HELENA – Montana lawmakers are betting the words ‘Made in Montana’ might be able to trigger a court showdown with the federal government, while also freeing some gun owners and dealers from background check and licensing requirements.
Under a proposed law before the Legislature, firearms, weapons components and ammunition made in Montana and kept in Montana would be exempt from federal regulation, potentially releasing some Montanans from national gun registration and licensing laws. The legislation could also free gun purchasers in the state from background checks.
Still, the bill’s proponents say the measure has much bigger prey in its sights.
“Firearms are inextricably linked to the history and culture of Montana, and I’d like to support that,” said Republican 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.”
Gun rights and state rights both play well in Montana. The state’s leading gun rights organization boasts it has moved 50 bills through the Legislature in half as many years. And bills bucking federal control over wolf management, marijuana and wetland protection are also being considered. Unlike these others, though, the ‘Made in Montana’ measure has been intentionally drafted to draw the feds into court.
“The primary purpose is to set up a legal challenge but also to say we have a lot of really good people in Montana who do the right thing,” said Gary Marbut of the Montana Shooting Sports Association.
Montana gun manufacturers, known for specialty rifles that mirror models used in the 1800s to settle the West, are welcoming the bid for independence. The House has endorsed it with a 64-36 vote, and the Republican-controlled Senate could pass it easily.
State police associations, though, are watching this latest effort to thwart federal regulation with quiet concern. While they are not opposing the measure — a risky political stance in a gun-loving, big-sky, open-space kind of place — they are wondering just when the authorities the bill spurns might take a stand.
“I think the local elected officials I work for would certainly like to hear from the federal agency with responsibility in this area,” said Jim Smith, director of the Montana Sheriffs and Peace Officers Association.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has not offered a position on the bill and did not return calls for comment.
“The bill clearly raises constitutional issues,” said Kevin O’Brien of the state attorney general’s office. “I think that’s something that both proponents and opponents can agree on.”
The measure would require the office to file a one-time declaratory judgment representing the new law on behalf of a Montana manufacturer.
At issue in any such court case would be federal authority over interstate commerce, the legal basis for gun regulation in the United States. Through the Constitution, Congress has authority to regulate commerce with foreign nations, and among the states.
The U.S. Supreme Court has handled past efforts to bypass what’s known as the Commerce Clause, most recently in 2005 when the court upheld federal authority to regulate marijuana in California, even if its use is limited to noncommercial purposes — such as medical reasons — and it is grown and used within a state’s borders.
Montana’s current bid for sovereignty over guns, however, could fare better with the added firepower of being linked to a constitutionally protected right to keep and bear firearms, say its proponents.
“It’s only done because the firearms are a stronger case than, say, making doilies,” Boniek said. “Knitting is not a constitutionally protected right.”
However, Randy Barnett, the lawyer and constitutional scholar who represented the plaintiff in the California case, said gun rights may not have much bearing on the bill’s constitutional mettle. More important, he said, may be the “Made in Montana’ stamp — and stay in Montana guideline — that lawmakers are proposing for the state’s firearms.
In the Gonzalez v. Raich case argued by Barnett, the court said that because marijuana produced within and outside of California are essentially indistinguishable, the government must regulate both to enforce national drug laws. Montana, though, could potentially argue that its guns are sufficiently unique and segregated as to lie outside of overarching federal regulatory schemes, Barnett said.
The actual economic impact of the bill, pitched in part as a stimulus, is uncertain. The number of firearms made here lock, stock and barrel are limited, as are the number of Montanans available to buy them. For example, the gunmaker Shilo Sharps Rifles in Big Timber estimates that of the 800 or so custom guns it builds in a year, only between 20 and 30 are sold to state residents.
But the proponents say no matter — unregulate it, and they will come.
“We tend to break trail here in Montana,” Marbut said.