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Old March 14, 2018, 08:51 AM   #1
1972RedNeck
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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?
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Old March 14, 2018, 09:00 AM   #2
Lohman446
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Quote:
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?
Not a lawyer. Are you willing to risk your freedom over it? You can still be tried in federal court for violation of federal law (even marijuana)
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Old March 14, 2018, 09:02 AM   #3
zukiphile
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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.
I agree with the logic of this language, but it does not correctly reflect current constitutional case law on this point.

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.
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Old March 14, 2018, 09:42 AM   #4
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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.
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Old March 14, 2018, 10:46 AM   #5
Aguila Blanca
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Quote:
Originally Posted by 1972RedNeck
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?
Slim.

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.
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Old March 14, 2018, 11:50 AM   #6
TrueBlue711
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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.
Agreed here. So with that same logic, I would think making one silencer for your bolt action rodent rifle to use on your own property won't get you in trouble with the feds. But if you make multiple, use them openly in public ranges and especially if you sell them...that could get you some federal attention.

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.
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Old March 14, 2018, 12:00 PM   #7
zukiphile
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Quote:
Originally Posted by TB711
So with that same logic, I would think making one silencer for your bolt action rodent rifle to use on your own property won't get you in trouble with the feds.
Review 44AMP's vignettes above, and ask yourself whether that logic is a good guide for avoiding life ruining fines, possible prison time, and a felony conviction.

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.

Last edited by zukiphile; March 14, 2018 at 03:07 PM.
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Old March 14, 2018, 12:30 PM   #8
Aguila Blanca
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Quote:
Originally Posted by 1972RedNeck
If we look at the topic of Marijuana, States don't have to follow federal law...
BTW -- regardless of what your state's laws say, if you use marijuana even occasionally you are prohibited from possessing firearms under federal law, Look at question 11.e of the Form 4473, and then read the instructions for that question.

Quote:
Generally, 18 U.S.C. 922(g) prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a felony in any Federal, State or local court, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice; is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance; ...
https://www.atf.gov/firearms/docs/44...53009/download

The state may think it doesn't have to follow federal law, but you have to unless you're very lucky.
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Old March 14, 2018, 12:37 PM   #9
BBarn
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Originally Posted by zukiphile View Post
I agree with the logic of this language, but it does not correctly reflect current constitutional case law on this point.
This is not meant to be critical of zukifile's statement or similar statements from others (they are simply trying to be helpful messengers), but is rather just an expression of some frustration on the matter.

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.
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Old March 14, 2018, 01:02 PM   #10
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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:
Originally Posted by BBarn
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.
It is clear that no state code can effectively overrule the Sup Ct decision in Wickard v. Filburn (1942). Just keeping the objects in which one deals within the borders of a state doesn't mean that Congress can't regulate it as interstate commerce. Everyone can be sure that breaking a federal law by doing the things described in the Montana code above will expose an individual to the federal penalties.

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.
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Old March 14, 2018, 01:41 PM   #11
BBarn
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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".
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Old March 14, 2018, 01:54 PM   #12
zukiphile
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Quote:
Originally Posted by BBarn
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.
That's not an unreasonable conclusion. I can imagine a state legislator who is told by hundreds of constituents that he needs to "do something" about federal overreach voting for this just for the symbolism. In this imaginary legislator's defense, he does have a sitting Sup. Ct. justice who agrees with him and the text of the Constitution itself.

Quote:
Originally Posted by BBarn
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?
I don't wonder that. My imaginary legislator already got the symbolic value from voting for this and it didn't cost the state anything. Squaring off against the DOJ would be real and expensive.

My guess on that is only based on how people work. I could be wrong.
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Old March 14, 2018, 02:18 PM   #13
Frank Ettin
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Quote:
Originally Posted by 1972RedNeck
....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?
I hope you like federal prison.

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.
  1. The Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added):
    Quote:
    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.
  2. There's some 200 years of Supreme Court precedent rejecting State nullification of federal law:

    • United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)

    • Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)

    • Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

    • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

    • Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)

    • Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)

    • Prigg v. Pennsylvania, 41 U.S. 539 (1842)

    • Ableman v. Booth, 62 U.S. 506 (1859)

    • Cooper v. Aaron, 358 U.S. 1 (1958)

    • Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

  3. The Ninth Circuit has specifically ruled against Montana in a "firearm freedom law" case, Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).

  4. A State may decide not to enforce federal law or assist with the furtherance of federal policy (Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)), but a State may not nullify federal law; and the federal agents may still enforce federal law without a State's help.

  5. Since you mention state marijuana laws, see Willis v. Winters, 253 P.3d 1058 (Or., 2011) in which the Oregon Supreme Court ruled that a Sheriff was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. But the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):
    Quote:
    ...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...
  6. A Kansas law similar to the Montana law cited in the OP didn't work for Shane Cox and Jeremy Kettler who made suppressors in Kansas and were then were convicted in federal court in Kansas for violating the NFA.
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Old March 14, 2018, 02:27 PM   #14
Lohman446
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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.
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Old March 14, 2018, 02:39 PM   #15
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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.
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Old March 14, 2018, 05:00 PM   #16
Aguila Blanca
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Quote:
Originally Posted by BBarn
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.
But who says "Proceed at your own risk" is the best advice that can be given? The legal system in this country has been in place for over 200 years. This thread alone contains several posts explaining why a state law doesn't override or invalidate federal law. It seems to me the best advice relating to the question is "Don't do it," and I think several people have provided that advice.
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Old March 15, 2018, 05:41 AM   #17
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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.
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Old March 15, 2018, 09:31 AM   #18
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Quote:
Originally Posted by BBarn
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.
I don't think that these sorts of laws necessarily qualify as reckless.

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.
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Old March 15, 2018, 09:45 AM   #19
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Originally Posted by carguychris View Post
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.
A politician's top two priorities are getting elected and winning reelection. All the other issues follow *way* behind...
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Old March 15, 2018, 11:22 AM   #20
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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).
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