|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
March 14, 2018, 08:51 AM | #1 |
Senior Member
Join Date: December 8, 2015
Posts: 202
|
Montana Supressor Loophole...
As some of you may know, back in 2009 Montana passed the "Firearms Freedom Act". It reads:
30-20-104. Prohibitions. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana. With the definitions being: 30-20-103. Definitions. As used in this part, the following definitions apply: (1) "Borders of Montana" means the boundaries of Montana described in Article I, section 1, of the 1889 Montana constitution. (2) "Firearms accessories" means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, and lights for target illumination. (3) "Generic and insignificant parts" includes but is not limited to springs, screws, nuts, and pins. (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. If I am reading this correctly, if I build a suppressor in my own shop to put on my bolt action rodent rifle, I do not have to register it according to the Montana law - But the Fed law says I do. If we look at the topic of Marijuana, States don't have to follow federal law... What are my chances of staying out of jail if I build my own unregistered suppressor as long as I follow the Montana law? Thoughts? |
March 14, 2018, 09:00 AM | #2 | |
Senior Member
Join Date: April 22, 2016
Posts: 2,192
|
Quote:
|
|
March 14, 2018, 09:02 AM | #3 | |
Senior Member
Join Date: December 13, 2005
Posts: 4,457
|
Quote:
If you build a suppressor without complying with federal requirements and you are prosecuted for that failure of compliance, this bit of state code (commendable in its aspiration) is not going to save you from enormous expense and possibly worse. A form 1 is cheaper. I am not a criminal defense attorney, and not an expert in this area. I only responded because the answer to your question involves no grey area. You shouldn't risk it.
__________________
http://www.npboards.com/index.php |
|
March 14, 2018, 09:42 AM | #4 |
Staff
Join Date: March 11, 2006
Location: Upper US
Posts: 28,846
|
At a guess, I'd say it would probably keep you out of Montana jail, but not out of federal prison...
The Fed's belief that Federal law takes precedence over state law has been pretty constant since about 1865. If, they decide to prosecute... OK, lets look at the marijuana thing...still a Schedule 1 drug and illegal under fed law. Period. Doesn't matter what your state says. If the Fed decides to prosecute, they will. The Obama administration instructed Fed LEO "not to bother" with prosecutions for pot, IF the "crime" did not violate state laws. In other words, if you got caught with a couple ounces, they didn't care, if it was a couple hundred pounds, the Fed would be on the case. And, of course, any amount on property under Federal jurisdiction would be prosecuted, no matter what state law said. The Trump administration can change that, if they care to. Whether or not to prosecute for "x" is entirely an administrative matter. Changing the LAW is not. If you want to be the test case, good luck with that. Personally, I think the Feds will flay you, and nail your skin to the prison wall, if, for no other reason than to show they are still the big dogs. Remember, if tried, it will be in Federal court, for violation of Federal laws. Your state laws will have no standing there, unless/until that court rules that they do. and, as I said, Good Luck, with that. You may be in the right, under state law. You may be in the right under any logical and moral judgement. Won't stop you from being convicted by the Fed, if they feel like prosecuting.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better. |
March 14, 2018, 10:46 AM | #5 | |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,468
|
Quote:
You referenced the marijuana simile, so remember how that works. The feds can (and have) assert(ed) jurisdiction not only in situations that "do" affect interstate commerce, but also in cases that "might" affect interstate commerce. To directly match up with the marijuana precedent, you build a suppressor in Montana, and the feds bust you because by NOT buying it from another state, you "affected" interstate commerce. Another way they could claim jurisdiction is by looking at where you source your materials. You're likely going to need steel and welding rods, or wire and gas. Where are those going to come from? If they come from out of state ... you're potentially on the hook. Not sure, but I believe that Montana law was intended to be symbolic, not to be taken literally as a safe haven. |
|
March 14, 2018, 11:50 AM | #6 | |
Senior Member
Join Date: March 16, 2011
Posts: 489
|
Quote:
I do know that the federal govt does not have the manpower or time to go after everybody. They need state enforcement to help. If your state (Montana in this case) won't help them, your chances of being caught/tried/prosecuted are much lower. Disclaimer: I'm no lawyer and do not recommend breaking any law. I won't be testing this out myself. Last edited by TrueBlue711; March 14, 2018 at 12:19 PM. |
|
March 14, 2018, 12:00 PM | #7 | |
Senior Member
Join Date: December 13, 2005
Posts: 4,457
|
Quote:
Apologies. My reference is to 44AMP's post in another thread. https://thefiringline.com/forums/sho...5&postcount=24 EDIT - I am not commenting on the wisdom or justice of the federal restrictions or penalties, and I am not condemning anyone for wanting to skirt them, or highlighting my own virtue. I break laws all the time. However the laws I break only run the risk of a ticket, small fine, court costs and wasted time. The risk one runs with NFA penalties is qualitatively different.
__________________
http://www.npboards.com/index.php Last edited by zukiphile; March 14, 2018 at 03:07 PM. |
|
March 14, 2018, 12:30 PM | #8 | ||
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,468
|
Quote:
Quote:
The state may think it doesn't have to follow federal law, but you have to unless you're very lucky. |
||
March 14, 2018, 12:37 PM | #9 | |
Senior Member
Join Date: December 22, 2015
Posts: 887
|
Quote:
Unfortunately this type of situation is a reflection of the poor state of our current Judiciary system. State laws conflict with Federal laws, laws in general are written that conflict with state or US Constitutions and the people are left without a clear understanding of what's legal and illegal. And unless the US Supreme Court rules on a case specific to the various laws, one cannot be certain how to proceed in their lives unless current constitutional case law has settled the particulars. The best answer is perhaps - proceed at your own risk making a suppressor in Montana. But why should the people have to settle for “proceed at your own risk” being the best advice that can be given regarding compliance and freedom within existing laws specific to the subject? Oh well, I suppose it's better than what people are subject to in other countries. |
|
March 14, 2018, 01:02 PM | #10 | |
Senior Member
Join Date: December 13, 2005
Posts: 4,457
|
BBarn, I didn't take any of your comment as directed at me personally. I do wonder whether a lack of emphasis in my writing invited an ambiguity.
Quote:
I understand the observation of the problem with the current system, but in truth, the federal overreach began well before any of us were born and has continued with public approval since. I don't approve of the decision in Wickard, but it is correct caselaw in our system. Renquist tried to brush its influence back a bit, but in a caselaw system that's like replacing an intermediate stone in a basement foundation - not a small task. As to whether people have fair notice of what the law really is generally, I concur in your point. The volume of law and regulation is so enormous that no one man can possibly know it all, and charging any person with a knowledge of the law as a general matter is a fiction. This gives government leverage over people it shouldn't properly have. On this specific issue though, the "Firearms Freedom Act" is not law in any consequential way. It is a laudable sentiment.
__________________
http://www.npboards.com/index.php |
|
March 14, 2018, 01:41 PM | #11 |
Senior Member
Join Date: December 22, 2015
Posts: 887
|
It would seem to me that passing something like the "Firearms Freedom Act" with only a color of law (based on Wickard) should be considered irresponsible unless there is something in the Act stating it's not really a law. I wonder if the State of Montana will defend it's Act and any Montana citizens charged with federal crimes described in the act should the occasion arise? Perhaps they have an escape clause in the words "under the authority of congress to regulate interstate commerce".
|
March 14, 2018, 01:54 PM | #12 | ||
Senior Member
Join Date: December 13, 2005
Posts: 4,457
|
Quote:
Quote:
My guess on that is only based on how people work. I could be wrong.
__________________
http://www.npboards.com/index.php |
||
March 14, 2018, 02:18 PM | #13 | |||
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
|
Quote:
Seriously, there have been a number of these "Firearm Freedom" laws passed by various States, and not one of them is at all likely to help anyone in court. They are at best politically symbolic. None have lived up to their promise. State nullification of federal law is a chimera.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
|||
March 14, 2018, 02:27 PM | #14 |
Senior Member
Join Date: April 22, 2016
Posts: 2,192
|
You can legally obtain a suppressor for something like $500 with a tax stamp.
Your risking a lot of time in federal prison on a firearm violation over $500? Even if you fought it and won the initial consultation with a lawyer would cost you more than $500. Unless you want to go to prison on federal firearm charges over $500 as some moral stand I would not touch the idea. |
March 14, 2018, 02:39 PM | #15 |
Senior Member
Join Date: December 13, 2005
Posts: 4,457
|
If you are handy, you can get the stamp and build a suppressor with fairly expensive materials for well less than $500. I looked into it last year, and concluded that it wasn't the federal paperwork that would be my greatest obstacle. There is a high degree of precision in making a good one.
__________________
http://www.npboards.com/index.php |
March 14, 2018, 05:00 PM | #16 | |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,468
|
Quote:
|
|
March 15, 2018, 05:41 AM | #17 |
Senior Member
Join Date: December 22, 2015
Posts: 887
|
Even if we assume “don't do it” is the best advice that can be given (and I would agree that it probably is), the basic point remains the same. In each case, a majority of state legislators and a governor signed laws such as this. And yet, it's suggested that it's clear, based on case law, that such laws aren't valid laws. It seems the term reckless jurists would apply in these cases. If a non-jurist were to act in such a manner as this, and endanger another individual in a way that he/she might commit a crime, the non-jurist would likely be considered negligent.
|
March 15, 2018, 09:31 AM | #18 | |
Senior Member
Join Date: October 20, 2007
Location: Richardson, TX
Posts: 7,523
|
Quote:
I think they're better characterized as symbolic. I'm pretty sure that legislative bodies have been passing primarily symbolic and ideological laws for as long as the legislative process has existed. Virtue signaling is not new.
__________________
"Smokey, this is not 'Nam. This is bowling. There are rules... MARK IT ZERO!!" - Walter Sobchak |
|
March 15, 2018, 09:45 AM | #19 |
Senior Member
Join Date: December 2, 2013
Posts: 975
|
A politician's top two priorities are getting elected and winning reelection. All the other issues follow *way* behind...
|
March 15, 2018, 11:22 AM | #20 |
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
The idea of passing a state law is to try to change the public relations and cultural view of a given behavior. In the marijuana case, the sheer number of folks using and the businesses set up in a non offensive manner (meaning not a criminal on the street selling pot from an alley) would make a draconian Federal shut down a major state issue.
Similarly there is significant public opposition to Federal immigration actions (let's not discuss that though - just an example) and local government resistance. That can and will be reflected in the elections. There is no such large constituency for suppressors. In fact, Paul Ryan couldn't wait to ditch the HPA. So you can pass laws for your local choir but that doesn't mean they will have national impact or protect you (as said repeatedly by our experts).
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
|
|