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Feds sued to keep out of state's gun affairs

Posted By Bob Unruh On 10/03/2009 @ 11:25 pm In Front Page | Comments Disabled

In the second major front in the war over gun rights that has developed in just days, a lawsuit has been filed against U.S. Attorney General Eric Holder seeking a court order that the federal government stay out of the way of Montana’s management of its own firearms.


Montana statehouse

The action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect today.

WND previously reported on the precedent-setting move taken over the course of recent months when the 2009 Montana Legislature approved the bill and the plan was signed into law by Montana Gov. Brian Schweitzer.

The law provides guns and ammo made, sold and used in Montana would not require any federal forms; silencers made and sold in Montana would be fully legal and not registered; and there would be no firearm registration, serial numbers, criminal records check, waiting periods or paperwork required.

The idea is spreading quickly. Tennessee already has a similar law, and similar plans have been introduced in many other states.

An organization called the Firearms Freedom Act has created a map of such activity nationwide:


Map of gun law activity assembled by FirearmsFreedomAct.org

The move comes at a time the nation has a president who has placed anti-gun activists in several influential positions, including an attorney general who supported a complete handgun ban in the District of Columbia before the U.S. Supreme Court threw it out.

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Montana’s plan is called “An Act exempting from federal regulation under the Commerce Clause of the Constitution of the United States a firearm, a firearm accessory, or ammunition manufactured and retained in Montana.”

The law cites the 10th Amendment to the U.S. Constitution that guarantees to the
states and their people all powers not granted to the federal government
elsewhere in the Constitution and reserves to the state and people of
Montana certain powers as they were understood at the time it was
admitted to statehood in 1889.

“The guaranty of those powers is a matter of
contract between the state and people of Montana and the United States as of
the time that the compact with the United States was agreed upon and adopted
by Montana and the United States in 1889,” the law states.

The lead attorney for the plaintiffs’ litigation team is Quentin Rhodes of the Missoula firm of Sullivan, Tabaracci & Rhoades, PC. The team includes other attorneys working in Montana, New York, Florida, Arizona and Washington.

“We’re happy to join this lawsuit,” said Alan Gottlieb, founder of the SAF, “because we believe this issue should be decided by the courts.

“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,” added MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”

David Codrea, a Gun Rights Examiner writer, noted the federal government already has started attacking the move.

The Bureau of Alcohol, Tobacco, Firearms and Explosives, he wrote, previously had written to Federal Firearms Licensees, warning that they could be prosecuted for following the state laws in Montana and Tennessee.

“What if an FFL was not acting in his capacity as a federal licensee to manufacture for personal use, or to transfer firearms strictly within a state? Or what if a person so engaged was not a federal licensee at all?” Codrea asked.

Then he answered: “ATF’s determined intent to hold all accountable under federal law has not wavered. In a letter to MSSA president Gary Marbut, Richard Chase, Special Agent in Charge, Denver Field Division, states: ‘The manufacture of firearms or ammunition for sale to others within Montana requires licensure by ATF.’”

In a statement the SAF said, “The primary purpose of the MFFA is to set up a legal challenge to federal power under the commerce clause.”

The lawsuit seeks a “declaratory judgment” and is “brought for the purpose of determining a question of actual controversy between the parties.”

“Passage of the MFFA was an express
exercise by the State of Montana of powers reserved to the states and to
the people under the 10th Amendment of the United States Constitution,” the lawsuit said.

“The MFFA is also authorized under the conditions of the compact with the
United States that Montana entered upon admission to the union. The
United States Congress therefore has no authority, under the limited
powers granted to it by the United States Constitution, to preempt the
MFFA.”

The arguments continued, “Under the 10th Amendment, all regulatory authority of all
such activities within Montana’s political borders is left in the sole
discretion of Montana. Federal law therefore does not preempt the MFFA
and cannot be invoked to regulate or prosecute Montana citizens acting in
compliance with the MFFA, so long as they do so solely within the political
borders of Montana.”

WND also reported this week on a second front in the battle over guns when the Supreme Court agreed to hear a landmark Second Amendment case challenging Chicago’s ban on handguns and onerous registration procedures on other firearms.

The Illinois State Rifle Association and the Second Amendment Foundation filed a lawsuit against the city of Chicago claiming the city enforces a handgun ban identical to the one struck down by the Supreme Court in the case District of Columbia v. Heller and that the ban violates residents’ Second Amendment rights.

In Heller, the court rejected a lower court position that claimed the Second Amendment applied only to state “militia,” such as the National Guard. However, the 5-4 ruling referenced the federal jurisdiction of Washington, D.C., and not states and localities.

This case, McDonald v. Chicago, challenges a 7th Circuit court ruling that said the Second Amendment applies only to federal regulation of an individual’s right to guns and not in cases of restrictions by states and municipalities like Chicago and Oak Park, Ill.

The Second Amendment to the U.S. Constitution states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Furthermore, Section 1 of the 14th Amendment, or the Privileges or Immunities Clause, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The plaintiffs argue that “the right of the people to keep and bear arms” in the Second Amendment is “incorporated” into the 14th Amendment and applies to both states and localities.


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