The famously left-leaning 9th U.S. Circuit Court of Appeals has affirmed the dismissal of a lawsuit against the federal government over its gun restrictions, ruling the plaintiffs failed to state a claim.
The expected decision now clears the way for a battle that could end up in the U.S. Supreme Court over state sovereignty, alleged regulatory overreach, the right to self-defense and even the compact under which Montana became a state.
“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,” said Gary Marbut of the Montana Shooting Sports Association.
“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.”
The appeals court said although Marbut holds standing to challenge the federal regulation of weapons made, sold and kept inside a state’s borders, the case didn’t state a claim, so it should be dismissed.
Marbut had told WND when the action first commenced in 2009 that the goal was to reach the Supreme Court, and the district court and appellate court rulings were just stepping stones.
The Montana Firearms Freedom Act was enacted in Montana and signed into law by Gov. Brian Schweitzer in 2009.
It declares that a firearm made and retained in Montana is not subject to any federal regulation under the power given to Congress in the U.S. Constitution to “regulate commerce … among the states.”
If it remains inside the state, there is no “commerce … among the states,” the case argued.
The plaintiffs in the action that names Attorney General Eric Holder are the Montana Shooting Sports Association, the Second Amendment Foundation and Marbut, president of MSSA.
To set up the legal challenge, Marbut made plans 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.
Marbut said the attorneys involved are already beginning to work on the appeal process.
“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,” he said.
Since the MFFA was initially enacted in Montana, nine other states have enacted similar laws, and more than 20 additional states have introduced MFFA-clone bills.
The lawsuit to validate the MFFA principles, MSSA v. Holder, has attracted many intervenors. They 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 and the Pacific Legal Foundation.
The appeals court said Marbut’s plans to make a rifle, and the fact that his business plans were destroyed by the federal government’s regulations, give him standing.
“The economic injury caused by a proscriptive statute is sufficient for standing to challenge that statute,” the ruling said.
Marbut argued the weapon was a Montana product, not subject to federal regulations.
“The Supreme Court’s Commerce Clause jurisprudence has improvidently altered the very form of American government, reading out dual sovereignty and stripping from the states all independence of policy or action,” he said in his brief.
His said he knew the 9th Circuit couldn’t overturn Supreme Court precedent, and the judges agreed.
“Whether or not Marbut is correct in his critique of that jurisprudence, we are not free to disregard it. To his credit, Marbut acknowledges as much, recognizing that this court’s ‘hands are tied’ with respect to binding precedent.”
Attorney Nick Dranias, who represented friend-of-the-court party the Goldwater Institute and others in the oral arguments, had said the case should be returned to the lower court for discovery and development of evidence, because it is a case of first impression and the lower courts dismissed it without that opportunity.
He asked the judges to remember that the federal government was created by the states and that the states granted certain limited powers to the federal government. Where those rights were not granted to Washington, the states’ people retain all rights.
Dranias said the issues of self-defense are of prime importance and should be considered to be retained by the people. Recent U.S. Supreme Court rulings, in fact, he noted, have confirmed there is “a fundamental right protected by the Second Amendment.”
The Constitution, after all, he pointed out, “allows for the states to use the powers they have to define and protect the rights not delegated to federal government.” The case is “to remind the courts and society of the context of the Constitution. The powers the federal government claimed cannot trench on the rights claimed by the people.”
Quentin Rhoades, an attorney representing Marbut and Montana shooting interests, said they have been caught in the crossfire of Congress’ desire to battle violent crime in urban areas and the violent criminals who reside there.
Listen to the arguments:
WND has reported that the case essentially is a challenge to Washington's increasing attempts to curb the right to bear arms.
When South Dakota's law was signed by then-Gov. Mike Rounds, a commentator said it addresses the "rights of states which have been carelessly trampled by the federal government for decades."
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 there.
Filings previously submitted to the appellate panel challenge whether the judges will choose a "tyrannical" Washington or a federal government restrained by the Constitution.
Citing Alexander Hamilton's statement that the federalism system was intended to suppress "attempts of the government to establish tyranny," a brief filed by the Montana Shooting Sports Association, the Second Amendment Foundation and Marbut states:
"The government may argue that it is not, in its current incarnation, tyrannical. The national government usually abides by the law, typically protects its citizens' rights, and always celebrates in its peaceful transfers of power. Whatever fear appellants or anyone else may have of its becoming tyrannical, the government may argue, is no more than disingenuous alarmism.
"Such an argument would be wrong."
The brief explains the federal government already has proven that it is tyrannical.
"The wholesale stripping of independent sovereignty from the states has destroyed the balance of power, and given the federal government advantages it demonstrably tends to abuse. The outrage that is our $ trillion national debt may be the worst example. The borning cry of the American Revolution was 'no taxation without representation.' By borrowing more money than the current generation can repay in our lifetimes, Congress leaves a legacy of debt for future generations. Our progeny did not vote for the monumental hole their parents are digging for them. Still they will certainly be saddled with the duty to make good. This is tyranny."
The plaintiffs also have argued that the U.S. reneged on the promises that were made when the territory of Montana became a state in 1889.
The Weapons Collectors Society in Montana points out that Montana became a state in the union under a legal compact, and at the time it was "the understanding of the parties that the United States Constitution would not be construed by the federal government to deny or disparage the rights reserved by the people of Montana and by the state, including the right to regulate and engage in the intrastate manufacture and sale of guns and ammunition."
"The compact states on its face that it may not be amended without consent of both the state of Montana and the United States… The appellee's assertion the MFFA is preempted by federal law is an attempt to unilaterally amend that contract … and is, therefore, unenforceable."
The organization, representing hundreds of gun enthusiasts across the state, explains how strongly Montanans felt then – and feel now – about their right to defend themselves:
It cannot be fairly disputed that firearms making and selling was occurring within the boundaries of Montana in 1889. Those manufacturing activities were not regulated by the federal government at that time. … It is difficult to envision that those who negotiated the terms of the compact in 1889 did not understand that the state reserved the right to regulate those firearms manufacturing/selling activities within Montana at the time of the making of the compact or had agreed the people of Montana had given up forever their ability to make and sell firearms without first obtaining the federal government's permission.
It is unlikely that the negotiators to the compact understood the text of the U.S. Constitution to allow the federal government to regulate in any way the right to make, keep, bear, and sell arms.
Indeed, it could be argued that Montana would not have agreed to join the Union if the federal government had, at that time, suggested that it was going to enact legislation similar to the [Gun Control Act] or [National Firearms Act] and subject Montana citizens to federal criminal prosecution and civil penalties for engaging in local firearms dealing.
A brief from the Center for Constitutional Jurisprudence and 15 state legislators from Indiana, Colorado, Utah, West Virginia, New Hampshire, Idaho, Oklahoma and Minnesota pointed out that the federal gun laws were set up to "assist state and local authorities with the control of local crime," but that's an area of concern over which Congress has no authority.
A number of Montana legislators submitted a brief that said the Tenth Amendment is the "final safeguard" against federal encroachment on state authority. And a brief from the states of Utah, Alaska, Idaho, Michigan, Nebraska, South Carolina, South Dakota, West Virginia and Wyoming said Washington's "enumerated powers" under the Constitution simply don't include the authority to regulate intrastate activity.