bills get proposed all the time.  Some of them are very good ideas.  They can be useful just to stir the pot and get people debating the issue.

Most states have special units that give advice on this sort of thing to the legislators, but obviously the sponsors of this one either didn't go there or disregarded.

They could do like some states have done with marijuana-de facto legalise it, and then at least the only risk of enforcement is from federal police (although that's a double edged sword-there are fewer per city, but the penalties in the federal system are draconian compared to the states.)

[AJ Dual]

Quite. But I'm confused, why are the guys who are sponsoring this bill doing this?

I guess I'd like to see details of how shootingstudent's feels the interpretation fails on the 10th or the ICC.

My best guess is to force a standoff with the feds over some test case someday, and try to get more pro-gun case law based off of D.C. vs. Heller. Or get the 10th or the ICC pushed back a bit in favor of the states, at least in regard to firearms.

It's this part:

(2) Upon written notification to the Montana attorney general by a Montana citizen of intent to manufacture a firearm, a firearm accessory, or ammunition to which [sections 1 through 7] apply, the attorney general shall seek a declaratory judgment from the federal district court for the district of Montana that [sections 1 through 7] are consistent with the United States constitution.

So someone's going to make or commercialy sell a firearm in Montana that violates the NFA, GCA or some other Federal regulation, and the Montana AG would have to go poke the Feds the instant he was requested to. If they just wanted to try and insulate Montana's citizens from the Fed, they'd say something else about defending them, and not running to the feds for clarification the first time someone tests the law.

If they were looking for a more passive defense fom Feds, they'd just stipulate that the AG's office defend the citizen or some such, or not assist the Feds in any prosecution etc.

So this seems deliberately designed to set up a test case.

[Rudy Kohn]

It looks like they're trying to explicitly define firearms "manufactured and retained in Montana" as outside the jurisdiction of the federal government, being specifically intrastate, rather than interstate commerce.  This would, in theory, invalidate federal gun laws for such firearms, at least until such time as a federal anything looks at it, which, according to section 7, would be as soon as someone in Montana decides to manufacture a firearm.  It specifically doesn't apply to full-auto stuff (section 5).

The only real uses would, I think, be suppressors manufactured in Montana and kept in Montana, and it would work against any federal "assault weapon" ban that might come up in the next few years, since the banned firearms would not fire "two or more projectiles with one activation of the trigger."

Good luck with that.

AJ Dual posted while I was typing, and I agree with him, that it's designed to force a test case for an interstate commerce fight, for a firearm which has never crossed state lines.

[De Selby]

The 10th amendment has had lots of test cases-if you read through them, the results of this claim will be predictable.

The commerce clause is completely independent of that-the Federal government can do whatever it wants with respect to interstate commerce, 10th amendment notwithstanding.  The only thing approaching a limit is that the law must have a remotely commercial purpose (not that hard to conjure up, really.)

As for declaratory judgments-I don't think it's even possible to do that in a criminal case (uninformed opinion there, of course.)  The more likely scenario is that the Attorney General will be stuck defending a certain loser of a case, and will get to shake the defendant's hand as he leaves court to begin his 10 year plus sentence.

[MicroBalrog]

The 10th amendment has had lots of test cases-if you read through them, the results of this claim will be predictable.

Shootinstudent is right, I think.

Whether or not I think this is the proper interpretation of the Constitution, the Court has ruled (starting with Wickard and going on until very recent times) that just because a given object hasn't moved in interstate commerce doesn't mean it doesn't apply to it.

[Rudy Kohn]

just because a given object hasn't moved in interstate commerce doesn't mean it doesn't apply to it.

Yeah, that's why I said "Good luck with that."  The instant it touches any authority not in Montana, it will fall fast and hard, which, at least in my opinion, is kind of a shame.

[T.O.M.]

It looks to me like someone trying to make a statement with a law, rather than having some real goal or purpose.  The statement?  Don't pass gun control laws.  That simple.  As has been pointed out, the feds can, and often will, stretch the Commerce Clause to include about anything.  After all, if the y can use the commerce clause to outlae segregation in hotels, becuase of the soap used in the hotel being a part of interstate commerce, then anything is possible.

Looks nice on paper, though.

[PTK]

It IS Montana, don't be too shocked if it passes....

[crt360]

After all, if the y can use the commerce clause to outlae segregation in hotels, becuase of the soap used in the hotel being a part of interstate commerce, then anything is possible.

Yep.  Aside from it being completely ineffective at skirting the commerce clause, I wonder why they excepted shotguns under new Section 5 (4).

[El Tejon]

What will they be able to do with this?

Sit in their mom's basement and argue about Kirk or Picard while wearing Wookie suits, i.e. not a thing.

[AJ Dual]

Sit in their mom's basement and argue about Kirk or Picard while wearing Wookie suits, i.e. not a thing.

Ultimately, you're right.

But it would be damned amazing thing to see if the Montana State Police got sent to prevent the ATF or any other federal agency from apprehending someone who followed this state law.

Emphasis on "damned amazing" as it won't happen, even in Montana.

[El Tejon]

It can only happen in the Land of the Libertarian, aka WookieSuitLand=>http://www.amazon.com/Molon-Labe-Boston-T-Party/dp/1888766077

All the trappings of Libertarian scribblings, Ex Deus Machina, a Chinese buffet of freedoms and a complete lack of duty.

[Matthew Carberry]

Also, I note a COMPLETE lack of protection for those shoulder things that go up.