Firearms Freedom Act
This page is for Firearms Freedom Act bill sponsors and supporters.

FFA Talking Points
- Primary purpose.  The FFA is primarily a states' rights challenge to the power of Washington to regulate everything under the guise of regulating commerce "among the several states."  See background on the commerce clause at:
http://FirearmsFreedomAct.com/what-is-the-commerce-clause/

- State power.  The federal government was created by the states to serve the states and the people.  It's time for the states to begin drawing boundaries and clearly demarked lines for their servant.  The FFA is such a boundary.
Useful line:  The states created the federal government.  It's time for the states to get their creature on a leash.

- Court challenge purpose.  One purpose of the FFA is to set up a court challenge to federal commerce clause power.  A lawsuit for this challenge and to validate FFA principles has been filed in Montana.  FFAs in other states lends impetus to this lawsuit.  Private entities in other states with enacted FFAs may file their own such lawsuits.

- Litigation costs.  The Montana lawsuit to challenge federal commerce power is being prosecuted privately, at no cost to state taxpayers.  The federal government never sued any states over states' Real ID rejection or over state-adopted medical marijuana laws.  It would be extremely irregular for the feds to sue a state over an adopted FFA.  Under the usual, Montana-model FFA, there is no requirement or even authority for a state enacting an FFA to sue the federal government.  Thus, any litigation over an FFA wopuld NOT be between and adopting state and the federal government.  Any such litigation would almost certainly follow the Montana experience, private entities suing the federal government, at zero taxpayer expense, to validate the states' rights principles of the FFA.

- Jobs creation.  Once validated in court, the FFA will open doors for in-state business and jobs in manufacture of state-made and retained firearms.

- Existing manufacturers.  The FFA will not affect existing firearm manufacturers.  Those manufacturers are already federally licensed for an interstate market essential to the business model of those manufacturers.

- Judicial precedent.  Although judicial commerce clause precedent may not favor the FFA concept, that is exactly the reason to pass the FFA and challenge precedent.  Precedent is never revised until it is challenged.  The Supreme Court commonly overturns precedent.  Revising precedent may be the primary function of the Supreme Court.
Useful line:  The purpose of the FFA is to change the status quo, not to conform to the status quo.

- Emerging Consensus.  "Emerging consensus" is judicial jargon for widespread public opinion, something the Supreme Court notices.  The nationwide introduction of FFAs is emerging consensus.
Useful line:  Emerging consensus means, "There are mobs of peasants at the palace gates with pitchforks and torches so we'd better pay attention to what they want."

- RKBA.  The right to bear arms is clearly a fundamental right the people have reserved to themselves.  That right is compromised if access to firearms is only via a federally controlled supply chain.

- Political ramifications.  No organized political opposition to the FFA concept has emerged.  Thus, there is little or no political downside to supporting the FFA, and thereby engaging in this potentially beneficial civics esperiment.

 - Commerce clause amended.  The commerce clause was amended - - - by the Tenth Amendment.  It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently-enacted must be given deference as the most recent expression of the enacting authority.  This principle is ancient.  Without this principle, laws could not be amended or repealed.

- Reversing Bad Precedent.  Bad precedent must always fall to wise judicial review. The U.S. Supreme Court once upheld laws protecting slave ownership. That precedent was wrong and destined to be reversed. There are many other examples.
 
- Wider application.  Firearms are the vehicle for this challenge, but it has much wider potential implications. Should a State be allowed to build and maintain business and industry within its borders without intrusive interference from the federal government? Should a State be allowed to make its own construction materials to build schools and homes? Should a State require Uncle Sam's blessing to grow and transport food to feed its citizens?

 - What about state-made guns found out-of-state?  A firearm manufactured under a state's FFA, marked "Made in [State]" and found outside of that state would subject the firearm and the person possessing that firearm to federal authority, probably criminal prosecution.  That firearm has crossed the state line and may be subject to the authority of Congress to regulate "commerce among the several states."

-----------------------------------------

Questions and Answers

What about existing in-state firearms manufacturers?

Existing manufacturers would NOT be affected by the FFA.  They would not be players.  Existing manufacturers must have a federal manufacturing license from the BATFE to make and sell guns.  Also, they have a national or international market they depend on for their business model and volume.  They must sell and ship across state lines - genuine "interstate commerce."  Since they are necessarily under the thumb of the BATFE already and know how vindictive the BATFE can be, they would not risk playing in the state-retained guns market.

So, the FFA likely will apply to small machine shops, unlicensed gunsmiths and other tinkerers.  Making firearms is not rocket science.  It's been done for a long time.  Anyone with computer-controlled machining equipment can knock out the actions for firearms.  They might finish and sell them, or others might line up to buy state-made firearm actions and finish those for sale in-state as complete firearms under the FFA.


The FFA is not constitutional?

To:
Senator Margaret Dayton
Utah Senate

Margaret,

This is a follow up on the memo on the UFFA concerning the (un)constitutionality of the UFFA vis-a-vis current case law.

If you had been in the Georgia Senate in 1858 and had introduced a bill to outlaw slavery, a very similar memo would have been written about your bill.  The drafter would have asserted that the U.S. Supreme Court had already decided the issue in Dred Scott v. Sandford in 1857, and that your bill would certainly be considered to be unconstitutional by existing precedent and prevailing contemporary case law.

Does that mean you should drop the bill to outlaw slavery?  Not necessarily.  The Supreme Court precedent was subsequently overridden.

Should you now back away from your bill to rebuff state slavery to the federal government via the commerce clause, to assert that states are not "mere administrative subdivisions" of the federal government (New York v. US)?

No.  The purpose of the UFFA is to make a change in the status quo, not to conform to the status quo.  The exact purpose of the U.S. Supreme Court is to overturn precedent.  It does that commonly.

In the recent landmark free speech case Citizens United v. F.E.C., Chief Justice Roberts elaborated on when it is acceptable for the Court to overturn precedent: “... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

The FFA concept may fit all three possible reasons Roberts lists for overturning precedent.


Background checks post FFA?

Currently, background checks are federally required only for firearms sold by federally-licensed dealers (FFLs), under the Brady Act, passed by Congress in 1994.  At the time of passage of the Brady Act, only a few states required background checks for firearm purchase from FFLs, not including Montana.  Therefore, it was not a state choice to begin FFL background checks, but a federally-imposed mandate.  Montana was doing fine without background checks until the feds mandated them.  Montana understands that criminals rarely buy their guns at sporting goods stores - they steal them, or buy them from somebody who has stolen them.

There is currently no requirement for background checks for private/private sales of firearms, although the feds would like to end that "loophole" with legislation to end the "gunshow loophole" - force all sales through a federal screening/recording system.

If the FFA passes in other states, the federal-required background checks for FFLs would be UNCHANGED.  The feds would be able to require checks for all firearms that move in interstate commerce, and that are sold by FFLs.  Also unchanged would be the non-requirement for checks for sales between private individuals, even for firearms that had traveled in interstate commerce.  Whether or not background checks would be required for FFA firearms would be up to each state.

IF we are able to validate the principles of the FFA in court, and IF there arise in other states some makers of state-made firearms who are unlicensed by the feds, then it would be up to that state to determine if it wants to require these gunmakers to do background checks on customers before transfer.  The state might care to view these sales as private sales are now (no check), or as all sales were pre-Brady (presumably no checks).  Or, at the discretion of the Legislature, state-only gunmakers might be required to do background checks on customers.

So, any question of background checks under the FFA does NOT apply current or future sales of interstate firearms currently sold by FFLs, sporting goods stores and others in your.  The question of background checks also does NOT apply to any current or future (unless the federal law changes) private party sales of firearms, either intERstate or intRAstate firearms.

Thus, the question would only apply to future sales of state-made firearms sold commercially in-state, IF the FFA concept is validated in court, and IF the state determined to not require checks for those sales.


Does the NRA oppose the FFA?

No.  The NRA is neutral.  The NRA supported the original Montana Firearms Freedom Act before the Montana Legislature.  It also supported an FFA clone in Texas.  It is true that the NRA has backed off some and is now staying at arms  length from the FFA bills.  The NRA's official position is that it is neutral on the FFA.

The NRA has become such a mainstream institution that it is simply uncomfortable being anywhere near the edge of the envelope, politically and legally.  This is why the NRA tried hard to derail the D.C. v. Heller case before it went to the U.S. Supreme Court.

The NRA is advising FFA bill sponsors about the legal downside to the FFA concept, and the NRA does see FFA bills as competing with its ability to get its pro-gun agenda passed at state level.

However, given the success of the FFA movement nationwide, it is predicted that the NRA will see institutional value in getting onboard the FFA movement eventually, as it finally did with the Heller case.
---------------------------------