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| ALAN KORWIN COMMENTARY |
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Montana evokes the 10th Ammendment
"The Montana Firearms Freedom Act" HB246
Montana's new gun law kicks feds in the gut! In a nutshell: "Any gun made and kept in Montana is free of federal gun regulation." 
The following commentary is the sole opinion of Alan Korwin (pictured). We appreciate his depth and respect his ability. We thank Mr. Korwin for allowing the American Trigger Sports Network to present the following and hope to have him as a guest on the Trigger Sports LIVE! show. To read more of Mr. Korwin's publications, go to www.pagenine.org. Korwin..."I have followed the development of this law since the outset, I am friendly with its instigator Gary Marbut, president of the Montana Shooting Sports Assoc. www.mtssa.org (and we sell Gary's Montana gun-law book, which will be re-released in several weeks, updated and with the new law included). I was honored to coax and coach Gary into writing that book, now in its third edition www.gunlaws.com/books2.htm. Gary dreamed up the concept of the Montana gun-freedom bill, drafted the language himself ("that's why it's in plain English, I'm not a lawyer," he said) and guided it through his legislature to a 29 to 21 win in the Senate, and a stunning 85 to 14 romp in the House. It is a fabulous law. Imagine what it could do for economics in the state, wait, don't imagine, check this out -- Texas just introduced it too, where it could benefit more than 300 state-based manufacturers. It will, "invite new industry into Texas," according to its sponsor there, Leo Berman. That's not all. Tennessee has introduced it as well. Alaska moved it through the Senate 32 to 7 but adjourned before the House could act. States actively considering it include Arizona, Idaho, Louisiana, Missouri, Oklahoma, Utah, Washington and Wyoming. While some people got excited about virtually worthless feckless non-binding resolutions demanding 10th Amendment protection from federal abuse, this new law puts teeth into the demand. This is a perfect point of pushback against illegal federal encroachment and violation of our constitutional rights. You should pick this up where you are, like we are here in Arizona, get someone in your state to make the small changes needed to match the language to your state, and run with it. If the federales have their way, reaction would likely be directed against the first manufacturer to operate under the law. Feds will obtain a firearm produced in Montana, probably from a small shop without big time resources to fight the feds, and the person will be arrested, property confiscated, and charges filed with all sorts of laws that do not apply except in the feds imagination. But then of course they run the courts that will convict the person, and the courts, if precedent is any gauge, will deny constitutional defenses and work vigorously to do the bidding of their federal masters. It will be a 9th and 10th Amendment case, and a Commerce Clause case, and a Supremacy Clause case, not a Second Amendment case. However, the feds are unlikely to get their way so easily. We freedom types are pretty clever too, and little of this will happen without a plan. First, an effort is underway to find and temper any wildcat basement tool shop operators who ignorantly blast ahead making guns thinking they are immune to the federal hand. That will be good for the wildcats and for the proper movement of this important law. A test case will be developed, Gary says, most likely with a carefully designed bolt-action .22 caliber youth rifle. The wood stock will come from a Montana grown tree. Standard steel-supplier stock will turn into the basic barrel and parts, and the statute makes clear that interstate regulation (if any) of raw stock does not apply to the stock once it is in state and used strictly for intrastate purposes (a point the courts will examine). The people involved will have squeaky-clean records, including a Marine, tool makers with no FFL license to complicate things, and a youngster whose parents seek to get him the firearm. Clearance to make it will be sought from the proper authorities ahead of time. If it is granted (don't hold your breath) the deal is done. If it is not granted (a pretty sure bet), the parties will have grounds to sue in civil (not criminal) court. It's pretty complicated, but it's well thought out. In a conference call between Marbut and six top-level attorneys, it became obvious that the legal fight is an uphill battle, because the feds run the courts. To date, the federal judicial system has treated the 10th Amendment as a dead letter, and this from an attorney who has fought such cases from the lowest ranks to the Supreme Court itself. If the federal government wants something, it doesn't let a little thing like the Bill of Rights stand in its way. I know, it's infuriating, but that's the way it is. Now there's a political dimension to this as well. All the states are being abused and denied their rights under the 10th Amendment. The public is outraged at the lack of control on the federal behemoth. It's time for something to give. The Associated Press and USA Today have picked up on it, and FOX-TV's Glenn Beck is negotiating to get Marbut on the show. As more and more states get on the case, the pressure builds, and the ability of the system to resist a straightforward and righteous demand weakens. The Montana Firearms Freedom Act can be the straw that breaks the federal back. Once 10th Amendment hegemony is re-established, the floodgates of freedom are open. The feds and their lapdog lackies in the lamestream media are likely to refer to this action as an attempt at "illicit manufacture and trafficking in firearms," the words in the CIFTA treaty http://www.gunlaws.com/GunLawUpdate5-CIFTA.htm. The feds would love to raid a compound (an innocent owner's small tool shop), confiscate an arsenal (more than one firearm and some parts), and sick their legal dogs on the poor soul. They're not going to get such an easy shot. As many as five coordinated cases will be structured. My time has been consumed lately with a family medical issue, the bill below does a good job of describing what Montana has accomplished, and because it's in plain English, something I've always said can and should be done, it's readable. Take some time. Read it, you'll love it." Alan Korwin's Executive Summary The bill opens with the state's "Declarations of Authority." This basically asserts Montana's rights under the U.S. Constitution, Montana's contract upon entering the union, and principles of federalism. Very juicy and enjoyable. An easy-to-read set of definitions is followed by the core legal principle: "A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce." One legal landmine exists in the fact that firearms are regulated not only under the Commerce Clause, they are controlled by tax laws, and the outcome of that quagmire is uncertain. The legal protections are piled higher with this and similar wordings: "It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority..." To prevent side issues from interfering, full auto and large bore devices are excluded from this bill. Guns made under this law must be stamped "Made in Montana" and man oh man won't that be a thing of pride. The bill is easy reading, you should do it, then make sure your legislature gets on it. HOUSE BILL NO. 246 INTRODUCED BY J. BONIEK, BENNETT, BUTCHER, CURTISS, RANDALL, WARBURTON An act exempting from federal regulation under20the commerce clause of the Constitution of the United States a firearm, a firearm accessory, or ammunition manufactured and retained in Montana; and providing an applicability date. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Short title. [Sections 1 through 6] may be cited as the "Montana Firearms Freedom Act". Section 2. Legislative declarations of authority. The legislature declares that the authority for [sections 1 through 6] is the following: (1) The 10th 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 Montana certain powers as they were understood at the time that Montana was admitted to statehood in 1889. The guaranty of those powers is a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889. (2) The ninth amendment to the United States constitution guarantees to the people rights not granted in the constitution and reserves to the people of Montana certain rights, as they were understood at the time that Montana was admitted to statehood in 1889. The guaranty of those rights is a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889. (3) The regulation of intrastate commerce is vested in the states under the 9th and 10th amendments to the United States constitution, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition. (4) 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 Montana was admitted to statehood in 1889, and the guaranty of the right is a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889. (5) Article II, section 12, of the Montana constitution clearly secures to Montana citizens, and prohibits government interference with, the right of individual Montana citizens to keep and bear arms. This constitutional protection is unchanged from the 1889 Montana constitution, which was approved by congress and the people of Montana, and the right exists, as it was understood at the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889. Section 3. Definitions. As used in [sections 1 through 6], the following definitions apply: (1) "Borders of Montana" means the boundaries of Montana described in Article I, section 1, of the 1889 Montana constitution. (2) "Firearms accessories" means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and gr ips, speedloaders, ammunition carriers, and lights for target illumination. (3) "Generic and insignificant parts" includes but is not limited to springs, screws, nuts, and pins. (4) "Manufactured" means that a firearm, a firearm accessory, or ammunition has been created from basic materials for functional usefulness, including but not limited to forging, casting, machining, or other processes for working materials. Section 4. Prohibitions. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature t hat basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana. Section 5. Exceptions. [Section 4] 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 1/2 inches and that uses smokeless powder, 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. Section 6. Marketing of firearms. A firearm manufactured or sold in Montana under [sections 1 through 6] must have the words "Made in Montana" clearly stamped on a central metallic part, such as the receiver or frame. Section 7. Codification instruction. [Sections 1 through 6] are intended to be codified as an integral part of Title 30, and the provisions of Title 30 apply to [sections 1 through 6]. Section 8. Applicability. [This act] applies to firearms, firearms accessories, and ammunition that are manufactured, as defined in [section 3], and retained in Montana after October 1, 2009. Alan Korwin wrote his first book, The Arizona Gun Owner’s Guide, in 1989. It is now in its 23rd edition with more than 100,000 copies in print. He went on to write or co-write seven more books on gun laws, including state guides for California, Florida, Texas and Virginia, the unabridged federal guide Gun Laws of America, and his 11th, which debuted at the 2008 Gun Rights Policy Conference, The Heller Case: Gun Rights Affirmed! With his wife Cheryl, he operates Bloomfield Press, which has grown into the largest publisher and distributor of gun-law books in America. His website, gunlaws.com, features a National Directory to every gun law in the country and more than 160 books and DVDs for gun owners and the freedom movement. Alan’s blog, www.pagenine.org, is carried by dozens of paper and online outlets, and rumors about his political parody band, The Cartridge Family, cannot be confirmed. |