In the early 2010s, two state legislatures – Montana and Wyoming – passed the Firearms Freedom Acts. The Firearm Freedom Acts were intended to invoke the Tenth Amendment to the US Constitution, passed in 1789, which reserved to the States all rights and powers not otherwise granted to Congress by the Constitution. In particular, the Constitution gives Congress power and authority over interstate commerce. Many argue that, under the Tenth Amendment, purely intrastate commerce – commerce wholly within the borders of a state – is beyond the power of Congress to regulate. Thus, the Firearm Freedom Acts were intended to put firearms made in Montana and Wyoming – and kept within the States – outside of the federal gun control laws.
For example, the Montana Firearms Freedom Act (“MFFA”) provides that any firearm or ammunition “manufactured … 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.” See Mont.Code § 30-20-104. The MFFA requires that any such firearm (or ammunition) must be clearly stamped or marked “Made in Montana.”
The Wyoming Firearm Freedom Act (“WFFA”) is similar. It provides that a “personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming is not subject to federal law, federal taxation or federal regulation, including registration, under the authority of the United States congress to regulate interstate commerce.” See Wyo. Stat. § 6-8-404.
The Firearm Freedom Acts were an interesting test for current legal doctrine regarding the Commerce Clause and interesting efforts to protect and expand firearm rights for citizens of those States. For at least 75 years, federal courts – including the US Supreme Court – have held a very expansive view of the Commerce Clause. Some even argue that the Commerce Clause is now essentially irrelevant. Basically, federal courts have said that, under its Commerce Clause power, Congress can regulate intrastate commerce if that intrastate commerce can be said to have an effect on the larger commerce of the United States.
Indeed, under that expansive reading of the Commerce Clause, the MFFA was struck down by the federal Ninth Circuit Court of Appeals sitting in San Francisco. See Montana Shooting Sports Association v. Holder, 727 F.3d 975 (9th Cir. 2013). After the passage of the MFFA, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) wrote and distributed a letter to Montana firearm dealers declaring that the MFFA was not effective to override federal gun control laws.
In response, Gary Marbut and the Montana Shooting Sports Association sued in federal court for a declaration from the court that the ATF was wrong. Marbut had plans to begin manufacturing and selling a .22 caliber rifle called the “Montana Buckaroo.” Reportedly, Marbut had several hundred Montanans who wished to purchase the Montana Buckaroo, but only if Marbut was able to get a court determination that the ATF was wrong.
In the end, the federal courts agreed with the ATF. The Ninth Circuit held that, under US Supreme Court precedents, Congress has the power to regulate any commodity – like firearms – under the Commerce Clause “… if there exists a rational basis for concluding that the activities at issue, taken in the aggregate, substantially affect interstate commerce.” The court held that allowing intrastate manufacture and sale of the Montana Buckeroo would “substantially affect” interstate commerce. As such, the MFFA was held to be preempted by federal gun control laws.
The WFFA has not been tested in court, but, likely it would meet the same fate. It is to be noted, however, that Wyoming is in a different geographic jurisdictional district from Montana. Montana is under the jurisdiction of the Ninth Circuit Court of Appeals, whereas Wyoming is under the jurisdiction of the Tenth Circuit which sits in Denver. It would be interesting to see if a different result was reached by the Tenth Circuit.
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