View Full Version : Montana thumbs their nose at the ATF. HB 246 (MT made firearms) headed to Gov's Desk
variablebinary
04-07-09, 00:16
Montana bill HB 246 assed through both the House and Senate and is now awaiting Governor Schweitzer's signature. The general consensus by the author of the Bill and others I have spoken to is that he will sign it.
As for the strategy of getting this to court without someone being arrested;
According to Gary Marbut, the Bill's author, "we plan to find a 'squeaky clean' Montanan who wants to send a note to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives threatening to build and sell about 20 such rifles [single shot .22lr rifles] without federal dealership licensing. If the ATF tells them it’s illegal, they will then file a lawsuit in federal court — with any luck triggering a legal battle that lands in the nation’s highest court."
As for the legal battle, consider this statement from the attorney who argued the Gonzalez v. Raich case which is current precedent for enforcing federal law that is more restrictive than state law;
In the Gonzalez v. Raich case [...] the court said that because marijuana produced within and outside of California is essentially indistinguishable, the government must regulate both to enforce national drug laws. Montana, though, could potentially argue that its guns are sufficiently unique and segregated as to lie outside of overarching federal regulatory schemes, Barnett said.
Now all Montana needs to do is enforce trespass laws against federal agents and ohboy!
:o
I really like the idea and appreciate the sentiment, but the SCOTUS is going to use the commerce clause to shove it sideways up their ass.
Did you actually read what this was about before you opined? It specifically refers to weapons manufactured within Montana that stay inside the state, thus making the applicability of the commerce clause null and void.
Here's the link.
http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm
I really like the idea and appreciate the sentiment, but the SCOTUS is going to use the commerce clause to shove it sideways up their ass.
Time to "carpetbag" to Montana! Them folks got BALLS! YEEEEHAWWW!
faithmyeyes
04-07-09, 10:26
Time to "carpetbag" to Montana! Them folks got BALLS! YEEEEHAWWW!
Yeah, they do. Cold, dry balls.
Did you actually read what this was about before you opined? It specifically refers to weapons manufactured within Montana that stay inside the state, thus making the applicability of the commerce clause null and void.
Except there are long-standing SCOTUS decisions that say otherwise.
Did all of the parts originate within MT?
Did all the raw materials for all the parts come from MT?
Could the production, possession, and/or sale of this firearm reduce the number of non-MT-made firearms sold in MT?
Etc.
The Commerce Clause has become a blank check for Congress to control almost anything it wants. It's ridiculous, but it's the law.
montanadave
04-07-09, 10:36
Yeah, they do. Cold, dry balls.
Just curious. What's your source of information regarding the temperature and humidity of my balls?
Todd,
Thanks for the additional clarification. I was simply commenting on the face value of the whole thing and its intent. As to the additional things that you have pointed out. If you thought about them as issues, then why haven't they?
Except there are long-standing SCOTUS decisions that say otherwise.
Did all of the parts originate within MT?
Did all the raw materials for all the parts come from MT?
Could the production, possession, and/or sale of this firearm reduce the number of non-MT-made firearms sold in MT?
Etc.
The Commerce Clause has become a blank check for Congress to control almost anything it wants. It's ridiculous, but it's the law.
Todd,
Thanks for the additional clarification. I was simply commenting on the face value of the whole thing and its intent. As to the additional things that you have pointed out. If you thought about them as issues, then why haven't they?
I certainly cannot speak for the legislators in MT. Maybe they didn't do their homework. Maybe they're fed up and don't care. Maybe they think this law will get SCOTUS to readdress the issue. Maybe they think they've found a loophole. Maybe, just maybe, they're politicians acting like politicians.
The bill calls upon the state Attorney General to defend anyone prosecuted under federal law for violating federal statutes, which to me sounds like an outright admission that they know the federal government isn't likely to agree with MT's interpretation of things. What will be interesting is to see how the Governor and AG handle this bill now that it's on the Gov's desk.
I'm teaching a class in MT next month. I expect this will be a topic of conversation, especially with some of the feds who'll be in the class. :cool:
montanadave
04-07-09, 10:58
Can't say I'm a big fan of this bill as it has little to do with guns and everything to do with initiating a protracted, expensive legal battle with the feds by a small group of state's rights advocates looking to the taxpayers of Montana to foot the bill for their political hobby horse. I'm all for people pounding their own drum but I shouldn't have to pay for the band.
"Firearms are inextricably linked to the history and culture of Montana, and I'd like to support that," said bill sponsor Rep. Joel Boniek, R-Livingston, during its House debate. "But I want to point out that the issue here is not about firearms. It's about state rights." (source: Billings Gazette, 4/6/2009)
For those that are interested, here's the link to the actual bill (HB 246, 2009 Montana legislative session): http://data.opi.mt.gov/bills/2009/billpdf/HB0246.pdf
I believe some of the previous questions regarding utilizing parts not manufactured in Montana, raw materials, etc. can be answered by reading the language of the bill. Noticeably lacking are any provisions for monitoring or enforcement.
I believe some of the previous questions regarding utilizing parts not manufactured in Montana, raw materials, etc. can be answered by reading the language of the bill.
My point was that the bill, by its own language, inadequately addresses the issue.
For example, the bill says that raw steel is not a firearm, firearm accessory, or ammunition and thus it cannot be regulated by the federal government the way a firearm, firearm accessory, or ammunition can be regulated. But that isn't the test used to determine Commerce Clause applicability. By explicitly stating that steel from out of state can be used, the bill all but declares itself void.
It's not just about whether the end product (or its finished components) move in interstate commerce. By using steel made in another state, for example, the manufacturing of the firearm in Montana clearly has a nexus to interstate trade and thus is controlled by federal laws & regulations about manufacture and distribution of firearms.
The funniest twist in all of this is BHO himself. He recently made comments to the effect that he didn't want the DEA cracking down on medical marijuana suppliers and users because he believes that is a states' rights issue with no meaningful interstate nexus. So, Mr. President, I wonder if you'll take that same pro-state approach with this MT bill. :cool:
fruitjacket
04-07-09, 11:49
Can't say I'm a big fan of this bill as it has little to do with guns and everything to do with initiating a protracted, expensive legal battle with the feds by a small group of state's rights advocates looking to the taxpayers of Montana to foot the bill for their political hobby horse. I'm all for people pounding their own drum but I shouldn't have to pay for the band.
"Firearms are inextricably linked to the history and culture of Montana, and I'd like to support that," said bill sponsor Rep. Joel Boniek, R-Livingston, during its House debate. "But I want to point out that the issue here is not about firearms. It's about state rights." (source: Billings Gazette, 4/6/2009)
For those that are interested, here's the link to the actual bill (HB 246, 2009 Montana legislative session): http://data.opi.mt.gov/bills/2009/billpdf/HB0246.pdf
I believe some of the previous questions regarding utilizing parts not manufactured in Montana, raw materials, etc. can be answered by reading the language of the bill. Noticeably lacking are any provisions for monitoring or enforcement.
I would think that any bill that restores States' rights away from the Federal Govt would be something we'd all support.
Except there are long-standing SCOTUS decisions that say otherwise.
Did all of the parts originate within MT?
Did all the raw materials for all the parts come from MT?
Could the production, possession, and/or sale of this firearm reduce the number of non-MT-made firearms sold in MT?
Etc.
The Commerce Clause has become a blank check for Congress to control almost anything it wants. It's ridiculous, but it's the law.
But it is UNLAWFUL and therefore null and void - if only the public were informed and properly motivated...
But like my comment above, they are going to lose IMO. Gonzales v. Raich was a 6-3 decision. So they have their work cut out for them. Personally I think they know this, and are doing it for political points and to make a statement.
Now that my opinion is out there. I believe you are correct, the Feds can't let one state out of the barn so of course they will squish this.
My thing is... The backlash against federal power is growing. Not just gun control, but federal bailouts for the states, numerous "mandate but don't fund" pronouncements. Where does it all lead?
how 'bout- "you know what? screw it- we tried to do it 'legally,' but now you give us no choice. no federal agents allowed on Montana soil for the purposes of detaining, arresting, or prosecuting Montana residents." when was the last time a state stood up for something other than POT?
exkc135driver
04-08-09, 02:03
This bill may or may not fly, but I like Montana's attitude. I just wish it wasn't so damn cold in the winter.
Like many of you mentioned, nothing may become of this and sure the Feds may squash this immediately, but this along with all of these 10th Amendment movements by states across the country gives me hope we the people are realizing the massive size of the Federal government and trying to do something about it!
- Brian
But it is UNLAWFUL and therefore null and void - if only the public were informed and properly motivated...
So while all three branches of the federal government believe it's lawful, you've determined that they're all wrong?
It's funny. If this was some kind of gun- or tactics-related issue and every single major trainer & team in the country agreed that one way was "right," people at M4C would shout down folks coming in with the "well I know better" attitude. But someone doesn't like the state of the legal system and it's fair game for any & all laymen. :cool:
how 'bout- "you know what? screw it- we tried to do it 'legally,' but now you give us no choice. no federal agents allowed on Montana soil for the purposes of detaining, arresting, or prosecuting Montana residents." when was the last time a state stood up for something other than POT?
There's a little matter of the Supremacy Clause. MT cannot simply ban federal agents or tell the federal government it's got no authority within the state. If that's the route they want to go, they would need to secede. I think we all know how that's gone in the past.
Like many of you mentioned, nothing may become of this and sure the Feds may squash this immediately, but this along with all of these 10th Amendment movements by states across the country gives me hope we the people are realizing the massive size of the Federal government and trying to do something about it!
Agree 100%. Hopefully, what MT is doing will at least be a warning bell for the folks in DC to realize that it's time to scale back the massive federal intrusion into states' rights.
exkc135driver
04-08-09, 14:25
But someone doesn't like the state of the legal system and it's fair game for any & all laymen. :cool:
'Twas ever thus. If I had a dollar for every layman (including not a few on this forum) who knew more about the law than everyone from the Supreme Court on down, and didn't mind telling me ... then instead of reading these posts I'd be sitting on the fantail of my 200' yacht watching scantily-clad women cavorting in the waters of the Greek islands ...
Except there are long-standing SCOTUS decisions that say otherwise.
Did all of the parts originate within MT?
Did all the raw materials for all the parts come from MT?
Could the production, possession, and/or sale of this firearm reduce the number of non-MT-made firearms sold in MT?
Etc.
The Commerce Clause has become a blank check for Congress to control almost anything it wants. It's ridiculous, but it's the law.
I agree 100% with Todd on this. The Commerce Clause and its application has been stretched to absurd lengths, but the government could argue successfully that federal firearms laws still apply even if the iron ore that was used to make the raw materials moved in interstate commerce.
It's absurd, but most courts would support this view and Montana is most likely wasting its time.
exkc135driver
04-08-09, 14:42
It's absurd, but most courts would support this view and Montana is most likely wasting its time.
And that, I think, is the problem many people have ... they say that "it" (whatever "it" may be in a particular situation) is absurd, that the Framers did not mean "it" when they drafted the Constitution, and that "it" is therefore illegal. Uh, no. "It" may indeed be absurd. "It" may not be what [you think] the Framers meant. But "it" may well be perfectly legal.
So while all three branches of the federal government believe it's lawful, you've determined that they're all wrong?
It's funny. If this was some kind of gun- or tactics-related issue and every single major trainer & team in the country agreed that one way was "right," people at M4C would shout down folks coming in with the "well I know better" attitude. But someone doesn't like the state of the legal system and it's fair game for any & all laymen.
Argumentum ad populum Todd? That any number of people think something to be right, even if a super majority, makes it neither right nor legal. Government, our government in this day and age, is not concerned with the will of the people or with constitutional restraints. They are concerned with power and control. What is legal and what is right in the eyes of the government, is whatever the controlling party wants and has the power to enact. There was a time when legal and right were synonymous or at least right was a constitutive element of the legal. That is no longer true and hasn't been for a good long time.
Argumentum ad populum Todd? That any number of people think something to be right, even if a super majority, makes it neither right nor legal.
On the contrary, I said nothing about majorities and this most definitely is not ad populum. It's an appeal to authority, which is only fallacious if the appealed-to entity is not actually qualified. If nothing else, I'm quite confident saying that the Supremes are more qualified to discuss Constitutional interpretation than the average layman on M4C.
We can all lament about the way we think things used to be back in those utopian late-18th century towns, but that won't change long-established legal principles.
As I said, I think it's great Montana is doing this. But I realize that it's a political statement more than anything else, and will have no more effect than that. The first person who manufactures a firearm in MT based on this law will to go prison. MT can't dismiss Congress's Commerce Clause reach any more than California can let the Chinese Government quarter troops on state property.
If nothing else, I'm quite confident saying that the Supremes are more qualified to discuss Constitutional interpretation than the average layman on M4C.
Yes, it is their responsibility to interpret the Constitution. When they do so in an abominable fashion, you are correct that we mistake in saying it is un-Constitutional. We should, perhaps, just say it's unjust, or wrong.
We can all lament about the way we think things used to be back in those utopian late-18th century towns, but that won't change long-established legal principles.
On the contrary, sufficient people stand up and say BULLSHIT, it can, in fact, change long-established legal principles. One way or another. We may commit errors, sometimes, in looking to the past, but it is only because we believe we know a turd when we see one. And call it a turd. Nothing wrong, unamerican, or unethical about that, even if we might be sloppy in our precise semantics or error in our visions of distant times.
variablebinary
04-08-09, 21:58
Argumentum ad populum Todd? .
Not taking a jab at you, but I swear pseudo intellectual, superfluous use of Latin irks my gourd like you cant imagine.
exkc135driver
04-08-09, 22:05
Not taking a jab at you, but I swear pseudo intellectual, superfluous use of Latin irks my gourd like you cant imagine.
Not taking a jab at you either, but after seeing so many posts on this forum written by people who can't spell, who don't know the difference between "your" and "you're," who don't know the difference between the plural and the possessive, etc., ad infinitum* ... frankly, the Latin is a breath of fresh air.
* oh ... sorry. :D
On the contrary, I said nothing about majorities and this most definitely is not ad populum.
Not to argue too strongly but you did appeal to "all three" branches. But it doesn't matter.
It's an appeal to authority, which is only fallacious if the appealed-to entity is not actually qualified.
That's incorrect. Formally any appeal to authority is fallacious as the validity of any proposition is not dependent on the qualities of the source to which one makes the appeal. Informally the prop also fails to obtain since the certainty of it requires an infallible source. And in spite of what Obamassiah and the rest of the socialists might think, the state is not God.
Not taking a jab at you, but I swear pseudo intellectual, superfluous use of Latin irks my gourd like you cant imagine.
The term is common parlance in my world and hardly superfluous. Now German on the other hand.........
I'm happy to debate formal logic with you, it was my minor in college. :cool:
Not to argue too strongly but you did appeal to "all three" branches. But it doesn't matter.
Simply mentioning a number does not make something ad populum. Ad populum is specifically an appeal to the masses, along the lines of "everyone is doing it" or "four out of five surveyed say ..."
That's incorrect. Formally any appeal to authority is fallacious as the validity of any proposition is not dependent on the qualities of the source to which one makes the appeal.
That's incorrect. Formal logic doesn't force us to ignore subject matter experts!
From wikipedia (http://en.wikipedia.org/wiki/Appeal_to_authority): "There is no fallacy involved in simply arguing that the assertion made by an authority is true ..."
Or check out Fallacy Files (http://www.fallacyfiles.org/authorit.html) which, more correctly, refers to it as the fallacy of Appeal to Misleading Authority.
Or the Skeptic's Dictionary (http://skepdic.com/authorty.html): "The appeal to authority is a fallacy of irrelevance when the authority being cited is not really an authority. E.g., to appeal to Einstein to support a point in religion would be to make an irrelevant appeal to authority.
Informally the prop also fails to obtain since the certainty of it requires an infallible source. And in spite of what Obamassiah and the rest of the socialists might think, the state is not God.
Now you're just being funny. :D Those two sentences could keep a logician busy for days.
I'm happy to debate formal logic with you, it was my minor in college.
LOL. Is that an intentional appeal to authority? Perhaps you should have added a class or two in epistemology? :p
Simply mentioning a number does not make something ad populum. Ad populum is specifically an appeal to the masses, along the lines of "everyone is doing it" or "four out of five surveyed say ..."
If this was some kind of gun- or tactics-related issue and every single major trainer & team in the country agreed that one way was "right,"
Formally any appeal to authority is fallacious as the validity of any proposition is not dependent on the qualities of the source to which one makes the appeal.
That's incorrect. Formal logic doesn't force us to ignore subject matter experts! "There is no fallacy involved in simply arguing that the assertion made by an authority is true ..."
Heh. That’s right but you’re not paying attention. An appeal to authority can be used to lend legitimate support to an argument, (an expert witness in the courtroom for example) but it does not make, nor does it prove the argument to be true. That is a fallacy because, and let me repeat, "the validity of any proposition is not dependent on the qualities of the source to which one makes the appeal." That is text book Todd. The source is not infallible.
That ought to be clear enough since trial cases are rife with experts who disagree. Of course if one insists on the truth of an argument because "all the experts agree" as you did above for example, you're committing a form of the ad populum fallacy. The size of the group does not abrogate fallibility. Truth and credibility are not synonymous.
If you are only arguing for credibility then there is no problem. Certainty however, is another thing altogether. Now I don't see this going anywhere so the last work is yours.
Have a nice day.
This went OT bigtime......
Nathan_Bell
04-09-09, 19:16
This went OT bigtime......
It did drift, but it is not a total loss.
It demonstrates exactly why our laws are AFU. They have been crafted by lawyers: folks who find twisting and untwisting language a fun thing to do and argue about. Folks who play these games can and have find meanings in others' writings that the author did not put there.
Perfect example being the Commerce Clause. Which thanks to the stretching and general lawyering now covers every action you do. Including breathing, as the EPA has declared CO2 a pollutant. This was not what it was meant to be, but our finely educated lawyers have played the word games for more than a century twisting it to get it to our current situation.
Any time you want a reminder of how the system got broken; refer to this thread.
It did drift, but it is not a total loss.
It demonstrates exactly why our laws are AFU. They have been crafted by lawyers: folks who find twisting and untwisting language a fun thing to do and argue about
The problem is not that the law is crafted by lawyers, certainly the original constitution and bill of rights were not. The problem is that constitutional law is interpreted by a particularly arrogant group of lawyers (judges) whose creative "interpretations" are agenda driven. The constitution, which was meant to bind the hands of the gov't., is reinterpreted by wordsmiths in a way (almost exclusively these days) that strips the individual of his right to self determination and transfers that power to the state. (Heller was a rare decision and even that barely landed on the side of individual rights.)
The pen is and always will be mightier than the sword.
LittleRedToyota
04-10-09, 12:04
I'm happy to debate formal logic with you, it was my minor in college. :cool:
mine too...
and the law if identity says....
"shall not be infringed" = "shall not be infringed"
and the law of contradiction says...
"may be infringed" and "shall not be infringed" cannot simultaneously be true.
(and not even SCOTUS + congress + POTUS can change that.)
jes sayin'...
;)
03humpalot
04-10-09, 12:29
http://img16.imageshack.us/img16/9889/615pxflagofmontanasvg70tp4.png
That is all.
any news? gov sign? what up?
All,
As I am studying Constitutional Law at this moment, I'm relatively well versed with Commerce Clause powers. I figured I could be of some use to this debate, and give some background to the Commerce Clause.
1824: Gibbons v. Odgen: Justice Marshall establishes the seminal Commerce clause case. The line between what is 'commerce' and what is not commerce is drawn on two bases: Commerce (shipping, trade, etc.) and Pre-commerce (Manufacturing, Labor, mining, etc. [NOT Commerce and NOT subject to regulation]) , or 'Direct/Indirect' effects on commerce (Does the effect amount to a 'substantial effect?' Yes = Commerce, No = not commerce)
From 1824-1937, the majority of SCOTUS cases struck down Congressional statutes regulating labor, manufacturing and labor. See eg. Carter v. Carter Coal, Schecter (The Sick Chickens Case).
1937: Faced with Political pressure, and an executive bill to Pack 15 Justices in to the SCOTUS (aka the 'Court Packing Plan') the SCOTUS reverses itself in NLRB v. Jones & Laughlin Steel: The rationale for that case was, since Jones & Laughlin was a HUGE, NATIONAL company, it 'substantially affected commerce.'
This rationale is further supplemented in Wickard v. Filburn: Faced with a Wheat Glut, Congress imposed a Wheat Quota. This was upheld by the SCOTUS. The court reasoned that because ONE farmer disregarded Congressional quotas, the *aggregate* effect of all farmers disregarding the quota would come to have a substantial effect on commerce.
Thus, from 1937 until 1995, all Congressional statutes were approved on the idea that the aggregate effect of the prohibited act would somehow effect Commerce.
1995: U.S. v. Lopez: Struck down gun free school zones act. Guns and schools are too far apart from Commerce to support this act. (Test shifted from "Substantial effects on commerce" to "Economic activity substantially affecting commerce" [Notice the small distinction? Lopez whittled down Congressional power to only Economic Activity, instead of ANY activity that affected commerce.]
2000: U.S. v. Morrison: SCOTUS further reinforces Lopez by striking down the Violence Against Womens Act. Violence against women barely has anything to do with Commerce.
2005: Gonzalez v. Raich: Ugly head of the 'Aggregation' principle raises its head again. SCOTUS reasons that home grown Marijuana will, aggregated at a national level, substantially affect Commerce.
With that background in mind, it is unclear whether such a test case will win. All firearm production, taken at an aggregate level, may possibly 'substantially affect commerce.' Further, consider that, like Gonzalez, Congress already has a controlling scheme for regulating firearms (vs. Regulating drugs in Gonzalez). Finally, this is a test case for *selling* guns, an economic activity.
I really do NOT think this is an idea test case for independent state based firearm production--again, I may be wrong, as it is possible for more material facts to arise if this ever does go to trial.
This should be fun to watch.
........( Snip for brevity)......
As for the strategy of getting this to court without someone being arrested;
According to Gary Marbut, the Bill's author, "we plan to find a 'squeaky clean' Montanan who wants to send a note to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives threatening to build and sell about 20 such rifles [single shot .22lr rifles] without federal dealership licensing. If the ATF tells them it’s illegal, they will then file a lawsuit in federal court — with any luck triggering a legal battle that lands in the nation’s highest court."
As for the legal battle, consider this statement from the attorney who argued the Gonzalez v. Raich case which is current precedent for enforcing federal law that is more restrictive than state law;
.......( Snip for brevity)........
.......Montana, though, could potentially argue that its guns are sufficiently unique and segregated as to lie outside of overarching federal regulatory schemes, Barnett said.
Sounds like a smart and gutsy plan. There are echos of the Heller case in that nobody breaks any laws. It also reminds me of the gun-grabber lawsuit campaigns in the 1980's and 1990's. Those campaigns were never about winning individual cases , the games were all about driving the firearms industry and the gun rights movement bankrupt.
Now it's our turn. This isn't about dollars , it's about political capital.
The gun-grabbers are running out of political capital already. Kick them when they're down.
:D
It's for the children.
:cool:
CleverNickname
04-20-09, 20:10
So which Montana resident is going to be the one to (potentially) take one for the team and commit what the feds will consider to be a felony in order to cause a test case?
So which Montana resident is going to be the one to (potentially) take one for the team and commit what the feds will consider to be a felony in order to cause a test case?
as stated about 3 inches above you, the idea isn't to get someone busted- it's to inform the ATF that he'll be manufacturing machineguns, and if the ATF says "no," they sue.
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