Last year the Montana state legislature enacted a law banning the enforcement by local or state officials of any federal gun control existing or implemented after January 1, 2021. With the law in effect since April 2021, it is now poised to undermine the planned implementation of at least two new unconstitutional federal gun control regulations.
Per President Joe Biden’s executive orders, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is preparing to formally adopt two new rules. One will require the registration of 80 percent lowers, which are unfinished firearm parts that you can use to build your own gun.
The second will impose federal regulations on pistol braces. These devices serve as a stabilizer that enables a shooter to fire with one hand. Pistol braces are popular with disabled people who can’t use both arms. But the feds claim they are a dangerous firearm accessory. There are an estimated 40 million pistol braces in private ownership, with no grandfather clause allowing their owners to keep them without reporting it to the feds.
The feds lack the constitutional authority to regulate either of these firearm accessories. Nevertheless, they are preparing to do so anyway. But for those new regulations to have any meaning, they need to be enforced.
That’s where the Montana law comes in.
The law employs a legal principle known as anti-commandeering or a “refusal to cooperate with officers of the Union,” as James Madison put it in Federalist #46. As Mike Maharrey noted in his report on the law:
The new law prohibits police officers, state employees, and employees of any political subdivision of the state from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of any new “federal ban” on firearms, magazines, or ammunition.
HB258 broadly defines “federal ban” as “a federal law, executive order, rule, regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of an existing law that existed on January 1, 2021, that infringes upon, calls in question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.”
The new law also prohibits them from participating in federal enforcement actions and prohibit the expenditure or allocation of public funds or resources for such enforcement.
Simply put, the state will not cooperate with or assist in the enforcement of these new regulations. Without state assistance, it will be very difficult for the ATF to enforce these new mandates in Montana. Because the ATF relies so heavily on state and local police to help with enforcement, Judge Andrew Napolitano noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce in that state.
While states have utilized anti-commandeering to oppose federal gun control, they vary in their stringency. Montana’s new law, applied to all federal gun control measures implemented after January 1, 2021, was written in a way so that it could withstand potential legal challenges.
The bill was a top priority for the Montana Shooting Sports Association (MSSA) during the 2021 legislative session. President Gary Marbut told TAC that, as it is, federal gun control enforcement is already unpopular among the state’s local police agencies. However, they frequently assist federal partners such as the DEA in drug busts that, in some instances, could one day include the confiscation of unregistered 80 percent lowers or pistol braces, as well as any new federal gun regulations they’re not authorized to enforce.
Under the law, Marbut said police assisting the feds can still participate in a raid conducted for other reasons while insisting all matters regarding gun regulation violations that fall under the state law are handled only by federal agents.
“We’ll have to monitor it and see how it [the new law] plays out,” he said.
He added that directly enforcing the two new ATF rules will be difficult for the feds because of how much they rely on non-federal resources.
The standard practice for federal raids is to coordinate in advance with local police to perform a variety of duties such as creating a perimeter around the scene, stringing tape, and monitoring. Also, if someone is arrested, they are typically housed in a local police jail, a detail that is predetermined to the raid. If the planned raid is conducted specifically for violating the new ATF rules, state and local police can’t assist at all. If the raid occurs anyway, and the person is arrested on charges of violating those rules, the feds still must find their own place to house suspects.
“The feds will figure that out pretty quickly,” Marbut said. “To do a law enforcement action that doesn’t involve locals, they’re going to have to put together a whole different plan of action with anybody they take into custody. They don’t like that. It’s grunt work. They’re not used to it. It’s going to be a bother.”
Theoretically, the feds could take the suspect to a border state like Idaho, provided it’s close enough and Idaho law permits it.
“That may complicate things in terms of extradition,” Marbut said.
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
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