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Gun case defying feds heads to appeals court

Posted By Bob Unruh On 10/03/2010 @ 10:23 pm In Front Page | Comments Disabled

A Montana lawsuit that could undercut the authority of the federal government on issues including guns, marijuana, REAL ID, health care, the national guard, taxes and even law enforcement is poised to move to the 9th U.S. Circuit Court of Appeals.

But even that august body is unlikely to resolve the contentions, since the authors of the original claim, which challenges the feds’ authority to regulate guns made, sold and kept within a state, say they need the U.S. Supreme Court to act.

“We’ve believed all along that the federal district court cannot grant the relief we request,” said Gary Marbut, chief of the Montana Shooting Sports Association, which along with partner the Second Amendment Foundation brought the original lawsuit against the federal government.

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“We seek to overturn a half-century of bad precedent. Only the U.S. Supreme Court can do that. In that light the pending dismissal by the district court means little except that we are now free to move to the next step of the process,” he said.

An order from U.S. District Judge Donald Molloy that was filed this week confirms the “findings” of Magistrate Jeremiah Lynch who recommended the case be dismissed.

“The court having reviewed Magistrate Jeremiah C. Lynch’s findings and recommendations together with the objections of the plaintiffs and intervenor and the response filed by the defendant … it is hereby ordered that Judge Lynch’s findings and recommendations are adopted in full,” Malloy ordered.


How Montana’s gun-law plans have spread

The gun organizations sued in federal court to validate a law enacted in Montana by the 2009 legislature that 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.’”

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The Montana Firearms Freedom Act is described as part of a growing national effort by states to reject federal authority and control when that authority is not included in the Constitution.

Officials at the Tenth Amendment Center, in fact, have a long list of issues over which there currently are campaigns to “nullify” or void Washington interference.

Those include firearms regulations, medical marijuana laws, REAL ID, health care, the use of the National Guard, taxes, the authority of sheriffs and others.

The Firearms Freedom Act is law right now in Montana, but gun rights groups caution their members against taking full advantage of its provisions until the court case resolves.

At the national Firearms Freedom Act website, officials there confirm that lawmakers in Tennessee, Utah, Wyoming, South Dakota, Alaska, Idaho and Arizona already have adopted their own versions of Montana’s law.

Further, the case has attracted a massive level of support from other organizations who are participating through various amici – or friend of the court – briefs. Those include the State of Utah, which also represents other states; the Goldwater Institute, the Paragon Foundation, Gun Owners of America, the Weapons Collectors Society of Montana, Montana’s lawmakers, and lawmakers from several other states.


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Once the 9th Circuit rules, Marbut said, the plaintiffs intend to appeal any continuation of the dismissal to the U.S. Supreme Court. Or, he said, the 9th Circuit could return the case to the district court for trial.

“That the U.S. is so desperate to keep this matter from going to trial,” Marbut said, “tells me that they are very afraid of any precedent that might be established. Normally, a motion to dismiss is to preserve judicial economy. In this case it is to prevent a fair hearing on the significant issues we raise. The federal government doesn’t want any questions about the extent of its power.

“The vehemence of the recommendations by the magistrate involved,” he said, “demonstrates the desperation of the federal government, including its judicial branch, to prevent a fair adjudication of the issues underlying the MFFA.”

The magistrate, in fact, stooped to name-calling, describing the plaintiffs as “myopic.”

But Marbut told WND that the reaction he’s getting from the grassroots is one of unqualified endorsement.

“They think it’s a wonderful idea,” he said. He called the support a “groundswell” and suggested it is running parallel to the initiatives undertaken by tea party groups to squelch the domineering activities of the federal government.

Montana’s 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 federal government had written gun dealers in Montana, as well as in Tennessee, which also adopted its own version of the same law, that warned against following the state laws.

Alaska was the eighth state to declare that firearms made, sold and owned in the state are beyond the reach of the federal bureaucrats along the Potomac. When South Dakota’s law was signed by Gov. Mike Rounds, a commentator said it addresses the “rights of states which have been carelessly trampled by the federal government for decades.”

Michael Boldin of the Tenth Amendment Center said Washington likely is looking for a way out of the dispute.

“I think they’re going to let it ride, hoping some judge throws out the case,” he told WND earlier. “When they really start paying attention is when people actually start following the [state] firearms laws.”

WND reported when Wyoming joined the states with self-declared exemptions from federal gun regulation. Officials there took the unusual step of including penalties for any agent of the U.S. who “enforces or attempts to enforce” federal gun rules on a “personal firearm.”

The costs could be up to two years in prison and $2,000 in fines for an offender.


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