Journal Sylver Dragon's Journal: Fun under the Big Sky 5
In case you didn't know, I'm a supporter of Gun Rights and a proponent of expanded State's Rights. The former seems to be gaining traction in the US, while the latter is still a bit of a joke. At the very least, gun ownership seems to be surging these days. I guess that's one type of Change I Can Believe In.
That said, it looks like the Montana State House is trying to setup a showdown on State's Rights vs. Federal Powers by directly challenging the right of the Federal Government to regulate intrastate commerce with regards to firearms (pay particular attention to the word intrastate). Over the registration requirement for firearms manufactured wholly in, and for sale an use in Montana.
Assuming that the Montana State Senate passes the bill as well, which I'm guessing is likely; and that the governor signs it, again, I think this is likely; we may well see a court battle over the reach of the Interstate Commerce Clause come from it.
Directly from HB246: Upon written notification to the Montana attorney general by a Montana citizen of intent to manufacture a firearm...the attorney general shall seek a declaratory judgment from the federal district court for the district of Montana that [sections 1 through 7] are consistent with the United States constitution.
So, basically, as soon as a Montana resident writes to the Montana State Attorney General saying, "I want to manufacture a firearm wholly in Montana for use and sale exclusively in Montana. And I do not want to register it with the Federal Government." The state's Attorney General is required to start a court case seeking a declaratory judgment that this action is legal, or at least, Constitutional. If there isn't already a letter drafted like this, I have no doubt that plenty will be drafted and sent within seconds of this bill passing.
Now, as to where it goes from there is anybody's guess. I'm going to assume that the folks behind this bill did their homework and that the current Attorney General of Montana (AG from here on) supports this bill, otherwise it's ultimately a counter-productive move. All it would take is for the current AG to give a less than whole-hearted attempt in court and this bill would be quickly gutted.
I think one can assume that this would quickly hit the Ninth Circuit and that is a questionable prospect at best. The Ninth Circuit has not, in the past, been a friend of gun owners. However, they have been a friend of the State's Rights idea. So, which way would they go, you got me. Honestly though, whichever why it goes, I suspect that it will be appealed to the US Supreme Court.
At the SCOUTS level, it gets interesting. We know, from the recent DC v. Heller decision that the majority of the SCOUTS support the individual view of gun rights. However, if we go back a bit to Gonzales v. Raich we also have support for the expanded Interstate Commerce Clause which has been around since FDR tried packing the Supreme Court.
Just to guess, here's what I see (a Yes means they would support HB246 a No means they would not):
Roberts - Was in the Majority on Heller, was not around for Gonzales. I'm guessing he might support HB246 but I'm not sure. From what I read, I think he'd be a Yes.
Stevens - In the Majority on Gonzales; in the Dissent on Heller. I think he's a pretty clear No for HB246.
Scalia - Concurred with the Majority on Gonzales, and in effect agreed with the expanded Interstate Commerce Clause. He was in the Majority on Heller. I suspect he will pretty much re-write his Gonzales decision for HB246, so he's a No.
Kennedy - In the Majority on Gonzales, in the Majority on Heller. Bit of a crap shoot on him. He's a Regan appointee, and seems to support State's Rights. For the time being, I think he'd end up being a Yes on HB246.
Souter - In the Majority on Gonzales, in the Dissent on Heller. Unless he suddenly becomes a conservative again, I think he's a No.
Thomas - Dissented on Gonzales, was in the Majority on Heller. Given his Dissent on Gonzales revolved around the expanded Commerce Clause "have no meaningful limits". I think he's a Yes.
Ginsburg - In the Majority on Gonzales, In the Dissent on Heller. Again, a safe No, I think.
Breyer - In the Majority on Gonzales, Dissented on Heller. Another safe No.
Alito - Not involved in Gonzales, in the Majority on Heller. He wrote an opinion in United States v. Rybar which would seem to put him in the Yes side.
So, to tally it up, I have:
Yes - Roberts, Kennedy, Thomas and Alito
No - Stevens, Scalia, Souter, Ginsburg, Breyer
Not exactly a hopeful outlook, but I still think this would be a fun showdown. I think the hope on the Yes side would be that either Souter has a sudden bout of conservatism, or that Scalia decides that this case is closer to United States v. Lopez and ignores his decision in Gonzales. Either way, it could be fun to see the national conversation about this one.
That said, it looks like the Montana State House is trying to setup a showdown on State's Rights vs. Federal Powers by directly challenging the right of the Federal Government to regulate intrastate commerce with regards to firearms (pay particular attention to the word intrastate). Over the registration requirement for firearms manufactured wholly in, and for sale an use in Montana.
Assuming that the Montana State Senate passes the bill as well, which I'm guessing is likely; and that the governor signs it, again, I think this is likely; we may well see a court battle over the reach of the Interstate Commerce Clause come from it.
Directly from HB246: Upon written notification to the Montana attorney general by a Montana citizen of intent to manufacture a firearm...the attorney general shall seek a declaratory judgment from the federal district court for the district of Montana that [sections 1 through 7] are consistent with the United States constitution.
So, basically, as soon as a Montana resident writes to the Montana State Attorney General saying, "I want to manufacture a firearm wholly in Montana for use and sale exclusively in Montana. And I do not want to register it with the Federal Government." The state's Attorney General is required to start a court case seeking a declaratory judgment that this action is legal, or at least, Constitutional. If there isn't already a letter drafted like this, I have no doubt that plenty will be drafted and sent within seconds of this bill passing.
Now, as to where it goes from there is anybody's guess. I'm going to assume that the folks behind this bill did their homework and that the current Attorney General of Montana (AG from here on) supports this bill, otherwise it's ultimately a counter-productive move. All it would take is for the current AG to give a less than whole-hearted attempt in court and this bill would be quickly gutted.
I think one can assume that this would quickly hit the Ninth Circuit and that is a questionable prospect at best. The Ninth Circuit has not, in the past, been a friend of gun owners. However, they have been a friend of the State's Rights idea. So, which way would they go, you got me. Honestly though, whichever why it goes, I suspect that it will be appealed to the US Supreme Court.
At the SCOUTS level, it gets interesting. We know, from the recent DC v. Heller decision that the majority of the SCOUTS support the individual view of gun rights. However, if we go back a bit to Gonzales v. Raich we also have support for the expanded Interstate Commerce Clause which has been around since FDR tried packing the Supreme Court.
Just to guess, here's what I see (a Yes means they would support HB246 a No means they would not):
Roberts - Was in the Majority on Heller, was not around for Gonzales. I'm guessing he might support HB246 but I'm not sure. From what I read, I think he'd be a Yes.
Stevens - In the Majority on Gonzales; in the Dissent on Heller. I think he's a pretty clear No for HB246.
Scalia - Concurred with the Majority on Gonzales, and in effect agreed with the expanded Interstate Commerce Clause. He was in the Majority on Heller. I suspect he will pretty much re-write his Gonzales decision for HB246, so he's a No.
Kennedy - In the Majority on Gonzales, in the Majority on Heller. Bit of a crap shoot on him. He's a Regan appointee, and seems to support State's Rights. For the time being, I think he'd end up being a Yes on HB246.
Souter - In the Majority on Gonzales, in the Dissent on Heller. Unless he suddenly becomes a conservative again, I think he's a No.
Thomas - Dissented on Gonzales, was in the Majority on Heller. Given his Dissent on Gonzales revolved around the expanded Commerce Clause "have no meaningful limits". I think he's a Yes.
Ginsburg - In the Majority on Gonzales, In the Dissent on Heller. Again, a safe No, I think.
Breyer - In the Majority on Gonzales, Dissented on Heller. Another safe No.
Alito - Not involved in Gonzales, in the Majority on Heller. He wrote an opinion in United States v. Rybar which would seem to put him in the Yes side.
So, to tally it up, I have:
Yes - Roberts, Kennedy, Thomas and Alito
No - Stevens, Scalia, Souter, Ginsburg, Breyer
Not exactly a hopeful outlook, but I still think this would be a fun showdown. I think the hope on the Yes side would be that either Souter has a sudden bout of conservatism, or that Scalia decides that this case is closer to United States v. Lopez and ignores his decision in Gonzales. Either way, it could be fun to see the national conversation about this one.
Fascinatin' (Score:2)
To add a bit of data that I'm sure you considered - but didn't say that I saw - by the time this hits the Supremes it seems likely that Ginsburg will have... departed. Stevens is awfully long in the tooth, and there's been rumor that Souter is looking longingly at the exit door.
Re: (Score:2)
Sadly, I have to agree with all of the above.
Not gonna fly (Score:2)
I personally do not hunt or own a firearm, but I have no problem with anyone who is legally able to do so. However, there is a very valid reason the firearms issue is a federal issue and not a states issue: exploitation. Sure, the folks can SAY they'll only sell the gun for in-state use but how do we know that is the case? They can just as easily sell a
Re: (Score:2)
I won't argue that there are people who will abuse their freedoms on a regular basis. That is one of the downfalls of living in a free society some people will use those freedoms to engage in criminal acts. Thus the reason that a police force is necessary. We need some mechanism to investigate crimes after the fact. But, I would be very s