The Governor of the State of Montana has penned a letter to Attorney General Merrick Garland, explaining the State of Montana and its political subdivisions cannot “enforce, or assist the ATF enforcement” of the rule criminalizing the possession of pistol braces as short barreled rifles under the National Firearms Act.
Governor Greg Gianforte refers to House Bill 258, which was passed and signed into law in 2021. From HB 258, now MCA 45-8-368:
Prohibition Of Enforcement
45-8-368. Prohibition of enforcement. (1) A peace officer, state employee, or employee of a political subdivision is prohibited from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of a federal ban on firearms, magazines, or ammunition and is also prohibited from participating in any federal enforcement action implementing a federal ban on firearms, magazines, or ammunition.
(2) An employee of the state or a political subdivision may not expend public funds or allocate public resources for the enforcement of a federal ban on firearms, magazines, or ammunition.
(3) Nothing in this section may be construed to prohibit or otherwise limit a peace officer, state employee, or employee of a political subdivision from cooperating, communicating, or collaborating with a federal agency if the primary purpose is not:
(a) law enforcement activity related to a federal ban; or
(b) the investigation of a violation of a federal ban.
Governor Gianforte informs Attorney General Merrick Garland of the definition of a ban under the law:
Definitions
45-8-367. Definitions. As used in 45-8-365 through 45-8-368, the following definitions apply:
(1) ”Federal ban” means a federal law, executive order, rule, regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of a law that existed on January 1, 2021, that infringes upon, calls in question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.
(2) ”Firearm” means any self-loading rifle, pistol, revolver, or shotgun or any manually loaded rifle, pistol, revolver, or shotgun.
(3) ”Peace officer” has the meaning provided in 45-2-101, except that 45-8-365 through 45-8-368 do not apply to federal employees.
(4) ”Political subdivision” means a city, town, county, consolidated government, or other political subdivision of the state.
Governor Gianforte then tells AG Garland the State of Montana will not assist the federal government in enforcing the new rule, which essentially changes pistols equipped with pistol braces into short barreled rifles, requiring a special tax stamp from the ATF.
The power of state governments to refuse to cooperate with federal agencies is a long-established principle of the Constitution known as the anti-commandeering doctrine. The federal government may not require the states to enforce federal laws. From the tenthamendmentcenter.com:
State and local governments can refuse to enforce federal laws or implement federal programs for any reason they chose. They can prohibit or limit cooperation with the feds because they think the feds are acting outside of their constitutional limits, or simply because it’s Tuesday and there is snow on the ground.
No state has to use its resources to enforce federal laws. It does not matter if the federal law is constitutional or not. All that matters is the state has the power to direct the uses of its resources as it sees fit.
Montana has chosen not to enforce new federal gun laws as described in Statute 45-8-368.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
