The plaintiff in a Montana lawsuit seeking freedom from federal gun regulations has written an open letter to members of the U.S. Supreme Court, where his case soon is to be appealed, pleading with them to rein in the federal government’s arrogance and conceit.
“The natives are beyond restless. They are at the stage of collecting torches and pitchforks and preparing to head for the castle gates en masse,” writes Gary Marbut, president of Montana Shooting Sports Association and author of “Gun Laws of Montana.”
Marbut sued U.S. Attorney General Eric Holder in 2009 seeking a court order that would allow him to manufacture and sell within Montana his self-designed “Montana Buckeroo” .22 rifle without complying with federal gun laws.
He is defending a law he wrote, the Montana Firearms Freedom Act, which declares firearms that are manufactured in the state after Oct. 1, 2009, and remain in the state are exempt from federal firearms regulations.
The Ninth Circuit Court of Appeals ruled in August that his law is preempted by federal law requiring the recording of transaction, license fees and government inspection.
In his letter, Marbut charges the problem is “overweening federal power,” describing the government’s attitude as “overconfident, conceited, cocksure, cocky, smug, haughty, supercilious, lofty, patronizing, arrogant, proud, vain, self-important, imperious and overbearing.”
He insists there is plenty of evidence for his assertion.
“Nine states have enacted Firearms Freedom Acts, and 23 others have introduced FFA clones and may yet enact them,” he points out.
The movement to enforce states’ rights, as provided by the 10th Amendment, goes beyond gun rights, Marbut writes.
“Other states have enacted or introduced other ‘Freedom Acts,’ such as the Whiskey Freedom Act, the Light Bulb Freedom Act, and the Healthcare Freedom Act. But those only tell part of the story,” he says.
Marbut notes states are passing laws prohibiting enforcement of indefinite detention under the National Defense Authorization Act, the NDAA. Police agencies have publicly declared they will not enforce provisions of the Patriot Act, and some states have enacted various marijuana tolerance laws in defiance of federal law.
“These rejections of overweening federal power are happening not only at the state level, but at the county, city level, and with individual citizens,” he says.
“Frankly,” he writes, “the working people of America are fed up with an overbearing federal government bent on regulating everyone and everything.”
In his letter, Marbut cites President John F. Kennedy’s warning: “Those who make peaceful revolution impossible make violent revolution inevitable.”
His lawsuit, he says, “is our best, and could be the last or near last, attempt at the peaceful revolution we’d all emphatically prefer to the alternative Kennedy asserted.”
“It could well be that MSSA v. Holder marks an historical cusp similar to that served up to SCOTUS in Scott v. Sandford. (For any non-attorneys reading this, Scott v. Sandford is often known as the ‘Dred Scott decision,’ a Supreme Court decision thought by many historians to have been the spark that set off the Civil War, a decision that effectively upheld the institution of slavery.)”
The lawsuit was filed by Marbut and several firearms organizations in Montana after the state legislature adopted the Montana Firearms Freedom Act.
Washington maintains that under the Interstate Commerce Clause, it has the right to control commerce inside states, even though the constitutional provision specifies it’s for commerce “among” the states.
The case never was only about a Montana Buckaroo.
“I wrote the Montana Firearms Freedom Act (MFFA) in 2004, specifically to use firearms as the vehicle to challenge federal power under the Constitution’s Interstate Commerce Clause (ICC),” Marbut explains.
The lawsuit was thrown out by a federal district judge on grounds of standing and merit. The far-left leaning Ninth U.S. Circuit Court of Appeals disagreed, stating that the plaintiffs do have standing, but it affirmed the ruling on merit, opening the door to appeal to the U.S. Supreme Court.
Marbut argues in his letter that the problem traces back to President Franklin D. Roosevelt, who in a dispute over wheat price supports threatened to “pack” a Supreme Court with six extra justices so he could ram through his agenda of government control.
The Supreme Court folded, deciding the “Wickard” case in Roosevelt’s favor. The ruling formed the basis for the long string of later decisions that further tightened the federal grip on instate activities.
Marbut explained the court created new definitions for the terms “regulate,” “commerce” and “among,” which became a de facto amendment to the U.S. Constitution.
He said “commerce” was changed to mean “any economic activity, no matter how minor,” “regulate” was given the meaning “prohibit” and “among” was made to mean “within.”
“The word ‘among’ is a bit slippery to define, although we all grasp what it means,” Marbut writes. “However, we can easily define what it does NOT mean with a simple thought experiment: You say, ‘Among the three children they had enough money for two ice cream cones.’ I ask, ‘Is an X-ray machine required to find the money.’ You answer, ‘No, because the money is not within them, it is among them.’ Thus, we see clearly that the meaning of ‘among’ does NOT include ‘within.’ Yet to make the Wickard decision do what FDR wanted, SCOTUS had to redefine ‘among’ to mean ‘within.’
Marbut also argues in his letter to the Supreme Court that a standard principle of law is that provisions adopted later amend those adopted earlier. He notes that the Second Amendment, as well as the Ninth and 10th, were adopted after the commerce clause, and thus amended it.
“The laws that the U.S. asserts prohibit Montana from implementing the MFFA, and that prohibit me from making and selling the Montana Buckaroo sans federal regulation, are clearly a form of prior restraint,” he contends.
The U.S. Supreme Court, he says, “has been clear that prior restraint upon the exercise of constitutionally-protected rights is not to be lightly tolerated.”
“Because federal laws being applied inhibit exercise of Second, Ninth and Tenth Amendment reserved rights in advance, those laws neatly fit the prior restraint definition. Generically, prior restraint of a reserved constitutional right may not be done when supported only by a rational basis. It will be difficult or impossible for the U.S. to muster persuasive arguments to satisfy a level of review more strict than a simple rational basis concerning an asserted federal trump of the MFFA.”
He also argues that Montana entered statehood in 1889 under a compact, or contract, and the state accepted the U.S. Constitution as it was understood at the time.
“If the people of Montana had understood in 1889 that this proposed Compact would preclude them from being able to make firearms, or even repair firearms, without a federal license, I seriously doubt that the Montana Legislature would have approved the Compact and Ordinance 1.”
Specific performance of that contract would be an appropriate remedy, or in the alternative, “rescission.”
“We prefer not to rattle that particular saber, but that ultimate remedy remains an inescapable final option that cannot be blinked away,” he writes.
What the court needs to do, he said, is “reverse Wickard and all of its progeny, based on demonstration that the Wickard Court improperly amended the Constitution.”
“That would certainly take courage. But such a decision would repair a lot of wrong that has happened in our nation, and would reaffirm the proper principles by which our federal government is supposed to be governed.”
Or it could simply leave the federal bureaucracy untouched, he says.
“Suffice it to say that where the primary role of government is supposed to be to protect the liberties of the people, our federal government is charging madly down the road to transform the U.S. into some form of police state where everything that is not permitted by government is forbidden. That is simply unacceptable.
“The time will come very soon when the Kennedy equation is likely to tip decisively in one direction or the other. I dearly hope that SCOTUS will avail itself of MSSA v. Holder to shepherd in the much preferred peaceful revolution in President Kennedy’s equation. The alternative is too dire to contemplate, but remains clearly potential.”
Attorney Nick Dranias represented friend-of-the-court party the Goldwater Institute and others in the Ninth Circuit’s oral arguments, and Quentin Rhoades represented Marbut and Montana shooting interests.
The arguments before the Ninth Circuit have been posted online: