Written by Shawn Elletson | 25 August 2009

“Michigan Firearms Freedom Act”

BILL 5232 PRINTED BELOW

Analytical Summary. While the purpose and intent of House Bill 5232, “Michigan Firearms Freedom Act”, should be supported, in its present form it is extremely weak and watered down. This bill leaves the potential that Federal Government render the bill effectively null and void through statute. With that possibility, the bill would be purely symbolic and not provide the people any freedom that the name would imply. Significant changes are required before this bill will accomplish any measurable reassertion of Liberty.

Details. The bill begins in Section 1 with the customary fashion of providing the appropriate nomenclature of the bill, should it be passed into law. Section 2 continues with citations of Amendments X and IX (Section 2 (a) and 2 (b) respectively), followed by the framing of intrastate commerce as it applies to the Constitution. However, the clause “particularly if not expressly preempted by federal law” is one of the areas of the bill of greatest concern. It is the legislative equivalent to a parent telling a child they can’t stay out past 9 pm, unless the child writes a note saying they want to. This clause inexplicably shifts power back to the Federal Government, by allowing the Federal Government to reassert jurisdiction through simple, unconstitutional legislation. This at a minimum has to be removed. Allowing the Congress of the United States to legislate around the Constitution defeats the intended purpose of the entire bill.

Another troubling clause, found in Section 2 (a), (b) and (c), seems to imply that Amendments X, IX, and II (respectively) is interpreted on a sliding scale, based on the year of interpretation. Setting the legislative precedent of “as it was understood at the time Michigan was admitted to statehood” implies that each time a state is admitted to the Union or granted Statehood (more correct terms than was used in HB 5232), a different understanding of the Constitution is possible. The Constitution has to be interpreted as it is written and as it was intended at the time it was written. Allowing for different interpretations of Amendment X, IX, and II for Kentucky (admitted 1 June 1792) and Hawaii (admitted 21 August 1959) based solely on date of admission, would result in chaos. Also, one would first be required to determine who has authority to interpret AmendmentsX, IX, and II (or any other part of the Constitution) at the specified time. The only appropriate interpretation is, again, as it is written and as it was intended when written. And that happens to bring us full circle to the rejection of the so-called interstate commerce clause.

Rejecting the application of the so-called interstate commerce clause is appropriate in this instance. However, the opportunity to establish the appropriate application of Article I Section 8 of the United States Constitution, “To regulate Commerce… among the several States,” as it pertains to the State of and citizens (people) of Michigan is missed. The bill should present the correct understanding that the United States Congress’ authority to “regulate” was to ensure commerce “among the several States” was regular. That is, that the Congress of the United States had the enumerated power to grease the wheels of commerce flowing from one state to another, in the interests of each States prosperity. The clause was not intended as in enumerated power to build a wall between the States through obstructive rules and prevent the flow of commerce, as it is applied and interpreted today. The sole focus of the bill should not be to identify the role of the Congress of the United States in furthering interstate commerce, but the acknowledgement of that role only strengthens the argument against its ability to impede it (commerce). Thus, if the Congress of the United States is intended to promote (keep regular) commerce between the States, and not impede it, the argument against any involvement in intrastate commerce is strengthened.

Next, Section 2(e) contradicts Section 2(c), which would open the rights of the citizens of the State of Michigan up to abuse. Section 2(e) cites the Michigan Constitution where it “prohibits government interference with, the right of individual Michigan citizens to keep and bear arms.” However, earlier in the bill, Section 2(c) allows the Constitution State of Michigan to be neutered if “expressly preempted by federal law.” The sovereign State of Michigan should refute the constitutionality of a Federal firearm Law Enforcement Agency (Bureau of Alcohol, Tobacco, Firearms and Explosives), especially as it pertains to intrastate commerce, and prohibit the operation thereof, except where Constitutionally applicable. Allowing the individual rights enshrined by the Constitution of the State of Michigan to be usurped by federal statute essentially eliminates Amendments IX and X of the federal Constitution. That cannot be allowed to happen or continue, in statute of in practice. That brings us to the final part of the bill, as currently written, of concern.

While Section 3 is predominately a sound section, allowing for exceptions as stated in Section 4 (d), or for that matter (a), (b), and (c), provides for an unconstitutional infringement by the Federal Government in the regulation of firearms. Section 4(d) decides that any automatic, or semi-automatic capable firearm is not considered a personal firearm and exempt from Constitutional protections. This limits the means in which a citizen of the sovereign State of Michigan may exercise their right to bear arms. Enshrining that right in the Constitution of the State of Michigan, only to render it subject to federal statute renders the enshrinement pointless. The right to bear arms is either a right, or it is not; subjecting it to the whim of another legislative body is not a sufficient guarantor of rights to the people.

Finally, Section 5 provides for an unnecessary requirement on firearm manufacturers. Had the act been written in a manner that actually protected the rights of the people of the State of Michigan, Section 6 would have been the most absurd aspect of the bill. The Section reasserting the powers granted to the People and State enshrined in and the federal Constitution (ratified 1 June 1788) becoming effective 1 October 2010 (81,186 days later) would make the right to bear arms one of the most delayed rights known to man. This bill should apply to any firearm produced at anytime in Michigan. Preventing the application of the law to any previously produced (in Michigan) firearm would be an injustice.

Conclusion. While House Bill 5232 is a noble attempt to free the people of the State of Michigan from unconstitutional interference of the federal government, it fails miserably. Besides the removal of the questionable text cited above, certain provisions should be considered to protect the people of the State of Michigan from an overzealous federal bureaucracy. The house should consider provisions for prosecution and imprisonment of any federal agent (and agent’s superior) who arrests, charges, or prosecutes any citizen of Michigan who legally engages in intrastate firearm commerce. The violation of any State firearm statute falls under the responsibility of the Michigan Attorney General and local law enforcement for prosecution. Should a citizen of Michigan violate interstate commerce laws, any protections are suspended, however emphasis that commerce between States should be encouraged would be an appropriate addition to the bill. Any duly appointed federal agent would thus have to consider the prudence of any arrest or prosecution of federal firearms laws, for fear of prosecution and imprisonment themselves, should the rights of the people of Michigan be impeded or usurped by the federal government. A total reworking of the bill would be the first step in protecting the people of Michigan from infringement of their Constitutional rights. As the bill is written, gaping holes allow for the Congress of the United States to abuse the rights of the people of Michigan with no recourse. A stronger, more Constitutionally sound bill would better serve the people of Michigan. As it stands the gaping holes in the bill provide opportunities for continued federal abuse of power and does nothing to solve the problems of set forth in the overall intent of the bill. Either an amateur legislator, or deceitful lawyer wrote the bill, each providing for potentially unacceptable disastrous results. This bill requires significant modifications to ensure the people’s inalienable rights are protected.

 

August 11, 2009, Introduced by Reps. Pavlov, Opsommer, Rick Jones, Knollenberg, Lund, DeShazor, Lori, Kurtz, Calley, Agema, Proos, Daley, Stamas, Hansen, Moss, McMillin, Haveman, Meltzer, Mayes, Moore, Neumann, Espinoza, Spade, McDowell, Bennett, LeBlanc, Hammel, Terry Brown, Paul Scott, Hildenbrand, Rogers, Genetski, Amash, Haines, Walsh, Booher, Clemente, Tyler, Sheltrown, Schuitmaker, Pearce, Kowall, Wayne Schmidt, Crawford and Marleau and referred to the Committee on Judiciary.


A bill to create the Michigan firearms freedom act; to make certain findings regarding intrastate commerce; to prohibit federal regulation of firearms, firearms accessories, and ammunition involved purely in intrastate commerce in this state; to provide for certain exceptions to federal regulation; and to establish certain manufacturing requirements.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the "Michigan firearms freedom act".

Sec. 2. The legislature finds all of the following:

(a) Amendment X of the constitution of the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the state and people of Michigan certain powers as they were understood at the time that Michigan was admitted to statehood on January 26, 1837. The guaranty of those powers is a matter of contract between the state and people of Michigan and the United States as of the time that the compact with the United States was agreed upon and adopted by Michigan and the United States.

(b) Amendment IX of the constitution of the United States guarantees to the people rights not granted in the constitution and reserves to the people of Michigan certain rights, as they were understood at the time that Michigan was admitted to statehood. The guaranty of those rights is a matter of contract between the state and people of Michigan and the United States as of the time that the compact with the United States was agreed upon and adopted by Michigan and the United States.

(c) The regulation of intrastate commerce is vested in the states under amendments IX and X of the constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

(d) Amendment II of the constitution of the United States reserves to the people the right to keep and bear arms as that right was understood at the time that Michigan was admitted to statehood, and the guaranty of the right is a matter of contract between the state and people of Michigan and the United States as of the time that the compact with the United States was agreed upon and adopted by Michigan and the United States.

(e) Section 6 of article I of the state constitution of 1963 clearly secures to Michigan citizens, and prohibits government interference with, the right of individual Michigan citizens to keep and bear arms. This constitutional protection is unchanged from the original Michigan constitution, which was approved by congress and the people of Michigan, and the right exists, as it was understood at the time that the compact with the United States was agreed upon and adopted by Michigan and the United States.

Sec. 3. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Michigan and that remains within the borders of Michigan is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Michigan from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Michigan and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Michigan does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Michigan from those materials.

Firearms accessories that are imported into Michigan from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Michigan.

Sec. 4. Section 3 does not apply to any of the following:

(a) A firearm that cannot be carried and used by 1 person.

(b) A firearm that has a bore diameter greater than 1-1/2 inches and that uses smokeless powder, not black powder, as a propellant.

(c) Ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm.

(d) A firearm that discharges 2 or more projectiles with 1 activation of the trigger or other firing device.

Sec. 5. A firearm manufactured or sold in Michigan under this act shall have the words "Made in Michigan" clearly stamped on a central metallic part, such as the receiver or frame.

Sec. 6. This act applies to firearms, firearms accessories, and ammunition that are manufactured and retained in Michigan on or after October 1, 2010.

Sec. 7. As used in this act:

(a) "Borders of Michigan" means the boundaries of Michigan established for purposes of statehood.

(b) "Firearms accessories" means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including, but not limited to, telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, and lights for target illumination.

(c) "Generic and insignificant parts" includes, but is not limited to, springs, screws, nuts, and pins.

(d) "Manufactured" means that a firearm, a firearm accessory, or ammunition has been created from basic materials for functional Usefulness, including, but not limited to, forging, casting, machining, or other processes for working materials.