Eight states have thrown down the gauntlet and denied the federal government’s authority to regulate firearms that never cross state lines. In 2009, Montana became the first to enact a law declaring any gun manufactured and kept within the state’s borders was subject only to state rules. It’s now up to the 9th U.S. Circuit Court of Appeals to decide whether Montana – and by extension Alaska, Arizona, Idaho, South Dakota, Tennessee and Wyoming – must yield to the whims of Uncle Sam. Read More
State turns up heat in power clash with feds
Plaintiffs Appeal Firearms Freedom Act Ruling to the Ninth Circuit
Enroute to the U.S. Supreme Court
MISSOULA, MONT. – Plaintiffs in litigation to validate the principles of the Montana Firearms Freedom Act (MFFA) have appealed an expected but adverse federal district court decision to the Ninth Circuit Court of Appeals. The plaintiffs in MSSA v. Holder include the Montana Shooting Sports Association (MSSA), the Second Amendment Foundation (SAF), and MSSA President Gary Marbut of Missoula.
The MFFA is designed to test the power of Congress to regulate everything without limits under the narrow power given to Congress in the Constitution to “regulate commerce … among the states.” The MFFA declares that any firearms, ammunition and firearm accessories made and retained in Montana are not subject to any federal authority under the Commerce Clause. Congress must find some authority among the Constitution’s “enumerated powers” for every action it takes.
Plaintiffs filed the lawsuit MSSA v. Holder on the day the MFFA became effective in Montana, October 1, 2009. Since the MFFA enactment in Montana, the MFFA has been cloned and enacted in seven other states, and FFA bills have been introduced in the legislatures of 20 more states.
In a judgment entered on October 19, 2010, the district court granted the U.S. Motion to Dismiss. It is this judgment that is now appealed to the Ninth Circuit.
MSSA President and plaintiff Gary Marbut commented, “We’ve known all along that the district court will not provide what we seek, the reversal of a half-century of bad Commerce Clause precedent. We need to get to the U.S. Supreme Court for that. This notice of appeal puts us at the 50-yard line in our quest to get to the Supreme Court – it is a big step in the direction we need to go.”
Not only has the FFA concept attracted the interest and support of many other states frustrated with an overbearing federal government, but the MSSA v. Holder lawsuit has attracted an unusual, perhaps record, number of amici (amicus curiae, friends of the court). Some qualified observers say they’ve never seen a case that has attracted as much amici support at the district court level as this case has. Amici include the State of Utah (also representing several other states), Gun Owners Foundation (Gun Owners of America), the Goldwater Institute of Arizona, the Paragon Foundation of New Mexico, the Weapons Collectors Society of Montana, an amicus group of Montana legislators who supported the MFFA, and another amicus group of non-Montana legislators who sponsored or co-sponsored FFA bills in other states. The State of Montana has also intervened in support of the MFFA. Other amici are expected to enter in support of the MFFA when the lawsuit is argued before Ninth Circuit.
“It is totally obvious from the positions of federal participants, both lawyers and judges for the U.S.,” Marbut commented, “that the federal establishment definitely, almost desperately, wishes to prevent this issue from having a trial on merit.”
The likely options for the Ninth Circuit are to uphold the judgment of the district court or to overrule the district court and remand the case back to the district court for trial. Regardless of what action is taken by the Ninth Circuit, MSSA v. Holder is certain to be appealed to the Supreme Court. If the Supreme Court only reviews the district court dismissal on appeal to it, the Supreme Court can still rule on the merits of the case since part of the grounds for dismissal is based on merit.
More states join Montana’s fight with feds over guns
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.
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.
Motion to Dismiss “Expected”
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.
Federalism, Again: The Firearms Freedom Act
Greetings from Montana.
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.
Montana Firearms Freedom Act
FOR IMMEDIATE RELEASE
Gary Marbut, 406-549-1252
Alan Gottlieb, 425-454-7012
MISSOULA – The Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit in federal court in Missoula today to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).
The MFFA was enacted by the 2009 Montana Legislature, signed by Governor Schweitzer, and becomes effective today, Oct. 1.
Lead attorney for the plaintiffs’ litigation team is Quentin Rhoades of the Missoula firm of Sullivan, Tabaracci & Rhoades, PC. The MFFA litigation team also includes other attorneys located in Montana, New York, Florida, Arizona and Washington.
“We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state,” explained MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA. It’s time for Montana and her sister states to take a stand against the bullying federal government, which the Legislature and Governor have done and we are doing with this lawsuit. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”
“We’re happy to join this lawsuit,” said SAF founder Alan Gottlieb, “because we believe this issue should be decided by the courts.”
The MFFA declares that any firearms made and retained in Montana are not subject to any federal authority under the power given to Congress in the U.S. Constitution to regulate “commerce … among the several states.” The MFFA relies on the Tenth Amendment and other principles to challenge Congress’ commerce clause power to regulate a wide spectrum of in-state activities. This is a states’ rights effort, using firearms as the object of the exercise. The MFFA exempts Montana-made and retained firearms, firearm accessories and ammunition from federal power, saying that if these items do not cross state lines, they are strictly INTRAstate commerce, not INTERstate commerce, and not subject to federal authority.
MSSA continues to strongly urge that no Montana citizen attempt to manufacture an MFFA-covered item, even after the law takes effect today, until MSSA can prove the principles of the MFFA in court. Until the courts rule in support of the MFFA, any such manufacturer could be subject to federal criminal prosecution.
This concept has caught national attention. Tennessee has passed a clone of the MFFA. Other clones have been introduced in Alaska, Texas, Florida, South Carolina, Pennsylvania, Michigan and Minnesota. Legislators in 20 other states have indicated that they will introduce MFFA clones in their states once their legislatures reconvene, Marbut said. Information about the Firearms Freedom Act movement is being accumulated and made publicly available at firearmsfreedomact.com.
This movement follows multi-state rejection of Washington-mandated Real ID, a law passed by Congress requiring state drivers licenses to conform to federal identification standards. The FFA movement also works in tandem with resolutions introduced or passed in many states asserting state sovereignty under the Ninth and Tenth Amendments to the U.S. Constitution. As is the rest of the Bill of Rights, the Ninth and Tenth Amendments are limitations on federal power. The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment declares: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Under our federated system of government in the U.S., Marbut noted, states and the federal government are widely recognized to share power and authority, with definite limits placed on federal power by the states, the creators of the federal government. The MFFA lawsuit is designed to test and define those limits, to assert states’ authority, and to limit what many see as overbearing authority assumed by Congress and the federal government.
Beginning during the New Deal, federal courts have generally upheld federal commerce clause authority, initially in the 1942 case of Wickard v. Filburn and continuing recently with the 2005 case of Gonzales v. Raich. Raich was the Supreme Court case allowing federal regulation of medical marijuana in California. However, other cases such as the 1995 case of US v. Lopez suggest that federal commerce power is not infinitely elastic, that there are limits to federal commerce power, and that it has just not yet been determined what those limits may be. The MFFA litigation is structured to clarify and affirm those limits.
The modern era of dramatically-expanded federal commerce clause power was ushered in with the Wickard decision. The Supreme Court allowed this considerable expansion of federal commerce power under Wickard only after President Roosevelt threatened to pack the Court with cronies if the Court didn’t cease declaring Roosevelt’s New Deal programs to be unconstitutional and beyond federal reach. ( http://en.wikipedia.org/wiki/Commerce_clause)
MSSA is the primary political advocate for Montana gun owners. SAF is a national organization headquartered in Bellevue, WA that works nationally to advance the interests of gun owners.
Copy of Complaint available Here
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.
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.
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.
Richard E. Chase
Special Agent in Charge
Denver Field Division