Montana gun law targets states' rights clash
Kahrin Deines, Associated Press
Sunday, May 10, 2009
(05-10) 04:00 PDT Helena, Mont. -- Montana is trying to trigger a battle over gun control - and perhaps make a larger point about what many folks in this ruggedly independent state regard as a meddlesome federal government.
In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.
That notion is all but certain to be tested in court.
The immediate effect of the law could be limited, since Montana is home to just a few specialty gun makers, known for high-end hunting rifles and replicas of Old West weapons, and because their out-of-state sales would automatically trigger federal control.
Still, much bigger prey lies in Montana's sights: a legal showdown over how far the federal government's regulatory authority extends.
"It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," said Democratic Gov. Brian Schweitzer, who signed the bill.
Carrie DiPirro, a spokeswoman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had no comment on the legislation. But the federal government has argued that it has authority under the interstate commerce clause of the U.S. Constitution to regulate guns because they can so easily be transported across state lines.
Guns and states' rights both play well in Montana, the birthplace of the right-wing Freemen militia and a participant in the Sagebrush Rebellion of the 1970s and '80s, during which Western states clashed with Washington over grazing and mineral extraction on federal land.
Montana's leading gun rights organization, more hard-core than the National Rifle Association, boasts it has moved 50 bills through the Legislature over the past 25 years. And lawmakers in the Big Sky State have rebelled against federal control of everything from wetland protection to the national Real ID system.
Under the new law, guns intended only for Montana would be stamped "Made in Montana." The drafters of the law hope to set off a legal battle with a simple Montana-made youth-model single-shot, bolt-action .22 rifle. They plan to find a "squeaky clean" Montanan who wants to send a note to the ATF threatening to build and sell about 20 such rifles without federal dealership licensing.
If the ATF tells them it's illegal, they will sue and take the case all the way to the U.S. Supreme Court, if they can.
Similar measures have also been introduced in Texas and Alaska.
"I think states have got to stand up or else most of their rights are going to be buffaloed by the administration and by Congress," said Texas state Rep. Leo Berman.
Critics say exempting guns from federal laws anywhere would undermine efforts to stem gun violence everywhere.
"Guns cross state lines and they do so constantly, and this is a Sagebrush Rebellion-type effort to light some sort of fire and get something going that's pleasing to the gun nuts and that has very little actual sense," said Peter Hamm, communications director for the Brady Campaign to Prevent Gun Violence.
In a 2005 case, the U.S. Supreme Court upheld the enforcement of federal laws against marijuana in California, even if the drug is for medical purposes and is grown and used within the state. The court found that since marijuana produced in California is indistinguishable from pot grown outside the state, the federal government must have the authority to regulate both to enforce national drug laws.
Randy Barnett, the lawyer and constitutional scholar who represented the plaintiff in the California case, said that Montana could argue that its "Made in Montana"-stamped guns are unique and sufficiently segregated as to lie outside federal regulation.
Supporters of the measure say the main purpose is not extending gun freedoms, but curbing what they regard as an oppressive interpretation of the interstate commerce clause and federal overreach into such things as livestock management and education.
"Firearms are inextricably linked to the history and culture of Montana, and I'd like to support that," said Montana state Rep. Joel Boniek, the bill's sponsor. "But I want to point out that the issue here is not about firearms. It's about state rights."
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/10/MN4V17BCF2.D...
McQ by Alexander McQueen
I, personally, think this is great. Not like that is any surprise to anyone.
1I'm pretty excited about it, too. I would actually like to see similar laws with different subject matter (other than guns) passed as well. I'll never accept the power that the federal government claims they have based on the interstate commerce clause, and the fact that they seem to have forgotten the 10th amendment. It's mind boggling and infuriating.
2Interesting!
But what happens if/when (cause you know it'll probably happen eventually) those
"Made in Montana" guns got out? That would basically undermine their efforts don't you think.
3The precedent against this is so strong and goes back so far it's ridiculous. Basically the precedent is: if it CAN effect interstate commerce then the federal government can regulate it. That is, since you're buying a gun that is made in Montana, you're buying it instead of a gun that could have come from another state, therefore you have effected interstate commerce.
This ridiculous precedent means the government can regulate anything, and as Mich said, it effectively crosses out the 10th amendment.
But it is great to see states finally standing up for themselves and what sovereign authority they're allowed. And maybe the judiciary will actually give some weight to how the constitution reads and allow states to regulate their own firearm production.
4Although only a dumbass would buy a Montana-made gun and take it across state lines...
5I would think the federal government would have the authority to regulate the movement of the guns to another state only if they are being transported for the purpose of sale. That is, if they were actively involved in "commerce" at the time of trafficking the guns across state lines.
6I look forward to seeing how this pans out, especially what the rifle made in Montana looks like.
7"...gun registration, background check and dealer-licensing rules because no state lines are crossed." What's wrong with putting someone through an extensive screening process before you provide them with arms? Responsible gun owners should have no problem with this since they would have nothing to hide and no need for immediate acces to a gun. I don't see how working to ensure guns don't land in the hands of criminals, etc is "meddlesome".
8To me, this sounds like it's a sort of government pissing contest. The state is saying the federal government is overstepping its abilities with some of these laws, and this is one way to show the federal government that they don't get to try and control everything.
9Agree Roar
10Agree Roar & Genesis.
11My basically question is how do you know the intentions of the buyer is to only use their Montana-manufactured gun within Montana!?! What if the gun is unintentionally transported across state lines?
12As long as the person taking the gun out of Montana isn't selling it, the commerce regulations don't apply.
13"In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed."
SKB - the commerce rules may not apply, but that the above shouldn't apply is shaky, since as tiabia pointed out, it is very hard to ensure the guns are not taken out of state.
14Roar, why couldn't a responsible, potential gun owner have an immediate need for access to a gun?
15"SKB - the commerce rules may not apply, but that the above shouldn't apply is shaky, since as tiabia pointed out, it is very hard to ensure the guns are not taken out of state."
The federal government's regulation of firearms is exclusively based on the interstate commerce clause, which is the only way the federal government claims to have any jurisdiction over intrastate firearm sales.
If the commerce rules do not apply, the federal government is legally bound to leave the power to the states via the 10th amendment.
16I just can't think of an instance where one might need a gun immediately that it would be beneficial to waive background checks and waiting periods.
I don't see doing away with safe guards to keep guns out of the hands of those with bad intentions as a good thing, I don't see why a State or its people would see it as a positive thing either. Guns are powerful weapons, we should do all that is possible to ensure that they are available only to those who plan on using them safely and responsibly.
Im not for taking guns away from people, to each his own. I personally don't own one and am not interested in them. For those who are, that's fine. I just don't see this particular move to relax the screening process as a good thing. I also think it is impossible for them to insure that these guns are kept in there state.
17You can't think of a single instance in which a regular person would be in an immediate danger that they did not foresee in time to go through a federal background check which can take up to a week?
18"What's wrong with putting someone through an extensive screening process before you provide them with arms? Responsible gun owners should have no problem with this since they would have nothing to hide and no need for immediate acces to a gun. I don't see how working to ensure guns don't land in the hands of criminals, etc is "meddlesome"."
I think you missed the point. As the article states, Montana does not necessarily have an issue with background checks or screening, and this law isn't really about gun rights, it's about state's rights. Regardless of whether background checks are a good idea, the federal government does not have the Constitutionally granted power to make and enforce such laws. I don't understand why people are so willing to wave away the highest law of the land just because they think something is a good idea!
19Organic, I can't. If you have enough warning time to go and purchase a gun, you have enough time to seek other means of protecting yourself. We aren't going to see eye to eye on this, we have fundamentally different beliefs on the necessity of fire arms. I do not have and will never have a gun. And I feel safe. You may feel differently, which is fine. But I do not see the point in us furthering this conversation, it will only have us running in circles.
20Roarman, ignore the 2nd amendment for a minute and tell me what you think about the 10th. Because apparently, you (and the federal government) have forgotten it exists.
21It's not about "feeling" safe. It's about allowing people to exercise their right to bear arms in a means to defend themselves and their families. If you can't exercise your right when you need it, you don't have it at all.
On March 5, 1991 Bonnie Elmasri called a firearms instructor, worried that her husband-who was subject to a restraining order to stay away from her-had been threatening her and her children. When she asked the instructor about getting a handgun, the instructor explained that Wisconsin has a 48-hour waiting period. Ms. Elmasri and her two children were murdered by her husband twenty-four hours later.
In September 1990, a mail carrier named Catherine Latta of Charlotte, North Carolina, went to the police to obtain permission to buy a handgun. Her ex-boyfriend had previously robbed her, assaulted her several times, and raped her The clerk at the sheriff's office informed her the gun permit would take two to four weeks. "I told her I'd be dead by then," Ms. Latta later recalled. That afternoon' she went to a bad part of town, and bought an illegal $20 semiautomatic pistol on the street. Five hours later, her ex-boyfriend attacked her outside her house, and she shot him dead. The county prosecutor decided not to prosecute Ms. Latta for either the self-defense homicide, or the illegal gun.
22In both cases, they had alternatives, as Roar said. People protect themselves from angry exes all the time without weapons.
23I don't think that anyone who wants one should have access to a gun, no matter what state they live in or what state the gun was manufactured in. I don't think that waiving the screening process is beneficial to Montanans or the courntry as a whole. And as I said three times on here now, it is impossible for Montana to insure that its guns will stay put. One of the roles of the federal governments is to protect the people. This move by Montana could have far reaching, devastating implications if they allow anyone who wants one to have a gun. I do not see this as a good thing.
I am not of the belief that all gun owners are violent or irresponsible. But I am of the belief that we should make it as difficult and tedious a process as is necessary to ensure that guns are kept out the hands of those who wish to do harm. We are talking about dangerous weapons here that have the power to take a life. We aren't talking about water guns and bubbles.
24Should they flee their own home? Take their children out of school, quit their job and leave the state? Impose on a neighbor who is armed and prepared to defend them? Bring the danger to their extended family members?
The most reasonable option is to prepare to defend themselves, because the police obviously can't live with them. Do you really think it's reasonable to expect people to retreat from their own homes and lives?
25Steph - What was Bonnie Elmasri's alternative? If she had a gun, she and her children might be alive today. What was Catherine Latta's alternative?
26One of the aforementioned women was very easily able to obtain an illegal firearm when the waiting period proved to be a danger to her. Very clearly, the more tedious a process and lengthy a process, the less likely people who don't mind disregarding the law are going to use it. But that's the obvious problem with the extensive gun control and why it leads to more gun violence.
27"Should they flee their own home? Take their children out of school, quit their job and leave the state? Impose on a neighbor who is armed and prepared to defend them? Bring the danger to their extended family members?"
28People choose these other options all the time and no one dies. A gun is no more guarantee of safety than any of the other options and like the other options the gun solution brings its own risks.
So, the day Ms. Elsmari requested a handgun was the first time she had any indication that her husband was a threat to her? She had a restraining order. It seems she was aware that her husband was a threat before this day. I don't know the exact time frame here, but she may have had enough time to gain access to a legal firearm if she felt that was the only way to proterct herslef and her children.
"Should they flee their own home? Take their children out of school, quit their job and leave the state? Impose on a neighbor who is armed and prepared to defend them? Bring the danger to their extended family members?" Many people do choose these means of protection. Not everyone protects themselves with a gun and most of us see a long life.
29"People choose these other options all the time and no one dies."
Of course people are murdered in those situations I mentioned.
"Another example of how protection orders don't protect was published in the August 29, 2002, issue (p. Metro1 and Metro 7) of the Colorado Springs Gazette. Mary Lou Smith, age 52, was shot and killed the evening of August 28 th as she sat in the living room of a friend's house where she had sought safety."
Maybe they should rig up paint cans on ropes on the stairs à la Home Alone?
30But it's my Constitutional right to own a firearm. That's my CHOICE. Just as the liberals don't want reproductive choice taken away, I don't want my choice as to whether or not I can legally own a firearm taken away.
31"But it's my Constitutional right to own a firearm. That's my CHOICE." I haven't advocated anywhere in this thread to take away a persons rights to own a gun.
32"I don't think that anyone who wants one should have access to a gun..."
33"Not everyone protects themselves with a gun and most of us see a long life."
Not everyone is unlucky enough to have a murderous ex-partner stalking them, Roar. In fact, most people don't have that experience. It just illustrates that a one-size fits all system fails women, such as the aforementioned, who are vulnerable.
There is not enough information to know whether the threats had escalated which prompted Elmasri to seek out a firearm. There could be any number of variables, including economic ones, that forced Elmasri to put off getting a firearm.
34"But I am of the belief that we should make it as difficult and tedious a process as is necessary to ensure that guns are kept out the hands of those who wish to do harm."
And you'd like to make it as difficult as possible for someone choosing to exercise their Constitutional right to own a firearm to do so.
35""People choose these other options all the time and no one dies."
Of course people are murdered in those situations I mentioned."
Yes people do die in these instances. But there are hundreds of times that noone dies when they choose the alternative methods of protection that do not involve handguns. People also die when they have a handgun avaialble as well. It is not an absolute.
Organic, all of your examples could have had the same result even if these people were gun owners. The thing about crimes is that the one committing it knows its going to happen while the victim has no clue. So unless these individuals were walking around with an exposed, cocked handgun, they still may have died.
36"And you'd like to make it as difficult as possible for someone choosing to exercise their Constitutional right to own a firearm to do so" Id like to make it difficult for criminals and those who wish to do harm to exercise that right. For the rest of you, a little waiting should not matter. It does not mean you will never own a gun. A few days or weeks shouldn't be that big a deal.
37Sure they might have been murdered. Obviously owning a firearm is not a panacea. All it can do is level the playing field and often the mere presentation of a firearm can have the desired effect on an assailant.
What makes these two cases so relevant is that the women actually did seem to have a pretty good idea of when they were going to be attacked, relative to most of us. And that's why it is so terrifying that they were deprived of their right by a clunky law that assumes them to be violent criminals.
38"A few days or weeks shouldn't be that big a deal."
If you don't consider being murdered by an armed assailant a big deal.
39Even if they had their guns at the ready, the other person still might have been a better shot, so survival is not guaranteed.
40Plenty of people survive attacks and abusive relationships without a firearm. I would bet that more do than don't. These are extreme examples hence why they got coverage. Nobody reports on the successes of a protective order because it is not an anomaly, it is the norm.
41Who is saying survival is guaranteed? That's a straw man argument.
Having a gun decreases your chances of losing a gun fight as compared to not having a gun. And it would obviously tip the scales in your favor if your assailant did not have a gun.
42"If you don't consider being murdered by an armed assailant a big deal." I see it as an unlikelihood.
43"Id like to make it difficult for criminals and those who wish to do harm to exercise that right."
The criminals don't care about obtaining a gun legally. As Organic's comment shows, a law abiding citizen, who the law failed to protect, was able to obtain a firearm illegally & for cheap. What makes you think someone wishing to do harm wouldn't just go outside of the law to do the same thing? Do you honestly think all the gang members in the US got their firearms through legal channels?
44Just because the majority of people do not have an experience does not make that experience not valid and worthy of consideration.
Most women will not be raped, does that mean that the experiences of women who are raped should be given less weight when it comes to rape prevention? Of course not.
45"The criminals don't care about obtaining a gun legally. As Organic's comment shows..." Do we know if the perpetrators in those examples had illegal guns? ANd the topic of this thread is Montana's desire to do away with the waiting periods/background checks for state manufactured guns. If that happens, the guns will be available to any resident.
46Leaving the area of conflict also decreases your chances of being harmed. There are other options so the situations presented don't make a strong case of immediate need for foregoing background checks on would be gun owners.
47Organic, I don't feel the need to protect myself against something that will most likely never happen to me. I do not wish to stop people from obtaining guns or protecting themselves in that matter should they see fit. But I do not think we should make them avaialble without screening, period. Your examples are unfortunate, but strict gun laws were only a miniscule factor in these womens deaths. Access to a gun immediately was not a guarantee that these stories would have played out differently. The only guarantee for that is had these individuals never met.
48The more options utilized, the safer the person will be. I'm not so arrogant as to think I know the most reasonable solution to every citizen's problem. Though I don't think people should be forced to hide from dangerous assailants, I absolutely do not begrudge them taking that option. Taking away generally law-abiding people's options for self defense under the assumption that they are violent, irrational criminals and therefore need to have a "cooling off" period is irresponsible and clearly dangerous.
49So because of these rare instances we should do away with waiting periods?
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