Much of the odious federal regulation in our country rests on the Commerce Clause of the US constitution – the power granted to the federal government to regulate commerce between the states.
Naively, one might assume that “interstate commerce” involves the movement of goods and services between the states, and the regulation thereof. Practically, the clause has been interpreted much more broadly.
The current wide view of what constitutes interstate commerce took hold in multiple court decisions that arose from New Deal era legislation. The most famously egregious of these cases is Wickard v. Filburn, in which the court upheld New Deal era controls on wheat production. The decision in question found that a farmer growing wheat above his allowable production quota, solely for his own use, was indeed subject to the regulatory power under the Commerce Clause, because the mere existence of his additional wheat altered the national market for wheat.
Based on Wickard v. Filburn, one wonders what the concrete limits of the regulator powers granted by the commerce clause might be. In fact, Supreme Court justices over the years – usually writing for the minority opinion – have posed the same question.
Interestingly, most federal gun control laws are also predicated on the commerce clause. The federal argument is that, since firearms are produced, transported, and purchased between the several states, the federal government has wide ranging powers to regulate their manufacture and sale.
This relationship between firearms, the federal government, and the power to regulate commerce has had some interesting legal tests. In 1995, the court held in United States v. Lopez that the Federal Gun Free Schools Zone Act of 1990, was not constitutional. The law was subsequently revised to include the following language: the firearm in question “has moved in or otherwise affects interstate commerce”.
This presents an interesting question. If a firearm has not moved in or otherwise affected interstate commerce, what federal law would apply?
In fact, Montana attempted to address this question with Montana HB 246, the “Montana Firearm Freedoms Act”. The bill stipulates that any firearm manufactured in Montana and sold to a resident of Montana within Montana state borders necessarily cannot have been participating in interstate commerce, and that therefore, federal firearm laws do not apply. This bill was signed into law in the state of Montana.
The BATFE, the federal agency which oversees all businesses that sell or manufacture guns in the US, took a dim view of this law, and contacted each of the registered firearms sellers in Montana indicating that, Montana law aside, Federal law still applied to them.
There has currently been no federal court test of the Montana law. This is a high-stakes game; anyone brought up on federal gun charges for complying with Montana’s law but violating the guidance of the BATFE would be facing felony charges in federal court. If convicted, they’d never be able to vote, own a gun, or hold most normal jobs ever again.
Is there some other way to own or carry a gun that did not move in or otherwise affect interstate commerce? Possibly. Current federal law allow for home-built guns. Consider the following language from the BATFE’s website:
For your information, per provisions of the Gun Control Act (GCA) of 1968, 18 U.S.C. Chapter 44, an unlicensed individual may make a “firearm” as defined in the GCA for his own personal use, but not for sale or distribution.
The language here is interesting. The BATFE recognizes the right of an unlicensed American (someone without a BATFE manufacturers license) to build his own firearm, so long as it is not a machine gun or otherwise type-restricted device, and, subject to the provision that the builder not build the firearm with the intent to sell or distribute it.
If you build your own gun, in compliance with this portion of federal law, has the gun moved in interstate commerce?
If Wickard v. Filburn weren’t on record, it would seem that an item you build yourself, for your own use, and which is legally disallowed from being sold or transferred to another party, could not possibly be participating in interstate commerce.
In fact, the BATFE has been moving against entities that they see as abusing the home-built weapons exception. Area Armor, a California company, offered the service that allowed you to effectively press “Go” on a computerized milling machine that they owned, and when the machine was done, you’d have the legally controlled part (the lower receiver) of an AR-15 rifle. Many hobbyists and gun enthusiasts build their own firearms now; what Ares Armor did was to build a business around letting gun enthusiasts “build” firearms with a simple button press, and using the machinery and intellectual property of the Ares Armor Corporation. This is legally a grey area; the BATFE is upset about this and has raided the Area Armor headquarters. However, it will take a court case to determine if any laws were actually being broken.
Not everyone can afford a CNC milling machine that can carve out gun parts. But as we’ve seen in the last year, the cost of home 3d printers has dropped enough that hobbyists can reasonably own (or build) their own 3d printer. Additionally, in the last year, we’ve seen the first successful test firings of 3d printed guns, with freely available plans.
And now the litmus test: If you build a 3d printer yourself, and use it to print a gun of your own design, in accordance with federal law – which stipulates that home built guns cannot be sold or distributed – is there any reasonable way to argue that your gun is moving in or affecting interstate commerce? And, if it isn’t, are you and your 3d printed gun subject to Federal laws that rely on the Commerce Clause – like the amended Gun Free School Zones Act?
We won’t know until someone lands in court because they were carrying a self-built gun in a school. But, I expect we’ll find out in the next 10 years.
The stakes will be high. Any individual charged with a federal gun crime stands to lose everything. But if the court decides against the government, federal gun laws will largely become irrelevant.