Legal Issues

Montana Seeks to Protect 2A by Defying Federal Law

The Second Amendment is my gun permit

The 2016 elections grow closer all the time, however, there is no guarantee we will elect a pro Second Amendment presidential candidate. We can only hope—and stack the deck in our favor at a local level. The NRA and others have done a tremendous job of protecting our rights at a national level. As a result, the antis are changing tactics and taking the fight to the local level. We must do the same; not just with strong Second Amendment candidates, but with legislation that protects our rights regardless of who controls the White House or the local legislature.

The Second Amendment is my gun permit
The Second Amendment is in serious danger if rogue lawmakers are allowed to run amok unbridled. Montana residents are prepared to fight laws with the law.

While I would like to say that I am ahead of the curve and figured this out on my own, the truth is that the good people of Montana are way ahead of the pack when it comes to protecting their Second Amendment Rights. In 2013, Montana citizens sent a bill to the Gov. Steve Bullock. The bill sought to prevent local police from enforcing federal bans on semiautomatic weapons. While the people supported it, the governor did not and struck it down with a veto.

The veto may have killed the bill, but not the idea. Recently, Republican Rep. Art Wittich of Bozeman introduced House Bill 203 in the House Judiciary Committee. He not only wants to reintroduce the bill, he wants to expand its scope!

“What I’d like to see is that the bill be broadened by removing the references to semi-automatic weapons,” Wittich said. “The intent of this was that anything that impairs Montanans’ rights to keep and bear arms by the federal government… is something that we should not be co-opted into as far as enforcement.”

Wittich’s bill bars local law enforcement from enforcing any federal laws banning semi-automatic weapons, and it goes further. Wittch also spells out provisions that would mandate county attorneys prosecuting those enforcing such laws. The laws would be set directly by the people most affected, not the federal government.

The proposed law is not without its critics and perhaps for good reason. For example, a police officer arresting someone illegally selling a semiautomatic weapon could be arrested and charged with the crime of enforcing federal gun laws. Jim Smith with the Montana Sheriffs and Peace Officers Association said the bill, if passed, would put law enforcement in the position of violating laws they have sworn to uphold.

“I think from the sheriff’s perspective this is a misguided effort and an ill-advised attempt to send a message to the federal government,” Smith said, adding that sheriffs can stand up to what he calls federal government overreach with the authority they already possess.

BIll_of_Rights
Different articles or clauses within the Constitution and Bill of Rights may be interpreted differently by opposing forces.

President Obama, among others, proposed new gun laws that include bans on the nebulous and misleading term of “military-style assault weapons.” There is also the concern of the President’s threat to use his phone and pen. Other opponents said this bill would put the justice system in disarray in an attempt to usurp federal law. Gary Marbut, president of the Montana Shooting Sports Association, supports the bill correctly pointing out that prior U.S. Supreme Court rulings hold that Congress cannot commandeer the resources of state and local governments. He went on to be quoted as saying, “If the Senate were to ratify that then the federal government would be imposing all kinds of new firearms restrictions that are just not consistent with Montana culture.”

Out of Bounds?

Would the proposed Montana law be ground breaking or upset the law enforcement apple cart? Not really. In fact, there are more and more examples of states enacting local laws to reject or ignore federal laws. Recent examples include gun control, marijuana use, health insurance requirements and identification standards for driver’s licenses.

That leaves you—the reader and potential voter—to weigh in with your opinion. We all demand the protection of our Second Amendment rights. However, there is the Supremacy Clause: Article Six, Clause 2 of the United States Constitution that establishes the United States Constitution, federal statutes, and treaties as “the supreme law of the land.” It provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state.

Where do we draw the boundary lines? Montana seems to be doing it right, but let’s hear your thoughts in the comment section.

[dave]

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Comments (21)

  1. Folks: it appears that most of the people who have commented on this article concerning the second amendment want our right to bear arms not to be infringed by our government as it is written in the U.S. Constitution. I believe that attempts to pass laws to prevent the federal government from interfering with our second amendment rights is because we do not trust our government. Time and time again the government has displayed its contempt toward the people of this country to advance their own agenda. In some respects its our fault, we do not vote them out of office when they violate the constitution. Now if they ( the federal or State government) come after our guns will we fight, hard to say, some few might, but will all of us resist. The federal and some state governments need to be reined in, and only WE THE PEOPLE can do that. Respectfully Submitted …

  2. Here in California, the Marxists have enacted Sanctuary cities for illegal aliens, just like the MT law for 2A. We have button, 10rd mags on AR15s. No concealed carry, no open carry, even when bow hunting. No lead ammo. Gun rights evaporating fast. Don’t wait until it’s too late. Good law.

  3. The A fore mentioned Supremacy clause is correct. Not that I’m a school teacher or any thing of the sort. But I don’t think our fore fathers ever envisioned a federal government getting to be the huge monster it has become. And especially during the reign of the current ruler (yes I said what I meant). The fed has gotten it’s tentacles into almost every part of our lives. Soon we wont be the people any longer, we’ll be the gov’s people to done with and too as the rulers see fit. We have to stand and change it before we are all chopped off at the knee’s.

  4. McRuger-you have hit it square on .You have many brothers here in N.C.who feel exactly as you do. We are right beside you brother!

  5. This country has become a dictatorship with the dictator and his court jesters wiping their butts with the Constitution. WHAT part of it don’t people understand? (O, I forgot , if it’s not on Facebook its’ not read)

    1. Nighthawk. This country has become a dictatorship because WE have allowed it to happen. WE sit on our hands and bitch and THEY continue to chip away. It’s not Just the 2nd Amendment it is every aspect of our freedom. In the blink of an eye it will be too late to turn it around as WE continue to sit and bitch. Our children are being brainwashed and our elected officials serve only themselves. As Reagan said, We are one generation away from having to look back on a time when We were free.

  6. States and counties can play all the games they like.. The fact is this: any change or qualifier that restricts the right to keep and bear arms is prima facie evidence of violation of the Constitution. We should not allow anything that restricts that right. Little victories for the gun grabbers add up.
    The founder foresaw the problems we would have anti constitution crowd and gave us guidance.

    “The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens, from keeping their own arms…”
    — Samuel Adams

    “The governments of Europe are afraid to trust the people with arms. If they did, the people would certainly shake off the yoke of tyranny, as America did.”
    — James Madison

    “A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”
    — George Washington

    “The constitutions of most of our States assert that all power is inherent in the people; that… it is their right and duty to be at all times armed.”
    — Thomas Jefferson

    “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in their government.”
    — Thomas Jefferson

    “The constitution ought to secure a genuine [militia] and guard against a select militia. … To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
    — Richard Henry Lee

    “Americans need not fear the federal government because they enjoy the advantage of being armed, which you possess over the people of almost every other nation.”
    — James Madison

  7. No such laws are needed. State and local officers DO NOT HAVE the authority to enforce federal laws, so why all the hubbub? They take an oath to uphold and defend the Constitution of the state and of the United States, and no where in the US Constitution is there anything other than the 2nd Amendment pertaining to firearms. State and local officers cannot enforce federal statutes passed by Congress. Only federal officers can do that. No “state nullification laws” are needed.

  8. simple fact is until our constitution is amended no arms law is legal.

    NO COURT – no one – SHALL INFRINGE our RIGHT.

    You all ever hear of NUREMBERG ?

  9. Gentlemen and Ladies-Welcome to the mid-1930s.Its not Montana but it is Berlin and the elected Leader of the German Socialist Party(Nazi)has just issued an edict.All Jews in Germany are forbidden to possess firearms.History is just repeating itself with a declared anti-American President.The American Founding Fathers have written your RESPONSIBILITY to resist.If you dont you risk ending up like German Jews or Stalins political enemies.

    1. This really scares me. It its just like 1930’s Germany. The idiot we have sits on his thrown and issues edicts – AND WE LET HIM!

      We now have 2 years to take control of our country and run run these assholes out of it. It’s up to us.

      I carry 24/7. Keep a 12 ga by my bed and signs at all entry points to my home that if you enter illegally you WILL get shot.

      What say we take our America back?

  10. I am unaware of any “federal ban on semiautomatic weapons.” Please enlighten me. The federal government does tax automatic weapons (and silencers and sawed-off shotguns, etc.), but I am taken by surprise by this thing about banning semiautos.

    The US Supreme Court affirmed in Heller that every law-abiding citizen has the right to have an use any firearm “in common use at the time.” We, the People determine what firearms we may use — not the federal government, and not the state governments.

    So, I am confused by this huge gap between what I KNOW the law is, and what these folks in Montana seem to think the law is.

    1. Pete, I agree. The article would have been more enlightening had it pinpointed just which federal anti-semiautomatic laws were the ones in question.

      If there is a federal law now in place that “bans” semi-automatic firearms, a lot of us will be going broke trying to defend ourselves against having these weapons confiscated and our being thrown in jail for having broken the law.

      At this point, it appears that the people of Montana have the right to be concerned about having their 2A rights violated by the federal government, but shucking these rights onto the backs of the local cities and counties to protect owners of semiautomatic rifles is not the way, and that any nationwide ban that exists (and this is questionable) now or in the future should be fought in federal courts.

      Again, the question is: just what federal laws against semi-auto firearms are under the spotlight here. Also, the term, “military-style assault weapons” to my knowledge has never been adequately defined and is open to question. Wittich’s bill is an admirable attempt to inoculate Montana gun owners from the anti-gun disease spread by the federal government, but methinks it might be nothing more than political posturing by Wittich.

    2. Guys come one. The article was heavily prefaced in the first few paragraphs making it very clear this was all being done in a preparatory sense. No where did the author ever indicate there were any current federal bans.

    3. G-Man,

      So that just makes it even more stupid. We should fight the fights that actually exist, TODAY, and not waste scarce resources fighting a purely hypothetical / imaginary possibility.

      And, BTW, we already have a law prohibiting local law enforcement from enforcing unconstitutional federal laws. We call it the 10th Amendment.

    4. The 9th and 10th Amendments are dead letters according to the Supreme Court’s rulings during the 20th century. What the clear intent of those two articles are, have been found to be undefinable by the highest court in the land.

      As for local enforcement of Federal law; Local law enforcement has been very enthusiastically helping Federal law enforcement confiscate money and property under Federal drug laws that require no conviction or even an arrest, in return for a huge cut of the money and property as a bounty for the assistance they provide the DEA. Again, the Supreme Court has ruled those laws constitutional in that they do not violate the “due process” clause of the 5th Amendment. In my home State, laws had to be passed to force Local law enforcement to enforce State law – which includes due process protections – instead of calling in the DEA. DEA bounties go straight to the local agency that called them in, where as the State law only provided a 20% equivalent of that potential amount to local government and the remainder goes to the State’s education fund.

      In accordance with Article VI of the Constitution, any treaty signed by the President and ratified by the Senate is the Supreme law of the land, and our President has signed a United Nations Treaty banning private ownership of small arms.

      As with all levels of government, it is the integrity of people who are elected, appointed, or hired that determines what is legal or constitutional and whether laws are enforced fairly and impartially. Our own history has shown that a government of the people, buy the people, and for the people can go out of bounds very quickly when government employees blindly follow the orders of just one person in a position of authority; the greater the authority the worse things can go badly for the people.

    5. @PeteDub: I don’t know how old you are, but most of us here have already lived through one Federal Assault Weapons Ban, which was far from – as you put it, “purely hypothetical / imaginary possibility”.

      The Federal Assault Weapons Ban was very real for 10 years as passed by a Democrat President and Democrat controlled Congress in 1994.

      The only reason it was allowed to expire (sunset) 10 years later was that for an uncommon moment in history the Republicans actually held both chambers of Congress and the White House at the time it was set to expire in 2004. If not for that rare alignment of the moon, stars and planets, you would currently be living under a Federal Assault Weapons Ban as we speak.

      Unless one lives under a rock, any dedicated pro-gunner already knows there is currently a very real and heavily financed effort to reinstitute that Federal ban or a form of it; which is being steered by some very prominent and influential politicians with a proven track record to prevail. Especially given that the ban had already existed for so long before, makes it much easier to convince legislators to bring it back as compared to introducing totally new legislation.

      Did you miss Sen. Dianne Feinstein (the author of the first successful Federal ban) introducing her second legislative ban as recently as 2013? And though her measure failed, the fact that it even made it to the floor of the Senate for a vote should be a stark realization of just how delicate the balance leans towards another ban.

      And then consider the other 9 pieces of Federal anti-gun legislation that made it to a vote in just the past 2 years… heck even the 2013 Federal expansion effort of background checks only lost by 8. That is too close in my book. Keep in mind, no one thought ObamaCare would ever become a reality either.

      No sir, there is nothing “purely hypothetical” or of an “imaginary possibility” about this very real and very serious threat. I’m sure you felt the states that passed laws to ignore ObamaCare prior to its passage were wasting resources as well – turns out their foresight wasn’t such a waste after all.

      As for your comment expressing the Tenth Amendment’s control over local law enforcement – you appear to completely misunderstand its purpose. The amendment provides for nothing additional, and was merely added as clarification and reassurance on the relationship between the States and the new Federal government. Nowhere does this amendment provide for protections “prohibiting local law enforcement from enforcing unconstitutional federal laws” in any way.

      Aside from actually reading the amendment, further proof lies in the fact that your local law enforcement could never have enforced a single statute of the Federal Firearms Act of 1938 or the Gun Control Act of 1968 given they are in direct conflict with the Second Amendment which specifies the right to bear arms “…shall not be infringed”. That’s in any way, shape, or form and not just sometimes, or kind-of-sort-of when a cop feels like it or not, that’s 100% all the time. And yet despite this, those laws are in fact enforced and used by local law enforcement every day to incarcerate citizens.

    6. It is great to be vigilant against usurpation of our gun rights, but that vigilance must be rational.

      The hypothetical ban on semi-autos has already been declared unconstitutional, in the Supreme Court’s decision in Heller where the Court held that the 2nd Amendment protects any firearm “in common use at the time.” This is not really news, because the “in common use at the time” standard was developed in the Miller case in 1939.

      Given that the semi-auto Ruger 10/22 is the 2nd most common long arm in history (after the Winchester Model 94), and the semi-auto AR-15 (with its standard-capacity 30-round mag) is the third most common long arm in history, a semi-auto ban would be flatly unconstitutional under the Miller standard as applied and affirmed in Heller. Indeed,a restriction on semi-autos would not even be within the government’s scope of power to regulate firearms as the Supreme Court outlined that scope in Heller: (a) reasonable restrictions on commercial sales; (b) keeping guns out of the hands of felons and the mentally ill, and (c) keeping guns out of sensitive places like schools and courthouses [where adequate security is provided].

      The AWB obviously was flatly unconstitutional under Miller — and Clinton and Feinstein KNEW IT. They just DARED us to do something about it. They actually thought that the sunset provision was to their political advantage, because it would “force” a renewed political argument on the gun-rights issue that they assumed would be to their political advantage. Those of us who actually care about freedom need to be diligent to ensure that Clinton and Feinstein are wrong on that point, by NOT pissing off the rest of the People by doing stupid spit.

      Rather than taking the weak and politically wrong approach of telling local cops they cannot enforce a federal law because we do not like the federal law, for example, the high-road vigilant approach is to sue the living daylights out of local officials if they try to enforce an unconstitutional law. Under 10th Amendment principles, Congress has given us that power in 42 USC 1983. If anyone acting “under color of state law” attempts to deprive us of our federal right to keep and bear arms, 42 USC 1983 gives us the right to drag them into federal court for a federal ass-whipping.

      Rather than worrying about what Congress might do in the future should the Dems regain control, our biggest threat right now is what could happen during the remaining time before BHO gets the boot. 4 out of 9 Supreme Court justices have gone on record to claim that there is no private right to keep and bear arms under the 2nd Amendment. So, we need to be very vigilant in not giving those 4 the argument they use in their effort to pull another vote over to their side — which is that gun-rights advocates are all a bunch of paranoid nutcases.

      The BS proposed in MT gives the wrong impression that the gun-rights cause is not a just cause, because telling cops not to enforce a law is patently wrong to most rational people. The Open Carry movement is another example of how people who THINK they are supporting gun rights actually put gun rights at risk.

      It is all well and good to fight for gun rights, but to be effective one must understand what the fight actually IS. Unless and until the lefties are able to get another vote on the Supreme Court to overcome the Heller decision, WE have the high road in using EXISTING law (Heller, Miller, 42 USC 1983) to fight for our rights and we should use that high road to show the general public that we ARE right because the law is on our side. We also need to hammer home on the FACTS showing that expanded gun rights have resulted in HUGE decreases in violent crime.

      In every effort to support gun rights, we need to start from a position of strength (the law and the facts are on our side), not a position of weakness (we are going to “show you”).

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