Some thoughts on the Montana Firearms Freedom Act


I am no lawyer but there are a couple of clauses from the Montana Firearms Freedom Act and how I interpret them.

Section 3 states

(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.

So unfortunately it looks like 90 / 80 / 70% finished receivers imported into Montana and completed will not be considered “Made in Montana”.

This also means Montanans will not be allowed to chop down their rifle barrel or add a foregrip to their handgun without running a foul of the BATFE, unless the gun was made in Montana.

Section 5 (restrictions) states:

(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;

What this means is that while 20mm rifles/cannons are not going to be classified as destructive devices if made in Montana, and we may even seen 30mm cannons manufactured there. That will be exciting!

1.5″ is equal to 38.1 millimeters so unfortunately 40mm RPGs will not be legal due to the caliber restriction πŸ™

A big thanks to Jay for the info about the Act.





Steve Johnson

Founder and Dictator-In-Chief of TFB. A passionate gun owner, a shooting enthusiast and totally tacti-uncool. Favorite first date location: any gun range. Steve can be contacted here.


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  • Matt Groom

    The question my co-workers and I discussed is whether or not the federal gov’t would be able to restrict the production of firearms in Montana through the horribly misinterpreted and essentially infinite powers of the Commerce Clause. Regulating raw materials which could be used for anything might be seen as reason to infringe on the citizens of Montana’s rights because the materials didn’t originate there. The Ore used to make the steel barrels likely won’t come from Montana, the plastics used to mold handguards probably won’t etc, etc.

    Many interesting court battles are in Montana’s future.

  • T Reynolds

    The way Part 5 Section 4 is written could describe a shotgun as well as full-auto or burst fire firearms.

    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.

    • T, you make a good point. All over the world similar restrictions are legislated, but shotguns are either explicitly excluded or the law is simply not interpreted to include them. But Montana is breaking new ground with this by defying the Feds. I expect the state attorney general will need to rule if this does or does not include shotguns. It would be a pity if it did include shotguns, because short barreled shotguns would probably be popular.

  • Whoa, I hadn’t noted seen that full-auto exclusion! So they’re still keeping some significant NFA-style restrictions.

    Essentially, all they’re doing is exempting Montana-made short-barrel firearms and silencers from NFA registration. They expand the allowed bore size to 38mm, but since they require that the firearms be single-man portable and usable that practically just means that you don’t have to register 37mm launchers.

    This doesn’t open or facilitate any new opportunities to play with full-auto guns, mounted cannon, or explosive projectiles. πŸ™

  • Freiheit

    What firearms or related manufacturers exist in Montana?

    I’m wondering who bought which representatives to get this passed so I can buy gun stuff from them. Its not corruption when you agree with it! πŸ˜›

    • Freiheit, don’t know, but there will be *many* suppliers of suppressors very soon. Any engineering firm with a lathe can easily make them.

  • I was so tickled when I heard about this today. If I am not mistaken UT and TX are also doing something similar. Any prediction on other states that will do this as well?

  • jdun1911

    As some of you are aware, state sovereignty movement is gowning. Every month there is a new state that asserts its sovereignty under the 10th Amendment.

    From my understanding this allows anybody to manufacture in Montana without the approval from the ATF. It will set up a legal challenge that will surely go to the SCOTUS as the bill was intended. If Montana is successful it will have board impacts that will extent to every corner of this country.

  • They fumbled when they did not allow full auto. Texas has HB 1863 which is similar to the Montana bill. I hope Texas includes the full auto. It is about time we chink away at the NFA acts.

  • Rick Randall

    Technically, Paragraph 4 “(4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.”) means that any gun that fires multple projectile loads (i.e. shotguns) are ALSO not covered by this law.

    Arguably, anything for which shotshells, snakeshot, duplex, or triplex are commercially available would also not be covered.

    In other words, somebody REALLY screwed up the wording on the statute. If they wanted to avoid covering machine guns (whether becuase they don’t think MGs are “good” guns, or they just didn’t want to wave that flag in the face of the antis while they get this fight going), they should have said “shots” rather than “projectiles”.

  • Matt Groom

    After having read the bill, it seems my previous comments are essentially without merit. They use specific wording that would prevent Congress and the ATF from regulating materials used to make firearms as firearms. I.E. parts, accessories, and materials that are used to construct a “Made in Montana” firearm would not change the legality of that firearm under the interstate commerce clause.

    Part 5, Section 4 does not seem to include an exemption for Shotguns, but I assume that smoothbore firearms will be exempted from restrictions against machine guns. They’d have to be thorough, otherwise you’ll see full auto smoothbores.

    I’m gonna move to Montana or any state that has a similar provision just so that I can open my gun company with less hassle from the man. Worst case scenario, I can only sell guns in that state, and the ATF won’t be able to raid my company and steal all of my products like they did to Cavalry Arms.

  • Rick Randall

    Why would shotguns be exempted from restrictions on machineguns, as worded in this bill?

    1. Fully automatic shotguns have been around for a while. (One of my favorite devices are the pre-1986 regsitered trgger packs for Remington 1100 shotguns. . . THAT can’t be condusive to long service life of the receiver! )

    2. The way paragraph 4 is worded, it doesn’t actually cover machine guns — it covers ANYTHING that throws more than one projectile per pull of the trigger. Basic rule of legal semantics — unless otherwise specifically defined, words have their normal meaning. They didn’t define “projectile” to mean “cartridge” — so it still means what “projectile” normally means — the fast moving chunk of metal coming out of the business end of the gun. regardless of wether it was launched 1/10th of a second later by the cycling of the action, or simultaneously as part of a shot load.

  • Jon L

    “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.”

    This law isn’t worth the parchment it’s written on.

  • Rick Randall

    Jon,

    That’s only true if Congress has the authority to regulate the item in question in the first place.

    Congress’s authority for controlling the manufacture, sale, and pssession of firearms is due to it’s nexus with interstate commerce. This law removes that direct nexus (the guns involved will NEVER have been involved in interstate commerce) — leaving only a VERY flaky theory based on a cowed FDR-era SCOTUS interpreting a Neal Deal provision controlling how much wheat a farmer can grow on his own land, for his own use, with no intent to or actual commerce with any other individual concerning that wheat.

    This law is a good stab at taking another bite at overturning Wickard v. Filburn. Given that United States v. Lopez and United States v. Morrison both upheld the limits of Congressional authority to regulate firearms under interstate commerce.

    Such a ruling would also affect Gonzales v. Raich (and therefor United States v. Stewart).

  • Rick Randall

    Last comment is missing some thoughts. (sorry)

    Last two paragraphs should read:

    This law is a good stab at taking another bite at overturning Wickard v. Filburn. Given that United States v. Lopez and United States v. Morrison both upheld the limits of Congressional authority to regulate firearms under interstate commerce, it has a plausible chance of surving SCOTUS review.

    Such a ruling would also affect Gonzales v. Raich (and therefore United States v. Stewart). Raich was blatantly a matter of “We hate weed”, with the majority stretching to find a reason to keep in place a federal ban on intrastate marijuana production, possession, and sale, with teh weak reed of Wickard as a shield, and Stewart was simply remanded to be reheard by the lower court in accordance with Raich.

  • Jon L

    This isn’t going to overcome Raich. Scalia will vote with the liberals, possibly Kennedy as well.

  • Rick Randall

    Very likely.

    IF — Scalia is sitting when the case comes before SCOTUS, you’re probably right — his vote on Raich was severely disappointing, from an originalist perspective. But he (liek any person) could have a stroke, get run over by a bus, etc., before the case comes before The Nine.

    IF — The upcoming replacement justices (even though they are most likely to be replacing liberal justices, you can bet they’ll be even MORE liberal than those they replace and activist, under the guise of “empathy”) to be appointed in the next 3.5 years wouldn’t rather swap this for overturning Raich (tus enabling “medicianal marijuana).

    Even replacing only liberal justices is not a true one-to-one swap, if the new justices are even more inclined to vote based on happy feelings than any semblance of a consistant LEGAL philospohy beyond, “I want people to like me”. Ginsberg is a logical giant and consistant scholar compared to what I expect this administration to appoint. (Even many of us who do not agree with Ginsberg most of the time will admit that she is generally consistant in her reasoning — I think she’s WRONG, and her starting principles and theory of judicial interpretation are flawed, but she’s CONSISTANT in her reasoning. I’ll HAPPILY take an honorable justice well grounded in A legal philosophy I generally disagree with over over someone with no firm grounding and thus weak and inconsistant reasoning — like O’Connor.)

  • Josh

    “β€œThis 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.”

    The current batch of Federal Firearms Laws are NOT in pursuance of the United States Constitution, and are, as such null.

  • Rick Randall

    That’s great, Josh.

    You have three options (and ONLY three options):

    1. Get Congress to overturn them.

    2. Get SCOTUS to overturn them.

    3. Stage a successful revolt.

    Unless you are prepared to intiate, AND ABLE TO WIN, Option 3 is off the table — leaving you back in the politico-legal framework. Talking about aboslutist positions without any way in which you can EFFECTIVELY enforce them is a recipe for failure and a backlash of worse restrictions.

    Rick R.

  • JW

    What you should understand is that Montana is IN the United States. It does not matter what the State Government in MT or any other states codify into law, if it does not mesh with US Law it is a moot point. In other words the Government of MT could legalize machine guns or crack cocaine for that matter and while state law enforcement could not arrest and prosecute for the possession of these items the FED could and will.

    The states and the Federal Government represent two very different entities. You should know that the Federal government can and often does prosecute someone for a crime they have already been prosecuted for in state court through an application of federal law known as the Petit Policy. This is regardless of a verdict of guilty or innocent.

    You see the idea of any State having ANY authority above or counter to the Federal Government is just PLAIN WRONG and a recipe for disaster if anyone is foolish enough to believe it!

    So, don’t plan on getting a 40mm anytime soon unless you get it registered as an NFA weapon and pay your 200.00 tax.

  • Rick Randall

    JW —

    I recommend you look at two sections of the United States Constitution,

    Article VI and teh 10th Amendment.

    Article VI is the Supremacy Clause, which states that, “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.”

    On the surface, that seems to indicate that ANY law Congress passes that the President doesn’t veto automatically overrides any contradictory state law. Not quite.

    Only those laws that Congress passes that are made, “in Pursuance thereof” [the Constitution] are supreme.

    Now, on to the 10th Amendment. . . “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Unless Congress has the Constitutionally delegated authority to legistlate a cetrtain matter, it absolutely lacks the authority to pass such law — and any such soi disant “law” they appear to pass is null and void.

    See United States v. Lopez, 514 U.S. 549 (1995) for clarification.

    Also see United States v. Morrison, 529 U.S. 598, 598 (2000) and Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001).

    For the flip side of this situation, read my earlier comments on Gonzales v. Raich and Wickard v. Filburn.

    If Congress lacks the authority to ban INTRAstate commerce in guns, then any law they make to contrary is irrelevant. This becomes ESPECIALLY important when looking at 922(o) (the May 1986 Machinegun Registration Freeze).

    Because Montana IS a state of the United States, and not a federal possession. Congress does not have UNFETTERED authority to pass whatever laws they like.

    As for the argument that I have heard others use, from McCulloch v. Maryland, “That the power to tax involves the power to destroy [is] not to be denied. . . ” (this is the “authority” by which 922(o) was passed; the NFA is a TAX law, and Congress was only using it’s power to tax to destroy civilian machinegun ownership by refusing to collect “making” or “registration” taxes on newly built machineguns, so that it was illegal to possess newly made machineguns unless you were a government agency or Federally licensed NFA manufacturer, importer, or dealer), the REALLY TOUCHY PART of that is that, by that reasoning, there are only three POSSIBLE legal reasonings that can logically be made:

    1. No actual rights exist, as Congress can tax pretty much anything, EXCEPT they are forbidden to pass a poll tax. Or did you think that journalists and authors, for example, do not pay income taxes or publishing houses and media corporations do not pay taxes? Ever paid a tax for your phone line, cable service, or internet connection? Paid sales taxes on a book or newspaper?

    2. Congress is prohibited from taxing ANY exercise of a Constitutionally guaranteed civil right. After all, if the power to tax is the power to destroy, then the logical conclusion is that Congress is forbidden to tax what Congress is forbidden to destroy. Goodbye NFA (which, again, is purely a TAX law — the prohibitions are not on possession or manufacture, they are on possession of manufacture of UNTAXED NFA items; the 1968 GCA is ALSO in large portions, a tax law. . . ), goodbye excise taxes on firearms manufacture, wait for ALL media corporations and persons to be relieved of tax liability in the same manner as religious organizations and clergy are, etc.

    3. Or, Oliver Wendell Holmes was correct in his dissent in Panhandle Oil Company v. Mississippi ex rel. Knox, Attorney General, 277 U.S. 223. “The power to tax is not the power to destroy while this Court sits.” That would mean that, while the NFA would stand, 922(o) WOULD NOT, and we would be (for NFA purposes) right back to a pre-May 1986 situation.

    Frankly, either overturning Gonzales v. Raich (and possibly Wickard v. Filburn) and recognizing that purely INTRAstate commerce is not under Federal authority. . . which would wholly recognize these state preemption laws like Montana’s — regardless of whether they concern machineguns or not, OR interpreting 922(o) as only applying to Federally licensed MANUFACTURERS (since 922(o) has an exception for MGs made under governmental authority, and the way a nonlicensed person legally builds an NFA controlled item is by filing an ATF Form 1 application to “make” the “firearm” — i.e., you would be permitted to “Form 1” a machinegun again) would completely sidestep this issue. . . making either solution a more likely SCOTUS solution.