Some thoughts on the Montana Firearms Freedom Act

Steve Johnson
by Steve Johnson

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 🙁

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

Steve Johnson
Steve Johnson

I founded TFB in 2007 and over 10 years worked tirelessly, with the help of my team, to build it up into the largest gun blog online. I retired as Editor in Chief in 2017. During my decade at TFB I was fortunate to work with the most amazing talented writers and genuinely good people!

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  • JW JW on Jan 02, 2010

    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 Rick Randall on Jan 04, 2010

    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.

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