Posted on 05/04/2009 6:32:20 AM PDT by marktwain
By: Berman H.B. No. 1863
A BILL TO BE ENTITLED
AN ACT relating to exempting the intrastate manufacture of a firearm, a firearm accessory, or ammunition from federal regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. FINDINGS.
(a) The Legislature of the State of Texas makes findings as stated in this section.
(b) The Tenth Amendment to the United States Constitution 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 Texas certain powers as they were understood at the time that Texas was admitted to statehood in 1845. The guaranty of those powers is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.
(c) The Ninth Amendment to the United States Constitution guarantees to the people rights not granted in the constitution and reserves to the people of Texas certain rights as they were understood at the time that Texas became a state. The guaranty of those rights is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.
(d) The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution if not expressly preempted by federal law. The United States Congress has not expressly preempted state regulation of intrastate commerce relating to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.
(e) The Second Amendment to the United States Constitution reserves to the people the right to keep and bear arms as that right was understood at the time that Texas became a state, and the guaranty of the right is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.
(f) Section 23, Article I, Texas Constitution, clearly secures to Texas citizens the right to keep and bear arms. This constitutional protection is unchanged from the date the constitution was adopted in 1876.
SECTION 2. DECLARATION. The Legislature of the State of Texas declares that a firearm, a firearm accessory, or ammunition manufactured in Texas, as described by Chapter 2003, Business & Commerce Code, as added by this Act, that remains within the borders of Texas:
(1) has not traveled in interstate commerce; and
(2) is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.
SECTION 3. Title 99, Business & Commerce Code, is amended by adding Chapter 2003 to read as follows: CHAPTER 2003. INTRASTATE MANUFACTURE OF A FIREARM, A FIREARM ACCESSORY, OR AMMUNITION
Sec. 2003.001. DEFINITIONS. In this chapter:
(1) "Firearm accessory" means an item that is used in conjunction with or mounted on a firearm but is not essential to the basic function of a firearm. The term includes a telescopic or laser sight, magazine, flash or sound suppressor, folding or aftermarket stock and grip, speedloader, ammunition carrier, and light for target illumination.
(2) "Generic and insignificant part" means an item that has manufacturing or consumer product applications other than inclusion in a firearm, a firearm accessory, or ammunition. The term includes a spring, screw, nut, and pin.
(3) "Manufacture" includes forging, casting, machining, or another process for working a material.
Sec. 2003.002. MEANING OF MANUFACTURED IN THIS STATE. (a) For the purposes of this chapter, a firearm, a firearm accessory, or ammunition is manufactured in this state if the item is manufactured:
(1) in this state from basic materials; and
(2) without the inclusion of any part imported from another state other than a generic and insignificant part.
(b) For the purposes of this chapter, a firearm is manufactured in this state if it is manufactured as described by Subsection (a) without regard to whether a firearm accessory imported into this state from another state is attached to or used in conjunction with it.
Sec. 2003.003. NOT SUBJECT TO FEDERAL REGULATION.
(a) A firearm, a firearm accessory, or ammunition that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.
(b) A basic material from which a firearm, a firearm accessory, or ammunition is manufactured in this state, including unmachined steel and unshaped wood, is not a firearm, a firearm accessory, or ammunition and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm, a firearm accessory, or ammunition.
Sec. 2003.004. EXCEPTIONS. This chapter does not apply to:
(1) a firearm that cannot be carried and used by one person;
(2) a firearm that has a bore diameter greater than 1.5 inches and that uses smokeless powder and not black powder as a propellant;
(3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or
(4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.
Sec. 2003.005. MARKETING OF FIREARMS. A firearm manufactured and sold in this state must have the words "Made in Texas" clearly stamped on a central metallic part, such as the receiver or frame.
Sec. 2003.006. ATTORNEY GENERAL.
(a) The attorney general shall defend a citizen of this state whom the federal government attempts to prosecute, claiming the power to regulate interstate commerce, for violation of a federal law concerning the manufacture, sale, transfer, or possession of a firearm, a firearm accessory, or ammunition manufactured and retained in this state.
(b) On written notification to the attorney general by a citizen of the citizen's intent to manufacture a firearm, a firearm accessory, or ammunition to which this chapter applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that this chapter is consistent with the United States Constitution.
SECTION 4. This Act applies only to a firearm, a firearm accessory, as that term is defined by Section 2003.001, Business & Commerce Code, as added by this Act, and ammunition that is manufactured on or after the effective date of this Act.
SECTION 5. This Act takes effect September 1, 2009.
OTOH....Texas may have to build a wall ON THEIR NORTHERN BORDER!
That is true, so far as it goes. There is no case law that I know of that combines the 10th, 2nd, and 9th amendments. Lopez says that mere possession of a firearm is not interstate commerce, and the 9th circuit agreed with that in U.S. vs Stewart.
Wickard needs to be reversed. It is an abomination to the Constitution, and reversed many decades of precident.
This bill has just been introduced, but it certainly would be nice to see it enacted.
This bill was introduced on 2/26/09 and assigned to the Public Safety committeed on 3/4/09 with public hearings held on 4/27/09 and reported out of committee on 5/01/09. Hopefully it will get taken up by the full House and then on to the Senate. The bill has eight authors/co-authors . The Legislature ends on June 1, 09. The Legislators have been busy this session filing some 7,154 bills about 1000 more than last session. Usually somewhere around 25% make it through the process.
Sure like to see some ammo and gun dealers move their manufacturing facilities out here. they will be met with open arms and not the subject of constant harassment and lawsuits like other states deal ‘em.
“Sure like to see some ammo and gun dealers move their manufacturing facilities out here. they will be met with open arms and not the subject of constant harassment and lawsuits like other states deal ‘em.”
“...met with open arms...”?
We will have parades, charity auctions, high shool bands with baton twirlers. Picnics for the whole family.
My weapon is an extension of my freedom...I will not surrender either......EVER!
This is true, and its damage goes far beyond firearms law. Unfortunately I'm not sure even Scalia would be on board this (though he would scale it back). Thomas is probably the only justice who would actually overturn it given the opportunity.
Needs to be fixed. Shotguns would not be covered.
Again, full auto is specifically excluded from such legislation.
The bill is great and I hope it passes; I just keep wondering what’s not being told about the third-rail attitude toward MGs.
This is true, and its damage goes far beyond firearms law. Unfortunately I'm not sure even Scalia would be on board this (though he would scale it back). Thomas is probably the only justice who would actually overturn it given the opportunity.
Indeed. I would have said that Scalia would have been on board except for his poor performance with “Gonzales v. Raich”, where he said that homegrown marijuana that *was not sold* could be regulated by the federal government under the interstate commerce clause!
But that possession affects interstate commerce, and such a recitation must appear in the federal law that prohibits handguns w/in XX feet of a school. The Lopez decision was gutted months after its passage. It's holding is facile.
Scalia is a gun grabber.
Scalia: We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." [All of Scalia's conclusions in this vein depend on the scope of government regulatory power being congruent with "in common use," which is downright handy when the government can regulate things out of common use] We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [1) notice the stated historical prohibition is on carrying, not on keeping, and 2) cites omitted, but they do not support a conclusion that the US government can constitutionally ban the private possession of a dangerous and unusual weapon, let alone Scalia's outcome that it can constitutionally ban a small arm in common use by the military]It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. [Here he seems to be saying that the government may ban M-16s and weapons that are useful in military service] But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. [Notice he does not probe the scope of "lawful weapons possessed at home" at the time of the Second Amendment's ratification] It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. [Unusual is not the measure, and even if it was, "highly unusual" in this instance is bootstrapped from government restriction] Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. [He neutralizes the Miller Court's statement -- "weapon [that] is any part of the ordinary military equipment or [which] use could contribute to the common defense [is in the scope of 2nd amendment protection]" -- without explanation]
Wickard V Fillburn violates the Art 6 Para 2 prohibition placed on Judges. They are not allowed to re-write laws or entire Clauses in the Constitution.
I believe you are mistaken. Lopez was cited in United States v. Stewart, where the 9th circuit held that homemade machine-guns did not fall under jurisdiction of the Federal government because they were not involved in interstate commerce.
SCOTUS directed the 9th Circuit to reconsider Stewart and be guided in that reconsideration by Raich. The result:
"We therefore hold that Congress had a rational basis for concluding that in the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns."
Could you please send me a link for that quote. I’d like to read the whole thing.
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