Folks are wondering what it’s all about. It’s about setting up a potential legal challenge and, as our governor said, has little to do with guns. I am not a lawyer so take the following with a giant grain of salt. Most folks seem to think the bill won’t really accomplish much, at least in the short term. And they’re probably right. The bill is about establishing a legal challenge to the commerce clause. Currently, there may as well not even be a commerce clause because the courts have ruled that, essentially, anything that is involved in interstate commerce even incidentally can be regulated. And that includes guns. They are regulated under tax law and as part of congress’ power to regulate interstate commerce. For instance, let’s say you mined ore from the earth, on your land, with your bare hands and made a machine gun. In theory, that’s lawful because US firearm laws specify the items to be regulated had to be involved in interstate commerce. But in reality, you’re looking at ten years in club fed despite not really being involved in interstate commerce in any significant manner. The clause may as well not exist. And this doesn’t just apply to guns but other things as well. Couple that with the tenth amendment, and you have the basis for a challenge. Shane wonders why guns and not other stuff. My guess (and I’m no lawyer) is because there are enumerated constitutional protections to gun ownership.

So, what will the result be? At some point, a group of smart crackers is going to create a very narrowly defined case to challenge a federal gun control law within the parameters of the new law. In Montana, which has a similar law, a group of people are going to make a single shot, 22 rifle without a license. Then send ATF a letter asking if they can sell it. When ATF says no, they will sue.

A few interesting bits about Tennessee law is that NFA items are illegal in Tennessee but it is an affirmative defense to possession of these unlawful items that you have paid an NFA tax stamp and gone through the NFA process. So, when R. Neal says:

The gun fetishists want to legally own sawed off shotguns and silencers and armor piercing bullets and stuff without having to apply (and pay for) a federal license. Fortunately, machine guns and grenade launchers and nuclear weapons and the like are excluded.

He’s likely wrong. Tennessee law still says that possession of shotguns, suppressors, and stuff is illegal. Though I can’t find anything in TN law about armor piercing ammo.

One interesting bit is that the TFFA does define sound suppressors as accessories and therefore exempt from federal rules. But TCA says possession of silencers is illegal, with going through the federal process being an affirmative defense. So, there is a bit of inconsistency there. And I don’t know that it matters if there is ever a distinction drawn between sound suppressor and silencer. I doubt it. But I’ll let a lawyer deal with the inconsistency.

Also, Tennessee does its own background checks and does not use the federal NICS system. So, gun sales are still subject to background checks.

So, seems a lot of bluster for nothing, as of now. That could change though, with an effective legal challenge.

Posted in uncategorized on June 16th, 2009 by SayUncle | RSS 2.0 |