HELENA – A growing list of states joining the legal battle over federal gun control argued Monday that Congress can’t regulate guns made and sold within a state.

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The federal government is claiming in court documents demanding the dismissal of a gun-law challenge in Montana the authority to regulate in-state commerce under the Constitution’s Commerce clause.

MISSOULA – The United States has made its first response to a lawsuit filed in federal district court in Missoula to test the Montana Firearms Freedom Act (MFFA), passed by the 2009 Legislature and signed into law by Governor Schweitzer.

The MFFA declares that any firearms, ammunition or firearms accessories made and retained in Montana are not subject to federal regulation under the power given to Congress in the U.S. Constitution to regulate commerce “among the several states.” The MFFA is a states’ rights challenge on Tenth Amendment grounds, with firearms serving as the vehicle for the challenge.

This lawsuit to validate the MFFA was brought by the Montana Shooting Sports Association (MSSA) and Second Amendment Foundation (SAF). The suit names U.S. Attorney General Eric Holder as defendant, and is referred to as MSSA v. Holder.

The first response to the lawsuit by the United States is a Motion to Dismiss, submitted January 19th and considered to be a standard procedural maneuver in lawsuits against the U.S government . This motion seeks to avoid the legal merits by asserting that the Plaintiffs lack standing to sue, that a justiciable controversy does not exist, and that prevailing case law is against Plaintiffs.

MSSA President Gary Marbut, also a Plaintiff in the lawsuit explained, “The first import of this response is that the legal game is now on. There was some concern that the defendants would forfeit the game with no response in an effort to prevent this important issue from being adjudicated properly. We are now beyond that hurdle.” However, the Motion to Dismiss by Washington also seeks to sidestep proper adjudication.

SAF Chairman Alan Gottlieb said, “We are disappointed but not surprised that the government would try to kill this suit on standing, rather than arguing about the merits of the case.”

The MFFA concept has gained traction across the Nation since its passage in Montana. Tennessee has enacted a clone of the MFFA, and other clones have been introduced in the state legislatures of 19 other states, including: Alabama, Alaska, Arizona Florida, Georgia, Indiana, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wyoming. . Ten or more additional states are expected to introduce yet more MFFA clones in the next few weeks. (See: http://www.FirearmsFreedomAct.com)

The U.S.’s Motion to Dismiss and Brief in Support are viewable at: http://FirearmsFreedomAct.com/montana-lawsuit-updates/

MSSA and SAF have assembled a litigation team for this effort consisting of three attorneys from Montana, one from New York, one from Florida and one from Arizona. Lead attorney for the Plaintiffs is Quentin Rhoades, partner the Missoula firm of Sullivan, Tabaracci and Rhoades. Other interested parties from both in and out of Montana are preparing to weigh in on this issue of national interest and national importance as amicus curiae (friends of the court).

Marbut commented, “The FFA concept has created a firestorm of interest nationwide. Lots of people and other states are watching carefully to see how Montana fares in this challenge to overbearing federal authority and to Washington’s attempt to control every detail of commerce in the Nation, especially including activity wholly confined within an individual state. That level of micro management certainly was not the intent of our founders when they gave Congress limited power in the Constitution to regulate commerce ‘among the states’.” (See: http://FirearmsFreedomAct.com/what-is-the-commerce-clause/)

MSSA is the primary political advocate for gun owners and hunters in Montana, having gotten 54 pro-gun and pro-hunting bills through the Montana Legislature in the past 25 years. SAF is a pro-gun foundation in Bellevue, Washington, established to press the rights of gun owners primarily in judicial fora. SAF has been a party to numerous lawsuits to assert the rights of gun owners across the Nation.

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You may be aware that the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation have filed our Complaint (MSSA v. Holder) in federal court to validate the principles of the Montana Firearms Freedom Act (MFFA), passed by the 2009 Montana Legislature.  Also, an MFFA clone has been passed in Tennessee, and other clones have been introduced in Alaska, Texas, Florida, South Carolina, Minnesota, Michigan, Pennsylvania and Ohio.  Legislators in about 20 other states have told me that they will introduce clones in their states once their legislatures reconvene.  I’ve been pooling information about this national movement at: http://FirearmsFreedomAct.com

I wrote the original MFFA, and both MSSA and I are plaintiffs in our lawsuit.

The MFFA declares that any firearms made and retained in Montana are not subject to any federal authority under Congress’s commerce clause power.  The subject of this effort is a states’ rights/Tenth Amendment challenge to federal commerce clause power.  Firearms are the object of the exercise.

Now we are seeking amici parties to support our position in this litigation.  Our lawsuit is filed in federal district court in Missoula, Montana.  In our complaint, we request both a declaratory judgment and injunctive relief.

We would REALLY like to see an amicus from any other interested state, or other interested entities.

We would like to get amicus parties onboard as soon as possible.  We expect that there may soon be dispositive motions in the case from the U.S., such as a motion to dismiss for lack of a justiciable controversy.  Having amicus parties already involved will help us resist any such motions.  The next scheduled event in the lawsuit is a preliminary pretrial conference on February 2, 2010.

The lead attorney of our litigation team is Quentin Rhoades of Missoula (406-721-9700).  Quentin invites potential amici parties to contact him with any questions.

I am developing a list of simpatico Montana attorneys willing to serve as pro hac vice sponsors in re interested amici parties.  I should have that list available soon.

Thanks loads for your interest.

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com
406-549-1252

August 21, 2009
Dear Mr. Bray,

I wish to manufacture firearms, firearm accessories or ammunition consistent with the Montana Firearms Freedom Act, enacted by the 2009 Montana Legislature, which becomes effective on October 1, 2009.

http://data.opi.mt.gov/bills/2009/billhtml/HBO246.htm

Can you tell me if it is permissible under federal law to either:
1) Manufacture such items solely for my own use in Montana, or

2) Manufacture such items for sale to others only within Montana

Thank you for your timely response.

Sincerely,
Gary Marbut

September 29, 2009
Dear Mr. Marbut,

I have reviewed your letter dated August 21, 2009. In that letter you indicate that you wish to manufacture firearms, firearms accessories, or ammunition consistent with the Montana Firearms Freedom Act (Montana HB 246.) You inquired whether under Federal law it is permissible to manufacture such items for your sole use, and whether you could manufacture such items for sale to others within Montana.

As a first matter, the manufacture of firearms, ammunition, and firearms accessories for your personal use does generally not require licensure under the Federal Gun Control Act of 1968, as amended (GCA). If the firearm, however, is of a type that is defined under 26 U.S.C. Section 5845 (i. e., a National Firearms Act firearm), you will need to file an ATF Form 1, and have it approved by ATF prior to manufacture. I note that in Montana HB 246, the definition of firearm accessory includes sound suppressors. A sound suppressor could come within the definition of a silencer or muffler under the National Firearms Act (NFA), and manufacture of such, even for personal use, would require filing an ATF Form 1, and approval from ATF.

Your other concern is whether it is permissible under Federal law to manufacture firearms, firearms accessories, or ammunition for sale to others within Montana. The manufacture of firearms or ammunition for sale to others within Montana requires licensure by ATF. In order to become a licensed manufacturer you will need to file an ATF Form 7 with ATF’s Federal Firearms Licensing Center. I have attached a form with instructions for your use. The manufacture of firearms accessories for sale within Montana, with the exception of sound suppressors, does not require a license from ATF. If you desire to manufacture sound suppressors for sale, please contact our ATF Salt

Lake City Industry Operations Office at 801-524-7000. That office can assist you in becoming a manufacturer of NFA firearms. Also, if you are engaging in the business of manufacturing firearms or ammunition for sale to others, and desire ATF to examine a sample of such firearm or ammunition, please contact ATF’s Fireanns Technology Branch at 304-260-3414, who will arrange to have the firearm or ammunition evaluated at the local ATF office in Montana.

As a final matter, ATF hopes to work with you in obtaining any necessary manufacturing licenses required under the GCA, or registration of firearms covered by the NFA. However, you should be aware that any unlicensed manufacturing of firearms or ammunition for sale or resale, or the manufacture of any NFA weapons, including sound suppressors, without proper registration and payment of tax, is a violation of Federal law and could lead to the forfeiture of such items and potential criminal prosecution under the GCA or NFA. To the extent that the Montana Firearms Freedom Act conflicts with Federal firearms laws and regulations, Federal law supersedes the Act, and all provisions of the GCA and NFA, and their corresponding regulations, continue to apply.

If you have any questions about any of the matters addressed in this letter, please contact Resident Agent in Charge Ken Bray at 406-657-6886.

Sincerely,
Richard E. Chase
Special Agent in Charge
Denver Field Division

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