The Attorney General, Eric Holder, (AP Photo/Alex Brandon)
I am going to get into trouble with my fellow Gun Rights Examiners today, but I have to point out the obvious for anybody who has researched the case law pertaining to the Commerce Clause. Fellow Gun Rights Examiner David Codrea and Cleveland Gun Rights Examiner Daniel White have published articles praising the Montana Firearms Freedom Act and a recent lawsuit filed in federal court to enforce it against the federal government and Attorney General Eric Holder, pictured at right. The lawsuit filed by the Montana Shooting Sports Association and the Second Amendment Foundation is an excellent fundraising tool, but it is destined to fail. More importantly, the lawsuit draws money and attention away from real struggles for the right to bear arms that can actually make a difference.
The Firearms Freedom Act
The "Firearms Freedom Act" model legislation that is "sweeping the nation" is merely political grandstanding and promises something that none of the politicians supporting it are able to deliver.
The promise of the Firearms Freedom Act is that firearms manufactured entirely in one state would be free from federal regulation. The promise is merely illusory, as the legislation will make no difference in Montana or any other state that adopts it. The United States Supreme Court has already ruled that Congress has the power under the Commerce Clause to regulate firearms manufactured in one state.
The federal case law
In 2003, the Ninth Circuit Court of Appeals, which sits in California, held that the Commerce Clause did not permit Congress to regulate a machine gun manufactured purely intrastate. See U.S. v. Stewart. This had the result of making unregistered homemade machine guns legal in the Ninth Circuit if there was no state law banning them. The Supreme Court vacated the opinion, however, and remanded to the Ninth Circuit to re-evaluate its holding on the basis of Raich v. Gonzalez, which held that medical marijuana grown for home use, with no intention to engage in interstate commerce, was subject to Congress's power to regulate interstate commerce. On remand, the case was reversed, since if Congress can ban homemade marijuana, there is no reason to believe that Congress cannot ban a homemade machine gun.
Applying the case law to the Montana Firearms Freedom Act
Since the Supreme Court has already declared that Congress has the power to regulate one homemade gun, it is a foregone conclusion that Congress can regulate a Montana firearms factory or dealer who sells only to Montana residents. The first manufacturer, dealer, or buyer to violate federal firearms laws will be arrested by the ATF and sent to federal prison, and there is nothing that the Montana politicians who passed the Montana Firearms Freedom Act can or will do to stop it. With the notable exception of New Hampshire, nobody is proposing to actually do anything to stop federal agents from enforcing federal gun laws.
This leaves some wondering why politicians would pass such a law if they are not willing to enforce it. The answer is clear. Posturing. The Firearms Freedom Act is an easy way to claim support for the Second Amendment at election time without actually having to do anything real to support the Second Amendment. What is worrisome is that so many voters are buying what the politicians are selling.
Real right to bear arms issues in Montana are being ignored
Montana arrests citizens who exercise the right to bear arms in public buildings. Montana makes it illegal for teachers to carry a firearm to defend students from a violent attack. Passing a populist law as a purely symbolic gesture is a lot easier than addressing real issues, such as why Montana does not trust its citizens to carry a gun in the same room where alcohol is served when other states do. Montana is one of extremely few states that actually declares it a crime to walk into a bank while carrying a handgun.
Conclusion
With real issues to address, the Firearms Freedom Act is nothing more than an idle distraction. Passing a do-nothing law is a lot less difficult than tackling controversial questions about when and where it is appropriate to categorically ban a basic human right. What the politicians are hoping is that they can make a purely symbolic gesture and still get away with claiming to support the right to bear arms at election time.
The Firearms Freedom Act web site states that the Firearms Freedom Act is coming to Georgia. Do not let the politicians under the Gold Dome in Atlanta be distracted in 2010 from repealing Georgia's public gathering law and Georgia's extraordinarily long list of places where the right to bear arms is prohibited.
UPDATE: MSSA Response, Quit being a wet blanket on the flames of liberty
Related Examiner articles with a contrary viewpoint:
Federal government responds to Montana Firearms Freedom Act
Eric Holder seeks to dismiss gun rights for Montanans - and us all
- Website offers rallying point for 'Firearms Freedom Act'
-
Gun groups fire back at feds with Firearms Freedom Act lawsuit
- Don't surrender so quickly on Firearms Freedom Acts
- NRA to Firearms Freedom Act supporters: You're on your own
Comments
You are, of course, exactly right. I've been saying the same thing to the members of an email discussion group of which I'm a member (at least one of whom is from Atlanta).
While it is apparent that Montana legislators need to get off there collective behinds, and address some of the issue that you have presented, I think there are a couple of facets of the FFA that you are missing.
1) It is a club to beat the legislators over the head with - "You stood up to the feds, but you won't stand up to the libtards in our own state? Start fixing these issues now!"
2) It is imperative - it is a matter of the survival of this nation - that we challenge the New Deal SC interpretation of the Commerce Clause. The "living document" justices would be hard pressed to hold to the broad interpretation if a majority of states were actively fighting it. I'll give you and example: The 1934 Firearms Act was primarily a tax vehicle. So are most Federal liquor statutes. Yet you can produce alcohol on your own property for your own use perfectly legally - provided you don't break any other laws doing it.
Continued
...continued
The Firearms Freedom Acts are the long game. State laws are the short game. If you want to go to the Superbowl, you dang well better have both - and a good defense too.
If someone in Montana would open a firearm manufacturing plant, with no intent of selling these arms across State borders, and then denied the Feds access to the plant or their records, they would be arrested. However, if the citizens of Montana would say, "You are breaking our State law" and an armed force of citizens would release the arrested persons and escort the Federal agents to the State border, there isn't really too much the Feds could do. I'm sure even the Feds wouldn't put 200 Federal agents up against 10,000 armed Montana citizens. The Feds don't want another civil war. The power is really with the people, they just haven't exercised it yet. The citizens have been working to resolve the matter legally. But just as Thomas Jefferson said that the Second Amendment was intended so that citizens could overthrow a corrupt government, you know, one that doesn't follow the Constitution and Bill Of Rights, so can the citizens of ANY State rise up and tell the feds to take a hike.
Wickard was unprecedented too, but that didn't make the statist tyrants give up. It repealed 166 years of sanity. Next to that, setting aside 68 years of logic-defying idiocy purpose made for enabling tyrants seems like a 18-inch putt.
Why is everyone acting like the question is settled?
"With real issues to address, the Firearms Freedom Act is nothing more than an idle distraction."--- Thankyou, Ed, thankyou! I want to send you one of those funny thankyou cards that, when you open it up, it starts singing, "Thankyou, thankyou, thankyou!" over and over again. Don't let folks fall for strawmen and false issues, and don't EVER trust a politician!!! I know that there was an honest one once upon a time, but who knows who he was?
Mr. Stone is correct in his list of precedent cases in the federal courts, but fails to see beyond those.
We're taking this power away from the US government. We don't care if they rule against us, we shall ignore those rulings.
We shall demand our state governments protect citizens within the respective states, including against armed federal agents who attempt to arrest those of us practicing lawful activities under the several Firearms Freedom Acts.
It is well past time to overturn the grotesquely unconstitutional Wickard vs. Filburn case and subsequent cases based on it.
I would argue that since the 2nd Amendment has been determined to protect an enumerated individual right (Heller) and that the possession of marijuana, even though may be it should be, has not been determined to be a fundamental right and is assuredly not an enumerated right specifically protected by amendment to the Constitution . Gonzales v Raich is, post Heller, irrelevant to the present discussion.
I submit that the 2nd amendment trumps the commerce clause as it, along with the other nine amendments in the Bill of Rights, was very likely intended to do by the folks who insisted upon and ratified a bill of rights back in 1787-91. The Anti-federalists and other concerned citizens saw in the body of the 1787 Constitution several areas that they foresaw would place following generations of Americans in danger of despotism and tyranny. The 1st ten amendments were INTENDED to change, alter, correct, rectify, and/or improve the original version of the Constitution.
[W-III]
Gee Ed, you can extrapolate your statement about failure to the entire country. NAFTA/GATT destroyed mfg, repeal of GLAS STEAGALL , porous borders, fiat currency, little owl hiding on the corner of $1 bill, eye of Satan on a pyramid, theft of trillions by Goldman Sachs, JP Morgan Chase, illegal wars for profit in Iraq, Afghanistan, Pakistan, Yemen, communist department of "homeland" security, TSA/courthouse body scanners, fluoride pumped into municipal water, demolition of World Trade Center Complex blamed on men in caves, Nick Rockefeller revelation of plan to microchip all citizens, destroy Constitution and set up world government, Zionist strangle hold over media, banking, Congress, Monsanto gmo poison of food. Yeah Ed, not only is Montana run by a group of corrupt politicians, the entire USA has past the tipping point. How much longer will citizens hold on to their firearms and not make citizen arrests on tyrants? I got this plan u know..
The Raich v. Gonzalez case was right on marijuana in that the commodity could not be identified produced from California when it ends up in Nevada. Therefor, the commerce clause applied. With a gun it is different,in that, it can have marks that can be lasered on all the parts which will specify its origin thus not violating the commerce clause if keep in the state of manufacture. An example would be: Made in Montana, not to be removed from the state of Montana or you will violate other state and federal law. I read that is the challenge with the gun issue in that it can be an identified commodity.
You do realize that the purpose of the Supreme Court is to overturn unjust precedent, right?
LouisCipher777 - The supreme court still is supposed to follow precedent set forth both other supreme court cases. The principle is called Stare decisis.
They are trying to pass a similar law in Utah and even the conservative state legislature has acknowledged that the law is highly likely to be unconstitutional.
le.utah.gov/~2010/bills/sbillint/sb0011.htm
The link above is the bill that is going through the Utah State Legislature. If you read the Legislative Review Note at the bottom it clearly lays out why they feel this bill is unconstitutional. And this is coming from a VERY conservative state. (I would post it but it is longer than the character limit.)
It's refreshing to read the comments of a gun rights supporter who views these Firearms Freedoms Acts objectively. I agree that "posturing" is the best description I've read of the behavior of State legislators who have enacted this measure. Assuming they are reasonably intelligent and educated, how else can you describe their actions ignoring legal precedent on what Congress may regulate as interstate commerce or ignoring that many of the Federal laws they challenge are based on Congress' authority to tax. Of course, Congress' power to tax is separte and apart from its authority over interstate commerce. If these legislators seriously believed in the bills they supported, they need a refresher couse in basic constitutional law.
The second Amendment says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Therefore all gun laws are illegal.
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