Yesterday, I started discussing Texas House Bill 1863, introduced by Rep. Leo Berman (R-Tyler). Since then, an important question has surfaced on some online pro-RKBA forums: if passed, would HB 1863 make it legal to possess an unregistered machine gun that was manufactured on Texas soil? Would the National Firearms Act of 1934 be rendered inoperative for any Texas-made firearm that would otherwise be restricted under NFA?
To answer this question, we need to consult Chapter 46 of the Texas Penal Code.
Sec. 46.05(a) explicitly states that an individual has broken Texas law "if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells" any weapon designated as a "prohibited weapon" by the Texas penal Code. Sec. 46.05(a)(2) further states that a machine gun, which is defined in Sec. 46.01(9) as "any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger," is designated as a "prohibited weapon" under Texas law. However, Sec. 46.05(c) states that compliance with the provisions of NFA "is a defense to prosecution," meaning that any Texas civilian who obtains the proper NFA clearance may legally own a machine gun in the State.
The problem with claiming legal private ownership of an unregistered machine gun under Berman's proposed legislation is that while Sec. 2003.004 of HB 1863 does not exempt machine guns from the provisions of the bill, HB 1863 does not revise or invalidate Sec. 46.05, which is part of the Texas Penal Code and not a Federal statue. This means that any unregistered machine gun in civilian hands, whether or not it was manufactured in the State of Texas, is still subject to the provisions of Sec 46.05, which makes no allowances for civilian ownership in Texas unless predicated by compliance with Sec. 46.05(c).
Contrast the Texas Penal Code with state law in Illinois and Utah to comprehend the significance of the wording of Sec. 46.05. Subsection 24-1(a)(7) and Subsection 24-2(c)(5) of Illinois 720 ILCS 5/Art. 24 make no provision for civilian ownership of machine guns in the State of Illinois under the National Firearms Act, while Title 76, Chapter 10 of the Utah Code does not appear to contain any state laws forbidding civilian ownership of machine guns except for restrictions on possession by anyone younger than 18 years of age as defined in Section 409.4(b). In light of the context of the state laws of Illinois and Utah, and in consideration of the fact that Texas House Bill 1863 does not invalidate any portion of Sec. 46.05 of the Texas Penal Code, any Texan who tries to assert civilian ownership of an unregistered machine gun manufactured in Texas may possibly still face an arrest warrant and felony prosecution under state law.
The context of Sec. 46.05 therefore becomes a matter for legal historians to consider. If one can successfully argue that the provisions of Sec. 46.05 were inserted into Texas state law only after the National Firearms Act of 1934 was signed into law, a case could possibly be made for extensive revision of Sec. 46.05 in order to comply with HB 1863 and defend civilian possession of unregistered Texas-made automatic weapons from prosecution. On the other hand, if one can demonstrate that Texas legislators enacted their own state prohibition on civilian possession of machine guns before NFA was enacted, arguments in favor of unregulated civilian ownership of machine guns manufactured in Texas will be severely undermined, even in light of the provisions of HB 1863.
Any insight into the timeline of firearms prohibitions in the context of Texas state law will therefore be greatly appreciated. Of course, general discussion over the scope and authority of HB 1863 is always welcome.
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First, a disclaimer: I am all for a federalist government (ie states rights), and I think the founders meant it to be that way.
ReplyDeleteHowever, reading this reminded me of one of the worst supreme court decisions of all time: Wickard V. Filburn.
Basically, with this decision, the court reasoned (quite erroneously), that since the Federal Government can regulate interstate commerce, that they can regulate anything that has an effect on interstate commerce. Basically, this was a case where the federal government tried to restrict what a farmer could grow on his own property for his own consumption. The court reasoned, that if he would not have grown the extra wheat in violation of federal regulation, he would have had to buy it on the open market. Since purchasing it on the open market would effect demand and pricing in the interstate market, the court ruled that the federal government can regulate what the farmer grew for his own consumption. So, even though it was the furthest thing from interstate commerce as it could possibly have been, somehow the federal government can still regulate it under the interstate commerce clause.
Disgusting, yes. Stupid, yes! But, it has been the law of the land since the SC court was packed to constitutionalize the new deal.
There has been only one case where the SC has put any limit on federal regulation under the interstate commerce clause, Gonzales V. Lopez. This was actually a gun case, so there is some hope.
The short story is, even if a firearm is manufactured and sold within a state, the federal goverment will assert the right to regulate both its production and sale. The courts will most likely rule in the feds favor, because they have been doing so since Wickard. I would be blissfully happy if they ruled that the feds have no authority to regulate what is clearly intrastate commerce. But, I am not going to hold my breath.
As a side note, this is why you see things like the excerpt below in lots of different legislation at the federal level.
From HR 45:
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings- Congress finds that--
(1) the manufacture, distribution, and importation of firearms is inherently commercial in nature;
(2) firearms regularly move in interstate commerce;
(3) to the extent that firearms trafficking is intrastate in nature, it arises out of and is substantially connected with a commercial transaction, which, when viewed in the aggregate, substantially affects interstate commerce;
(4) because the intrastate and interstate trafficking of firearms are so commingled, full regulation of interstate commerce requires the incidental regulation of intrastate commerce;