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Montana working on a BATF endrun
http://twincitiescarry.com/forum/viewtopic.php?f=45&t=11908		 Page 2 of 3
Author:  mrokern [ Tue May 05, 2009 8:54 am ]
Post subject: 
princewally wrote:
This will still leave the dealers and manufacturers in violation of federal law. The state won't have a problem, but the feds will. MT residents will buy guns in MT, be legal by MT law and get stomped on by the feds. Does the new law provide funds for the legal defense of MT residents in violation of federal law under the new MT law? That's a test case I'm not anxious to see.


Correct me if I'm wrong (and I'm sure somebody will round these parts), but don't most of the federal laws relating to firearms originally derive their power from the trade and commerce parts of the US Code?

-Mark
Author:  princewally [ Tue May 05, 2009 9:48 am ]
Post subject: 
mrokern wrote:
princewally wrote:
This will still leave the dealers and manufacturers in violation of federal law. The state won't have a problem, but the feds will. MT residents will buy guns in MT, be legal by MT law and get stomped on by the feds. Does the new law provide funds for the legal defense of MT residents in violation of federal law under the new MT law? That's a test case I'm not anxious to see.


Correct me if I'm wrong (and I'm sure somebody will round these parts), but don't most of the federal laws relating to firearms originally derive their power from the trade and commerce parts of the US Code?

-Mark


Yep. Firearms are regulated as part of interstate commerce, which is why your friendly neighborhood brick and mortar gun store has to comply with federal regulations. The gunstore down the street from my house is obviously interstate from me, as opposed to being not only INTRAstate, but intracity, as well.

The logic is this(I'm not making it up or guessing): If a farmer only sells at a local farmer's market to local customers living locally, he has to comply with federal regulations under the commerce clause, because, if he weren't there to sell the locally grown vegetable to local customers, they would be forced to buy from a larger distributor, who receives the produce from out of state sources. The local sale affects potential interstate sales, which pulls the local sale into interstate regulation.

If anything you do has an effect on anything interstate, in any way, no matter how small the effect, you can be federally regulated under the commerce clause.
Author:  Scott Hughes [ Tue May 05, 2009 10:21 am ]
Post subject: 
princewally wrote:
This will still leave the dealers and manufacturers in violation of federal law. The state won't have a problem, but the feds will. MT residents will buy guns in MT, be legal by MT law and get stomped on by the feds. Does the new law provide funds for the legal defense of MT residents in violation of federal law under the new MT law? That's a test case I'm not anxious to see.


I wonder if the State issues the license to an entity to mfg. for sale strictly in that State, who is culpable to the Feds (and their rath), the State, the mfg., or both :?:
Author:  Jeremiah [ Tue May 05, 2009 10:52 am ]
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My money's on all of the above- the State granting a license doesn't remove the obligation of the business owner to comply with Federal law...
Author:  thePKOR [ Tue May 05, 2009 11:59 am ]
Post subject: 
princewally wrote:
If a farmer only sells at a local farmer's market to local customers living locally, he has to comply with federal regulations under the commerce clause, because, if he weren't there to sell the locally grown vegetable to local customers, they would be forced to buy from a larger distributor, who receives the produce from out of state sources. The local sale affects potential interstate sales, which pulls the local sale into interstate regulation.


Not only that - but if a farmer grows wheat for his own consumption it is subject to federal regulation since he would otherwise be buying to from someone else.

it would be ideal, for a test case, if someone in Montana could come up with a firearm that was so unique that no claim of substitution could be made... i'm thinking a palm pistol or something similar.
Author:  Sietch [ Wed May 06, 2009 9:21 pm ]
Post subject: 
I don't want to kick sand around, but it seems that some don't appreciate fully just whats going on here

princewally wrote:
This will still leave the dealers and manufacturers in violation of federal law. The state won't have a problem, but the feds will. MT residents will buy guns in MT, be legal by MT law and get stomped on by the feds. Does the new law provide funds for the legal defense of MT residents in violation of federal law under the new MT law? That's a test case I'm not anxious to see.


Not exactly. Here's why,

1) This law isn't really a law by rights. It doesn't regulate anything or repeal any existing legislation.The passing of this law is just the State government's avenue of voicing it's determination that the Federal laws addressed don't stack up against the basic watermarks of the U.S. Constitution and, incidental to this determination, aren't laws at all.

2) IANAMontanan, but again, the declaratory nature of the legislation doesn't enumerate any new rights for citizens, nor does it legalize anything previously restricted. It's principled to the tune that the State recognizes that the Federal government has no mandate to regulate much of anything that originates and finds purchase WITHIN THE STATE.

3) Legalizing at the state level what is regulated Federally is as easy as not having any laws on the books. An example is states that get behind marijuana. In California, there are pharmacies that distribute marijuana to medical users who possess state-issued permission slips. Still, they get raided and processed by the DEA all the time. The Montana law goes further, and declares the Federal government's regulatory authority null and void, as concerns firearms.

It's a statement from the government of Montana, saying "the Federal government and its agents are not vested with the power of law in this case". I.E. it and its agents would be subject to the same prosecution as you or I if we kicked down some peoples' door in Bozeman, stole their firearms, and transported and held them against their will in a fortified facility, just because their shotgun didn't jive with our regulations.

*POINT*
This is going to get interesting, when Federal agents serve a warrant pursuant to a weapons charge. All it will take is one or two peace officers in Montana who happen to be well read on MT Statutes, and probably 2A types to boot, and who reason that some men in Federal regalia are committing multiple felonies: BREAKING AND ENTERING (ram); MALFEASANCE ("police! search warrant!"); THEFT (they take the guns); ASSAULT ("move and you're dead!"), BATTERY (TASERed, tackled); KIDNAPPING (handcuffed in the backseat); FALSE IMPRISONMENT (the door in the interview room is locked). The Montana cop(s) act accordingly.

I can't wait :mrgreen:
Author:  Jeremiah [ Thu May 07, 2009 6:31 am ]
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Seems to me South Carolina, and a few other states, tried this routine a few (OK, 149) years ago- didn't go too well for them, if memory serves...

http://en.wikipedia.org/wiki/Battle_of_Appomattox_Courthouse#The_surrender
Author:  Lawyer_in_Training [ Thu May 07, 2009 9:24 pm ]
Post subject: 
Anyone thinking this is going to work need to break out their copy of the US Constitution and turn to article VI, paragraph 2,
Quote:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

It's called the Supremacy Clause.

And before anyone starts barking about federal authority to regulate in this area, read the dup thread here: http://twincitiescarry.com/forum/viewtopic.php?t=12711&start=15
Author:  mrokern [ Thu May 07, 2009 9:33 pm ]
Post subject: 
Lawyer_in_Training wrote:
Anyone thinking this is going to work need to break out their copy of the US Constitution and turn to article VI, paragraph 2,
Quote:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

It's called the Supremacy Clause.

And before anyone starts barking about federal authority to regulate in this area, read the dup thread here: http://twincitiescarry.com/forum/viewtopic.php?t=12711&start=15


Oh, it's certainly not going to work.

It doesn't change the fact that the BATF is a PITA and is full of BS.
Author:  Sietch [ Thu May 07, 2009 9:34 pm ]
Post subject: 
Jeremiah wrote:
Seems to me South Carolina, and a few other states, tried this routine a few (OK, 149) years ago- didn't go too well for them, if memory serves...

http://en.wikipedia.org/wiki/Battle_of_Appomattox_Courthouse#The_surrender


Great :D It's good you mentioned that :D

Because, well, it's irrelevant. The American Civil War wasn't fought directly over the issue of secession any more than it had to do with slavery. Buchanan had no intention of intervening, and after assuming office Lincoln stated his administration's lack of intention to subjugate the seceding states.

To better illustrate,
Quote:
The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere.
See?


The conflict began when the armed forces of the Confederate States of America made open war on Union government property and persons within the Confederacy. Compare it to the hypothetical storming of the American Embassy in London, and murder of its staff by British army regulars. We would be at war with the UK.

That's basically what happened. It makes good sense, and doesn't constitute a precedent against which my aforementioned scenario can be measured.

Persons who happen to be in the employ of federal agencies are prosecuted in criminal courts on all sorts of charges all the time, much as the general population.

And what a great come around too. How cute is it that this guy's in the oval office at such a time? Obama, another Illinois politician, hailing from Cook County and all. I'm just saying. 8)
Author:  Sietch [ Thu May 07, 2009 9:55 pm ]
Post subject: 
Lawyer_in_Training wrote:
Anyone thinking this is going to work need to break out their copy of the US Constitution and turn to article VI, paragraph 2,
Quote:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

It's called the Supremacy Clause.

And before anyone starts barking about federal authority to regulate in this area, read the dup thread here: http://twincitiescarry.com/forum/viewtopic.php?t=12711&start=15


I don't think you're feeling quite all the heat here. "which shall be made in Pursuance thereof"

It's upon this emphasis that the Montana "law" is principled, not the question of whether or not the United States have a mandate to make regulations applicable throughout the states.

Whether or not the United States may enforce new regulations as to, say, the handling of any mail bearing USPS-issued marks across the land is not up for grabs. The question of whether or not Congress may enact laws that it pulls out of its ass, like firearms regulation, is very much so.
Author:  mrokern [ Thu May 07, 2009 9:59 pm ]
Post subject: 
Sietch wrote:
Lawyer_in_Training wrote:
Anyone thinking this is going to work need to break out their copy of the US Constitution and turn to article VI, paragraph 2,
Quote:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

It's called the Supremacy Clause.

And before anyone starts barking about federal authority to regulate in this area, read the dup thread here: http://twincitiescarry.com/forum/viewtopic.php?t=12711&start=15


I don't think you're feeling quite all the heat here. "which shall be made in Pursuance thereof"

It's upon this emphasis that the Montana "law" is principled, not the question of whether or not the United States have a mandate to make regulations applicable throughout the states.

Whether or not the United States may enforce new regulations as to, say, the handling of any mail bearing USPS-issued marks across the land is not up for grabs. The question of whether or not Congress may enact laws that it pulls out of its ass, like firearms regulation, is very much so.


What is a law made "in Pursuance thereof"?

It's whatever SCOTUS says it is.

Congress can enact whatever they want, and if SCOTUS says it's constitutional, that's the law.

There's the catch of a common law system.
Author:  Lawyer_in_Training [ Thu May 07, 2009 10:13 pm ]
Post subject: 
Sietch wrote:
The question of whether or not Congress may enact laws that it pulls out of its ass, like firearms regulation, is very much so.

The only questions regarding the firearms regulations Congress may enact are if they are a legitimate exercise under the commerce clause and if they infringe the second amendment.

At this point SCOTUS says nearly everything is "commerce" and the second amendment doesn't prohibit "reasonable regulation" of the manufacture, sale or distribution of firearms. Montana can enact its law and thumb its nose at the BATF, but that's about it. You aren't going to see any "Full Auto - Made in Montana" rifles in any MT gun shops any time soon. You'll have more luck getting Congress to pass a constitutional amendment overturning Wickard v. Filburn, which will never happen.

I'd like to hear the perspective of any local law enforcement types on how willing they would be to tell a Federal LEO that they're breaking state law while the Feds are conducting a federal investigation/search/arrest.
Author:  Sietch [ Thu May 07, 2009 10:34 pm ]
Post subject: 
mrockern wrote:
What is a law made "in Pursuance thereof"?

It's whatever SCOTUS says it is.

Congress can enact whatever they want, and if SCOTUS says it's constitutional, that's the law.

There's the catch of a common law system.


When was the last time a state told Congress to fuck off, in so many words? I mean specifically regarding firearms regulations. The Montana "law" does.

Let's entertain throwbacks to the Civil Rights era, since this is inevitably heading in that direction. On whose behalf did the United States intervene militarily to enforce their laws? Black kids. They needed to get to school. We want kids to get to school. So it fits the bill.

Now Montana raises its finger to the federal government. So, this time when it comes to a stare-down, on whose behalf will the United States be acting when they subjugate the state by force of arms? Is it still for the black kids? No. Montana-made guns have yet to be identified as the scourge of black youth everywhere.

It's for the sake of the firearms then, perhaps. Who knows what people do to certain classes of weapons behind closed doors? Guns can't speak for themselves any more than they can fire themselves. So they ought to be protected? Please.

My point is: how the hell would the United States make it kosher to take on a state that way? They would really take it to blows, maybe kill some people in Montana? Who would they be protecting?

Remember Waco and Ruby Ridge? Think about that outrage. If kids need to get to school, then all's fair. But people are much less keen to line up behind the government regarding victimless crimes, especially the Waco/BATFE-"we are enjoined to kill you, shooting first if we must, in order to capture you. If you lock your door, and we shoot you to death after breaking through your door, it's unarguably your fault. You'll have killed yourself"-posture.

What will they say to polish the look of elements of a state government literally under siege?

No. I don't think so. They wouldn't dare. But now we're playing What If. So...meh :?
Author:  Jeremiah [ Fri May 08, 2009 7:33 am ]
Post subject: 
Sietch wrote:

...Remember Waco and Ruby Ridge? Think about that outrage...


Indeed. Also think about the complete non-response from the vast majority of the American people. If you waled down the street today and asked 20, I'd be shocked if even half had ever heard of Ruby Ridge. Waco made more news, but didn't provoke much in the way of general sentiment amongst the populace.

Montana can do what it pleases. Hell, I'm a sucker for an underdog. :wink: But don't go into this thinking they're actually going to be able to put in into effect. If it came to a head, the federal government would simply arrest those violating the law. Guns may be fired. People shot. News made- for a moment. Then, back to normal...
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