MISSOULA, MONT. – The Ninth Circuit Court of Appeals released its opinion today in MSSA v. Holder, the lawsuit brought in federal court to validate the principles of the Montana Firearms Freedom Act (MFFA). The MFFA was enacted by the Montana Legislature and signed into law by then Governor Brian Schweitzer in 2009. The MFFA declares that any firearms made and retained in Montana are not subject to any federal regulation under the power given to Congress in the U.S. Constitution to “regulate commerce … among the states.” The MFFA uses firearms as a vehicle to challenge federal commerce clause power.
Plaintiffs in MSSA v. Holder are the Montana Shooting Sports Association (MSSA), the Second Amendment Foundation, and Gary Marbut, President of MSSA. To set up the legal challenge, Marbut determined to manufacture a youth-model, .22 caliber, bolt-action rifle called the “Montana Buckaroo.” The federal Bureau of Alcohol, Tobacco and Firearms informed Marbut that any such unlicensed manufacture would be illegal under federal law.
Despite Marbut’s BATF-prohibited plans to make the Montana Buckaroo, the federal District Court ruled that the plaintiffs lacked “standing” to bring the lawsuit, and dismissed the lawsuit. MSSA appealed this dismissal to the Ninth Circuit.
In its long-awaited ruling today, the Ninth Circuit reversed the federal District Court on the standing issue, saying that Marbut has standing to bring the challenge, but held that existing Supreme Court precedent was against plaintiffs on the merits of the lawsuit.
Marbut commented, “This was about as good of a ruling as we could have expected from the Ninth Circuit. We must get to the U.S. Supreme Court to accomplish our goal of overturning 70 years of flawed Supreme Court rulings on the interstate commerce clause. We knew that the Ninth Circuit couldn’t help us with that. Only the Supreme Court can overturn Supreme Court precedent. However, now that the standing question is resolved in our favor, we have the green light to appeal to the Supreme Court.”
Marbut says the attorneys involved are already beginning to work on the appeal process.
Marbut continued, “The time is ripe in America for states to challenge federal power, from Obamacare to indefinite detention, to illegal spying on U.S. Citizens and media, to IRS abuses of power, and more. It was the states which created this federal government that has grown to become such a monster. It’s time for the states to get their creature back on a leash. With MSSA v. Holder, we will offer the Supreme Court a chance to do just that.”
Since the MFFA was initially enacted in Montana in 2009, nine other states have enacted clones of the MFFA, and 20-some additional states have introduced MFFA-clone bills. The lawsuit to validate the MFFA principles, MSSA v. Holder, has attracted many intervenors and amicus curiae parties. These include the State of Montana, the attorneys general of eight other states, Montana legislators, legislators from other states, the Goldwater Institute, Gun Owners Foundation, the Center for Constitutional Jurisprudence, the CATO Institute, the Weapons Collectors Society of Montana, the Pacific Legal Foundation, and others.
Kansas Governor Sam Brownback signed 31 bills into law Tuesday.
SB 102 establishes the Second Amendment Protection Act.
Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act. To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law. The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution. The federal district court ruled against the MSSA.
On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments.
In a courtroom gun fight that has the potential to disrupt many of Barack Obama’s plans for national gun lists, laws and limits, attorneys have told the 9th U.S. Circuit Court of Appeals that the U.S. Constitution does not give Washington unlimited authority to bulldoze over state efforts to protect the constitutional rights of their citizens.
If you want to hear the arguments yourself, the audio is now Online at:
You probably know that I wrote the Montana Firearms Freedom Act to mount a challenge to federal “Commerce Clause” power, using firearms as the vehicle for the exercise. The MFFA declares that any firearms made and retained in Montana are simply not subject to any federal authority under the power given to Congress in the Constitution to “regulate commerce … among the states.”
We filed our federal lawsuit, MSSA v. (US Attorney General) Holder, on October 9, 2009, the day the MFFA went into effect. We need to get to the US Supreme Court in order to overturn a century of bad Commerce Clause precedent.
We have been stalled at the Ninth Circuit Court of Appeals for a year and a half now.
FINALLY the Ninth Circuit has scheduled MSSA v. Holder for oral argument on March 4th, in Portland, Oregon (the Ninth hears cases in San Francisco, Portland and Seattle, depending …)
Quite frankly, we expect to lose at the Ninth (although one never knows what the historically-quirky Ninth may do). That will be fine, since it will give us control over the essential appeal to the USSC.
Minor note: As the sole individual plaintiff in the case, and as President of plaintiff MSSA, I hope to attend this oral argument in Portland, depending on two things: 1) The status of activity in re MSSA’s several bills before the Montana Legislature, and 2) Figuring out a way to afford the costs of travel and lodging. For anyone who wishes to help with this, a donation could be made to MSSA with a credit card via PayPal from MSSA’s Website, mtssa.org.
Bottom line, MSSA v. Holder and the Montana Firearms Freedom Act are finally on the move again!!!!
Thanks are again due to our partner in this litigation, and also a plaintiff, the Second Amendment Foundation, and to Missoula attorney and MSSA Life Member Quentin Rhoades for his role as chief counsel in this lawsuit.
Gary Marbut, president
Montana Shooting Sports Association
Just as the rhetoric in Washington on guns has hit a zenith – with Joe Biden promising executive orders to try to prevent the hardware from doing damage – a court order has revived a stunning plan adopted by several states that tells Washington, regarding many guns, to just go away.
MISSOULA, Mont.—With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.
He’s not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.
For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress’s constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement. Read More