View Full Version : Don't know where this belongs, but seems Texas is tired of "Uncle Sam" too!
I don't rememebr which state started this trend (Montana or Wyoming), but Texas is believed to pass this tomorrow:
81R9687 DAK-F
By: Berman H.B. No. 1863
A BILL TO BE ENTITLED
AN ACT
relating to exempting the intrastate manufacture of a firearm, a
firearm accessory, or ammunition from federal regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. FINDINGS. (a) The Legislature of the State of
Texas makes findings as stated in this section.
(b) The Tenth Amendment to the United States Constitution
guarantees to the states and their people all powers not granted to
the federal government elsewhere in the constitution and reserves
to the state and people of Texas certain powers as they were
understood at the time that Texas was admitted to statehood in 1845.
The guaranty of those powers is a matter of contract between the
state and people of Texas and the United States dating from the time
Texas became a state.
(c) The Ninth Amendment to the United States Constitution
guarantees to the people rights not granted in the constitution and
reserves to the people of Texas certain rights as they were
understood at the time that Texas became a state. The guaranty of
those rights is a matter of contract between the state and people of
Texas and the United States dating from the time Texas became a
state.
(d) The regulation of intrastate commerce is vested in the
states under the Ninth and Tenth Amendments to the United States
Constitution if not expressly preempted by federal law. The United
States Congress has not expressly preempted state regulation of
intrastate commerce relating to the manufacture on an intrastate
basis of firearms, firearms accessories, and ammunition.
(e) The Second Amendment to the United States Constitution
reserves to the people the right to keep and bear arms as that right
was understood at the time that Texas became a state, and the
guaranty of the right is a matter of contract between the state and
people of Texas and the United States dating from the time Texas
became a state.
(f) Section 23, Article I, Texas Constitution, clearly
secures to Texas citizens the right to keep and bear arms. This
constitutional protection is unchanged from the date the
constitution was adopted in 1876.
SECTION 2. DECLARATION. The Legislature of the State of
Texas declares that a firearm, a firearm accessory, or ammunition
manufactured in Texas, as described by Chapter 2003, Business &
Commerce Code, as added by this Act, that remains within the borders
of Texas:
(1) has not traveled in interstate commerce; and
(2) is not subject to federal law or federal
regulation, including registration, under the authority of the
United States Congress to regulate interstate commerce.
SECTION 3. Title 99, Business & Commerce Code, is amended by
adding Chapter 2003 to read as follows:
CHAPTER 2003. INTRASTATE MANUFACTURE OF A FIREARM, A FIREARM
ACCESSORY, OR AMMUNITION
Sec. 2003.001. DEFINITIONS. In this chapter:
(1) "Firearm accessory" means an item that is used in
conjunction with or mounted on a firearm but is not essential to the
basic function of a firearm. The term includes a telescopic or
laser sight, magazine, flash or sound suppressor, folding or
aftermarket stock and grip, speedloader, ammunition carrier, and
light for target illumination.
(2) "Generic and insignificant part" means an item
that has manufacturing or consumer product applications other than
inclusion in a firearm, a firearm accessory, or ammunition. The
term includes a spring, screw, nut, and pin.
(3) "Manufacture" includes forging, casting,
machining, or another process for working a material.
Sec. 2003.002. MEANING OF MANUFACTURED IN THIS STATE. (a)
For the purposes of this chapter, a firearm, a firearm accessory, or
ammunition is manufactured in this state if the item is
manufactured:
(1) in this state from basic materials; and
(2) without the inclusion of any part imported from
another state other than a generic and insignificant part.
(b) For the purposes of this chapter, a firearm is
manufactured in this state if it is manufactured as described by
Subsection (a) without regard to whether a firearm accessory
imported into this state from another state is attached to or used
in conjunction with it.
Sec. 2003.003. NOT SUBJECT TO FEDERAL REGULATION. (a) A
firearm, a firearm accessory, or ammunition that is manufactured in
this state and remains in this state is not subject to federal law
or federal regulation, including registration, under the authority
of the United States Congress to regulate interstate commerce.
(b) A basic material from which a firearm, a firearm
accessory, or ammunition is manufactured in this state, including
unmachined steel and unshaped wood, is not a firearm, a firearm
accessory, or ammunition and is not subject to federal regulation
under the authority of the United States Congress to regulate
interstate commerce as if it actually were a firearm, a firearm
accessory, or ammunition.
Sec. 2003.004. EXCEPTIONS. This chapter does not apply to:
(1) a firearm that cannot be carried and used by one
person;
(2) a firearm that has a bore diameter greater than 1.5
inches and that uses smokeless powder and not black powder as a
propellant;
(3) ammunition with a projectile that explodes using
an explosion of chemical energy after the projectile leaves the
firearm; or
(4) a firearm that discharges two or more projectiles
with one activation of the trigger or other firing device.
Sec. 2003.005. MARKETING OF FIREARMS. A firearm manufactured
and sold in this state must have the words "Made in Texas" clearly
stamped on a central metallic part, such as the receiver or frame.
Sec. 2003.006. ATTORNEY GENERAL. (a) The attorney general
shall defend a citizen of this state whom the federal government
attempts to prosecute, claiming the power to regulate interstate
commerce, for violation of a federal law concerning the
manufacture, sale, transfer, or possession of a firearm, a firearm
accessory, or ammunition manufactured and retained in this state.
(b) On written notification to the attorney general by a
citizen of the citizen's intent to manufacture a firearm, a firearm
accessory, or ammunition to which this chapter applies, the
attorney general shall seek a declaratory judgment from a federal
district court in this state that this chapter is consistent with
the United States Constitution.
SECTION 4. This Act applies only to a firearm, a firearm
accessory, as that term is defined by Section 2003.001, Business &
Commerce Code, as added by this Act, and ammunition that is
manufactured on or after the effective date of this Act.
SECTION 5. This Act takes effect September 1, 2009.
Got a dealer holding onto a 11.5" 1/7 twist for me... was going to get a tax stamp under a trust... might just have to finish my own receiver now ;)
Mr.Goodtimes
05-06-09, 04:20
so, to get this correct, this bill makes Suppressors and SBR's items that no longer need to be registered with the federal .gov if made in those states?
Jay Cunningham
05-06-09, 04:22
Moved to GD.
so, to get this correct, this bill makes Suppressors and SBR's items that no longer need to be registered with the federal .gov if made in those states?
As far as what ive read on this and the one that montanna is passing, the ones made in the state have to be stamped "made in Texas" (or whatever state its made in) and since its a product of that state its not subject to federal registration or laws. Now if it comes out of that state its subject to federal legislation unless more states start advocating this and accept other states guns to be okay. But yes, the gun makers in that state dont have to register their guns with the BATFE, under this bill of course. This is gonna be an exeptional test of the whole state's sovereignty. This will show us how far the gov. wants to go to limit our 2A rights. And to what illegallitys they will go. We ALL need to follow this and the montanna bill to see where it goes.
losbronces
05-06-09, 10:45
As far as what ive read on this and the one that montanna is passing, the ones made in the state have to be stamped "made in Texas" (or whatever state its made in) and since its a product of that state its not subject to federal registration or laws. Now if it comes out of that state its subject to federal legislation unless more states start advocating this and accept other states guns to be okay. But yes, the gun makers in that state dont have to register their guns with the BATFE, under this bill of course. This is gonna be an exeptional test of the whole state's sovereignty. This will show us how far the gov. wants to go to limit our 2A rights. And to what illegallitys they will go. We ALL need to follow this and the montanna bill to see where it goes.
I think Texas has a better shot at this working though. They have (or used to have) production of everything required to fabricate a firearm within the state's boundaries. Montana clearly does not have this type of industrial and resource capacity.
This situation may get into the area of international treaties rather than interstate commerce at some point.
Maybe I'm being naive, but if under current BATF guidelines I have to stamp a SBR build because I'm the "manufacturer". Why would the same not be the case if this passes?
"Made in Texas" added to the stamp as it is manufactured in Texas by "me", according to the Feds, the "manufacturer"...
Maybe I'm being naive, but if under current BATF guidelines I have to stamp a SBR build because I'm the "manufacturer". Why would the same not be the case if this passes?
"Made in Texas" added to the stamp as it is manufactured in Texas by "me", according to the Feds, the "manufacturer"...
not exactly sure what you're asking, but if the weapon is made in texas and doesnt leave texas, it's not subject to ANY federal laws.
Basically sounded like someone above was saying that the components would have to be made in Texas. Whereas I was saying whomever put the weapon together would be the manufacturer, there by the weapon being "made" in Texas.
Guess I had too many thoughts in my head to be clear... hell, still not clear!
CaptainDooley
05-06-09, 11:16
I'm with Zeus... does "made in Texas" mean the same thing as it currently does with an SBR - in that if I engrave the lower have I "made it in Texas"? Could I take say a BCM 16" upper and have the barrel cut down by someone in Texas - and therefore have "made the SBR in Texas"?
I think if this passes it will cause quite a bit of headache/confusion until someone winds up being a test case and some court or another makes a ruling on the interpretation...
Basically sounded like someone above was saying that the components would have to be made in Texas. Whereas I was saying whomever put the weapon together would be the manufacturer, there by the weapon being "made" in Texas.
Guess I had too many thoughts in my head to be clear... hell, still not clear!
no, the manufacturer is whoever machines/stamps/welds/etc the receiver. only the receiver is the "gun."
I'm with Zeus... does "made in Texas" mean the same thing as it currently does with an SBR - in that if I engrave the lower have I "made it in Texas"? Could I take say a BCM 16" upper and have the barrel cut down by someone in Texas - and therefore have "made the SBR in Texas"?
I think if this passes it will cause quite a bit of headache/confusion until someone winds up being a test case and some court or another makes a ruling on the interpretation...
well, following the laws as we know them today, that's exactly what you could do.
If that's not what I said, it's damn sure what I meant!
If that's not what I said, it's damn sure what I meant!
ah, you're saying basically the same thing as the other guy-
whoever mills the receiver becomes the manufacturer. now the receiver is manufactured, now we can order whatever we want for it and make it whatever we want... SBR, select fire, 203 maybe?
the texas state legislature will decide what you can do after that.
suppressors can still be molested by the BATFE, if they're manufacturered out of state. i'm sure they'd quickly jump on all these DIASs and FA FCG parts you can supposedly order over the internet, too. might even put some kind of tax stamp requirement right onto a short barrel. or maybe they'd just see the bullshit futility and back off.
ah, you're saying basically the same thing as the other guy-
whoever mills the receiver becomes the manufacturer. now the receiver is manufactured, now we can order whatever we want for it and make it whatever we want... SBR, select fire, 203 maybe?
the texas state legislature will decide what you can do after that.
suppressors can still be molested by the BATFE, if they're manufacturered out of state. i'm sure they'd quickly jump on all these DIASs and FA FCG parts you can supposedly order over the internet, too. might even put some kind of tax stamp requirement right onto a short barrel. or maybe they'd just see the bullshit futility and back off.
If you read the bill above it specifically states:
Sec. 2003.004. EXCEPTIONS. This chapter does not apply to:
(1) a firearm that cannot be carried and used by one
person;
(2) a firearm that has a bore diameter greater than 1.5
inches and that uses smokeless powder and not black powder as a
propellant;
(3) ammunition with a projectile that explodes using
an explosion of chemical energy after the projectile leaves the
firearm; or
(4) a firearm that discharges two or more projectiles
with one activation of the trigger or other firing device.
oh, guess i didnt read that far. lame.
At least it's a step in the right direction... and far better than now!
Esp if Oh-Satan and friends get their way with ammo... hear banning reloading will be a primary focus. "Hear" meaning I work for an Elected Official, and "hear things".
NinjaMedic
05-06-09, 12:42
I can wait to see my new Larue Stealth Supressor! lol
Remember, the only way they(the Feds) can get away w. infringing the 2A is via interstate commerce. Its a BS endrun around our rights but that what it is
As soon as you take an item out of Interstate Commerce, be it a can or SBR made inside a given state the Feds cant do anything because it doesnt effect interstate commerce so they cant touch it
Im sure they try and Id hate to be the first to get busted unless i had a LOT of money a a good lawyer, heck, maybe the state will defend them?
Montana is trying to do something similar.
Montana is trying to do something similar.
IIRC they were the first and its already passed and been signed by their governor :D
Jim from Houston
05-06-09, 13:11
I'll preface this by saying that I'm a huge supporter of the 2nd Amendment, and that I don't think there should even be federal gun laws...if the NFA were repealed tomorrow, I'd be thrilled...
All that being said, this proposal, along with the one in Montana, is based on an extremely flawed understanding of Commerce Clause jurisprudence...
It is much more difficult to "remove" an item from interstate commerce than you would think...
In a case called Wickard v. Filburn 317 U.S. 111 (1942) the Supreme Court ruled that even crops grown at home for home consumption, that are never even SOLD much less moved in interstate commerce could be regulated by the federal government, because home produced items still "compete" in the market with items that do move in interstate commerce (i.e. because you grew it at home, you didn't buy it, thus you impacted interstate commerce). This sounds nuts, but is still a valid interpretation of the Commerce Clause according to the Supreme Court, who relied on this reasoning as recently as 2005 in Gonzales v. Raich 545 U.S. 1 (2005) which was a medical marijuana case.
If you grow marijuana at home, for your personal medical use, in a state where medical marijuana is legal, can the DEA still bust you? You bet your ass they can!
To make a long story short...do NOT volunteer to be the guy who gets to test out any of these new laws...if you violate the NFA and the ATF arrests you, they won't care about what the State of Texas says, and neither will the U.S. Attorney who prosecutes you, or the federal judge who provides the all-expenses paid vacation.
And Id say that was a horribly flawed use of 'interstate commerce' and one the judge didnt seem to understand
Jim from Houston
05-06-09, 13:29
It's an incredibly stupid interpretation of interstate commerce. The bummer is:
1. It's been held valid by the Supreme Court within the last 4 years
2. Think any of Obama's appointments to the Supreme Court are going to change that state of affairs anytime soon?
DMedicIraq
05-06-09, 13:41
Wickard v. Filburn has been mentioned in relation to these proposed changes in Texas and Montana a few times that I've seen now, but I haven't seen much discussion of United States v. Lopez (1995).
The ruling by the Supreme Court, which pretty much called BS on Congress using the Commerce Clause as a blank check to regulate whatever they want, seems like it might be part of what is motivating lawmakers in Texas and Montana to reassert themselves.
United States v. Lopez started up when Lopez, a 12th grade student brought a loaded and hidden firearm into his high school. He was arrested in charged under Texas law, but was then instead charged by Federal agents for violation of the Gun-Free School Zones Act of 1990. The District Court denied his motion to dismiss but the Fifth Circut Court reversed the decision and held that the Act exceeded Congress' power under the Commerce Clause and as such was unconsitituional. The Supreme Court agreed.
The Holding and Rule from the Supreme Court, as well as both the concurring and disenting opinions are interesting to read, especially in this light, because it touches on firearms, interstate commerce as regulated by the Commerce Clause and the debate over federal/state boundries of same.
An interesting quote from the Court of Appeals:
Neither in Maryland v. Wirtz nor in Wickard v. Filburn has the [Supreme] Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation....Indeed, it could not be otherwise as the chain of causation is virtually infinite, and hence there is no private activity, no matter how local and insignificant, the ripple effect from which is not in some theoretical measure ultimately felt beyond the borders of the state in which it took place."
The main questions raise by the Supreme Court were what would prevent the federal government from regulating anything that might lead to crime, regardless of its connection to interstate commerce, because it had a social cost? What would prevent Congress from regulating any activity that might bear on a person's economic productivity?
Food for thought
Jim from Houston
05-06-09, 13:59
Bear in mind that Gonzales v. Raich was decided ten years after United States v. Lopez and five years after United States v. Morrison 529 U.S. 598 (2000) which is another case relevant to this sort of reasoning, and clarified those two earlier cases.
Scalia, who voted that the laws in Lopez and Morrison were examples of Commerce Clause over-reach, held that the federal drug laws were ok uses of the Commerce Clause in Raich. His reasoning was that, while the laws in Lopez and Morrison had not even a minor relationship with commerce (one of them banned guns in schools, the other involved a federal "violence against women" act) the case in Raich was different, because marijuana is, quite clearly, something that you buy and sell...
In other words, you can't use the Commerce Clause to regulate CONDUCT, such as taking a gun to school, or attacking a woman, but you CAN use the commerce clause to regulate the production of a product that can be bought and sold.
Weapons are clearly a product that can be bought and sold, thus Gonzales v. Raich seems a more relevant precedent than Lopez or Morrison.
Which is unfortunate, but it is what it is.
As I've said before, I don't think these cases will win, or go they way we want them to. Firstly, I worry about dicta indicating that an AWB is kosher and secondly, I worry about how the outcome of the case would affect incorporation of the 2a.
These are real concerns because these cases are serious longshots. They are betting on one very narrow issue in Raich, and that is the fact that CA pot could not be distinguished in any way from pot grown elsewhere. With guns, we can stamp "Made in Texas" or "Made in Montana" on them, but is that really sufficient?
Either way, I suppose we will find out sooner or later...
I know nothing about case law like you guys do. However, I do on occasion rub shoulders with the guys who make the laws. I think people are being too analytical, and not seeing the underlying point to all the things the States are doing right now. Sure it seems juvenile/misguided on the surface. However, they are looking for a "reason". Lines are being drawn in the sand. The hush talk is about "poking" and "prodding" a desired response. 2A seems only to be the most direct path to a desired result... a vast majority of State's in revolution of sorts, that will be decided not with swords and shields, but with politics and lawyers. I'm just afraid that the 2A is becoming the sacrificial lamb. Looks good on the front end, but where will it end up? Might have rubbed some shoulders...
IIRC, Something the feds are saying is "If ALL the material for the gun wasn't mined in said state, and completed in said state, then it was not 100% from said state". Therefore any micro particle of any product that originally didn't come from that state could be controlled. If you grew your own "garden" you would have to prove that the seed came from your state, and not another, or it would be interstate commerce.
I'm no lawyer, but that was my humble understanding. But like the wife say's, I never understand, correctly or otherwise.
IIRC, Something the feds are saying is "If ALL the material for the gun wasn't mined in said state, and completed in said state, then it was not 100% from said state". Therefore any micro particle of any product that originally didn't come from that state could be controlled. If you grew your own "garden" you would have to prove that the seed came from your state, and not another, or it would be interstate commerce.
I'm no lawyer, but that was my humble understanding. But like the wife say's, I never understand, correctly or otherwise.
whatever happened to "original intent?"
Jim from Houston
05-07-09, 01:10
whatever happened to "original intent?"
3 Words: Franklin Delano Roosevelt
Between 1933 and 1945, the form of government envisioned by Jefferson and Madison was fundamentally changed...we're still dealing with the after-effects. Unfortunately, I think that the present "Obama period" will take a similar place in history when future generations will look back upon another period of fundamental change in the nature of American government...
3 Words: Franklin Delano Roosevelt
Between 1933 and 1945, the form of government envisioned by Jefferson and Madison was fundamentally changed...we're still dealing with the after-effects. Unfortunately, I think that the present "Obama period" will take a similar place in history when future generations will look back upon another period of fundamental change in the nature of American government...
The way it looks now, not a change for the better either. I will support Texas in this but i do agree that it is a long shot, however, what kinda of law that aims to set this country back to more of a Republic isnt a long shot these days? Im just waiting for things to boil over and the crap to hit the fan. How soon do you think Texas will secede?! Theyd be the first to do it if it came to that. How much more time? Another year? Another 6 months? Or sooner? Scary stuff i tell ya.:(
As much as Texans like to pull that "card". I can't see Texas ever really trying to secede. There is too much on the table to just push back and walk away (we do have more pissed off gun toters than the entire US military several fold... also have the largest US base staffed in majority, by Texans). It's just not good business... divided we fall. Like I alluded to earlier, Civil war is coming again. However, this one will be fought with Politicians and Lawyers. Hell, for anyone paying attention, "war" has already been declared by the majority of the States... last I counted 37 States had either passed bills restating/claiming their Sovereignty, or have them in motion.
I have to agree with Jim from Houston... just hope this time it goes back the "right" way...
Mr.Goodtimes
05-07-09, 13:13
honestly, i can see states succeeding. It happened once before, it can happen again. there was a lot to lose the first time states succeeded.
I can see states succeeding. The federal gov. is greatly overstepping its limits, and, if we dont do something about it, were all doomed. As was pointed out earlier, United We Stand, Divided We Fall.
I think that America is falling, and def becoming divided, and pretty quickly too. I think that a stronger America would emerge from the rubble of whatever may happen.
LittleRedToyota
05-07-09, 13:19
All that being said, this proposal, along with the one in Montana, is based on an extremely flawed understanding of Commerce Clause jurisprudence...
i would, unfortunately, have to agree.
of course, the truth is that commerce clause jurisprudence is itself based on intellectual dishonesty.
so, personally, i love seeing this battle shaping up...can't wait for the sparks to start flying.
LittleRedToyota
05-07-09, 13:23
whatever happened to "original intent?"
or even "what the words actually say"...
"commerce among the several states" does not equal or include "matters effecting interstate commerce".
epic and ongoing failure on the part of SCOTUS.
LittleRedToyota
05-07-09, 13:32
3 Words: Franklin Delano Roosevelt
started even before that.
louis brandeis and the "brandeis brief" in muller v. oregon...
brandeis did a lot of good things, but he (with the agreement of the justices involved in that case) derailed the judicial branch and fundamentally broke the system of government outlined in the constitution...and we have never recovered.
Lot of what seems to be real sharp people in here... and most the boards I frequent. The kind of people who CAN effect change if they'd get together... there will be change in this country, but only when those people decide they've had enough, and are willing to act...
I still believe the impending civil "war" will be fought with not weapons of destruction, but with pens/briefs/bills/legislation. Sure some amount of physical posturing is inevitable, but I can't ever see brother fighting against brother again in this Country. We've been there, done that, and reaped the fallacy of it. "We the People" should only have to stand up to the VERY few (in comparison) on Capitol Hill. I'm really not being naive...
TangoChaser
05-08-09, 16:05
Posted by losbronces:
I think Texas has a better shot at this working though. They have (or used to have) production of everything required to fabricate a firearm within the state's boundaries. Montana clearly does not have this type of industrial and resource capacity.
Montana has a number of gun manufacturers in state. Shiloh Sharps is one and there a couple AR15 lower manufacturers as well.
Bags packed, but which state? :D
this always turns into a friendly pissing match over case law and consitutional interpretation, but it's really not that complicated.
the fact of the matter is, congress has way over stepped their bounds with laws that affect private citizens. the constitution expressly forbade congress from doing this, and it doesn't matter what case-law exists- someday, SCOTUS just might open their stupid ****in eyes and revolutionize this country. it's not going to happen until states challenge the feds. that's finally happening, seemingly en mass, with more states to join, i'm sure.
praise God.
this always turns into a friendly pissing match over case law and consitutional interpretation, but it's really not that complicated.
the fact of the matter is, congress has way over stepped their bounds with laws that affect private citizens. the constitution expressly forbade congress from doing this, and it doesn't matter what case-law exists- someday, SCOTUS just might open their stupid ****in eyes and revolutionize this country. it's not going to happen until states challenge the feds. that's finally happening, seemingly en mass, with more states to join, i'm sure.
praise God.
Amen man, you may or may not be a man of God, but you and me and the rest of ya need to pray for this country cause reps and senators cant fix it alone. We can challenge the gov. all we want but until we have God on our side, we CANT do it. IMHO and beliefs
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