“For the last several years, so-called “Firearms Freedom Acts” or “Second Amendment Preservation Acts” have attracted a lot of attention. Such legislation, passed or introduced in various states, seeks to make federal laws regarding firearms inapplicable to firearms and ammunition produced, sold, and used exclusively within the state’s borders on the premise that Congress’s power to regulate commerce among the states doesn’t reach purely in-state activities.
Officials at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) have generally taken the position that these state laws are invalid because they conflict with federal firearms laws and that federal law supersedes the state laws, with the result that the provisions of the federal Gun Control Act and the National Firearms Act continue to apply.
In a lawsuit involving the Montana Firearms Freedom Act (MFFA), the ATF had advised that a proposal to manufacture and sell a .22 caliber rifle in-state in reliance on the MFFA would still require the manufacturer to first obtain approval from the federal government and otherwise comply with federal laws on licensing, record-keeping and other restrictions. In 2013, the United States Court of Appeals for the Ninth Circuit concluded that the federal law preempted, or took precedence over, the state legislation because Congress’ commerce power extended to regulating firearms initially manufactured and sold exclusively intrastate, based on the substantial effect this activity could have on the interstate market in guns. Montana Shooting Sports Ass’n v. Holder, 727 F.3d 975 (9th Cir. 2013).
Another federal court has since considered such state laws, this time in light of the National Firearms Act (NFA), a federal tax law that requires registration and payment of a $200 tax for “firearms” (including suppressors). The NFA makes it an offense to possess, make, receive, or transfer a “firearm” covered by the Act without having registered or paid the required tax.”
