Can feds bulldoze state constitutional protections?

By Bob Unruh

L to R Nick Dranias, attorney for Goldwater Institute; Gary Marbut; Quentin Rhoades, attorney for Marbut, MSSA

In a courtroom gun fight that has the potential to disrupt many of Barack Obama’s plans for national gun lists, laws and limits, attorneys have told the 9th U.S. Circuit Court of Appeals that the U.S. Constitution does not give Washington unlimited authority to bulldoze over state efforts to protect the constitutional rights of their citizens.

At issue is the years-old Montana Firearms Freedom Act, which was argued before the appeals court in a special session in Portland, Ore.

The law simply says firearms made, sold and kept in Montana are not subject to federal interstate commerce regulations.

Attorney Nick Dranias, who represented the amicus parties of the Goldwater Institute and others in the arguments, 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 that “There is a fundamental right protected by the Second Amendment.”

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“What we’re arguing is this case should not have been dismissed,” he said. Plaintiffs need to be allowed to “develop the legal theory [that] is now plausible under U.S. Supreme Court precedent.”

“We believe if there were discovery in this case, it would reveal the claim of incidental power to regulate this sort of manufacturing is vastly greater…” he said.

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.”

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Quentin Rhoades, an attorney representing plaintiff Gary 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.

The judges raised questions about other states adopting similar laws, whether Congress has the authority to order states how to allow citizens to defend themselves and intrastate and interstate commerce.

One of the justices admitted his knowledge of guns without serial numbers comes largely from “watching ‘Law and Order.'”

Rhoades explained, “As it stands right now, criminals in urban areas are stealing guns, scraping serial numbers off and using them in crimes.”

Listen to the arguments:

[jwplayer QEPtyYuQ]

Rhoades said, “People are stealing guns in all 50 states and using them for crimes.”

But the judges admitted that the Montana strategy is “like the Declaration of Independence.”

Rhoades said, “We would argue the Constitution does not give the authority to Congress to regulate intrastate.”

Marbut said the judges “seemed bored” with Department of Justice arguments that he didn’t have standing in the case because he was not yet manufacturing weapons.

WND has reported on the case that essentially is a challenge to Washington’s death-grip on gun rules across the nation. It had been stalled at the appellate level for nearly two years.

The case was brought on Oct. 9, 2009, when the Montana Firearms Freedom Act went into effect, and Marbut explains, “We need to get to the U.S. Supreme Court in order to overturn a century of bad Commerce Clause precedent.”

Officials who have worked on the MFFA, which simply declares that guns made, sold and kept in the state of Montana are exempt from federal limits and requirements, also prompted similar legislation in seven other states.

Among those are Tennessee (SB1610); Utah (SB11); Wyoming (HB95); South Dakota (SB89); Arizona (HB2307); Idaho (HB589); and Alaska (HB1860). Representing a consensus among the states on the limits of federal power, additional copies of the MFFA were also introduced in the legislatures of 23 other states, for a total of 31 jurisdictions where it has been enacted or introduced.

Those laws are on hold pending the outcome of Montana’s court challenge.

A federal judge in Montana determined that the state could not do what it wanted.

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.

Quoting 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,” the brief explains.

“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 $[16] 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.

Also filing briefs with the 9th Circuit were Gun Owners of America and the Goldwater Institute and Cato Institute, who argued the U.S. Supreme Court has determined “Congress may not ‘commandeer’ state legislatures by requiring them to legislate as directed by the federal government.”

It was U.S. District Judge Donald Molloy who affirmed the “findings” of Magistrate Jeremiah Lynch in dismissing the case.

The Montana Firearms Freedom Act has been 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.

Now, states also are fighting back against members of Congress and officials with regulatory authority who are beginning to apply Obama’s gun ban agenda.

Several legislatures already are developing bills that would simply pull the rug from under the president’s agenda by specifying that unconstitutional rules or regulations, or executive orders, won’t be allowed.

Rep. Kendell Kroeker of Wyoming introduced HB 104, The Firearms Protection Act, and spoke to WND about the bill.

“The new bill expands to any gun owned in Wyoming and any gun regulation handed down that has to do with banning automatic rifles, banning magazines or gun registration will not apply to any gun, so long as they stay in Wyoming,” he said.

Texas Rep. John Otto, R-Dayton, filed HB553 to make it a misdemeanor for state or federal officials to “enforce or attempt to enforce any acts, laws, executive orders, agency orders, rules or regulations of any kind whatsoever of the United States government relating to confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore.”

Missouri, Tennessee, South Dakota and South Carolina also have worked on similar ideas.


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