The Achilles HeelS of Montana and tennessee
Firearms Freedom ActS
by E. F. Nappen, Attorney at Law
First Posted November 2009
I like the general message of the Firearms Freedom Act. (FFA) I am for limiting the federal government’s control over firearms.
According to the Firearms Freedom Act website found at http://firearmsfreedomact.com/ the concept is described as:
“Originally introduced and passed in Montana, the FFA declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states… The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the “commerce clause,” with firearms as the object – it is a state’s rights exercise.”
Both Montana and Tennessee have passed FFA’s and they are to be commended for their commitment to the right to keep and bear arms. Unfortunately, the FFAs passed in Montana and Tennessee have serious problems that make their probability for success in the courts highly unlikely. Both States’ FFAs contain items regulated by the federal government, not under its power of interstate commerce, but under the federal government’s power of taxation. It specifically includes silencers and destructive devices (firearms over .50 Caliber).
These items are regulated under the 1934 National Firearms Act (NFA) which claims its power under taxation, not interstate commerce. The Montana and Tennessee FFAs do NOT include machineguns which are also NFA. Why bother having silencers and destructive devices in an FFA and not machine guns? Rifles, shotguns and handguns are regulated by the 1968 Gun Control Act (GCA) which is based on interstate commerce powers.
Including anything NFA in an FFA, defeats the concept of the FFA as stated on the website. Distinguishing "intra" state powers from "inter" state powers is supposed to be the FFA is all about. The NFA is jurisdictioned in federal tax power and the federal government does not rely on interstate commerce for NFA enforcement. The federal tax power has been well established (essentially since the Whiskey Rebellion) and as unfortunate as that is, ignoring it seems rather foolhardy. Since machine guns are not included in either states’ FFA, it should be a “no-brainer” to remove silencers and destructive devices as well. Otherwise, the FFA only sets up unsuspecting gun owners for successful federal prosecutions should they attempt to make, sell or possess NFA items without obeying federal law.
Even without the NFA problem, the FFA interstate commerce legal battle is an extreme long shot to win. This is because the commerce clause has been interpreted to give very broad powers to the federal government. In the 1942 case of Wickard v. Filburn the Supreme Court Of The United States (SCOTUS) decided that federal laws controlling wheat production could even be applied to wheat grown strictly for "home consumption" on a farm. The reason given was that a farmer growing "his own wheat" can have a substantial cumulative effect on interstate commerce
SCOTUS has rarely declared laws unconstitutional for violating the Tenth Amendment. They have only done it twice in the last 50 or so years. However, one of those times was regarding a gun control law. In the 1977 case of Printz v. Untied States, SCOTUS ruled that the Brady Act violated the Tenth Amendment. This was because the Brady Act directly required states to enforce federal law. That is not an FFA issue. In fact it is the opposite issue here. The FFA enacting state does not want the federal government to be able to enforce its gun laws in the state.
The 2005 SCOTUS decision of Gonzales v. Raich makes it even less likely for an FFA to survive a legal challenge. In Raich, a California woman sued the DEA after her friend Monson's crop of medical marijuana was taken and destroyed by the U.S. government. In California medical marijuana was specifically legalized under state law. This directly conflicted with the federal law. Raich used the marijuana strictly for her own use and did not sell any. SCOTUS stated that it still affected interstate commerce and used the same reasoning as in the Wickard.
Given all of the above, is it still worth a try to test the federal interstate commerce powers when it comes to guns? The answer to that might depend on whether you are the one facing federal prison for manufacturing a silencer or a destructive device (over .50 caliber) because you relied on your state’s FFA.
The FFA with the most chance of success will at least exclude anything NFA. Including NFA items is only wishful thinking, a purely political statement or a demonstration that the FFA writers do not understand the legal significance of including NFA items. None of those reasons help out in court. There are currently three (3) FFA bills filed in the New Hampshire legislature. Hopefully at least one of the bills will not have any NFA items in it. Such an FFA will give New Hampshire citizens the best chance, however slim and remote, at successfully asserting their state’s position when it comes to guns.
