Montana firearms activists want Washington to butt out – and stop interfering in gun sales that take place within the state's borders.
They're asking the U.S. Supreme Court to rein in the "tyranny" that is coming out of Washington by recognizing again the Ninth and 10th Amendments, which limit the federal government to specific actions.
The petition to hear the case comes from the Montana Shooting Sports Association and its president, Gary Marbut. It claims the federal bureaucracy has no authority to impose restrictions on a firearm made, sold and kept inside the state of Montana.
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After all, the plaintiffs argue, moving the firearms within the state is not interstate commerce and, therefore, would not be subject to the U.S. Constitution's Commerce Clause.
However, over the years, the U.S. Supreme Court has gradually expanded Washington's authority under the Commerce Clause so that now, they say, anything can be regulated under it.
For example, various courts have ruled that under the Commerce Clause, a local law "tracking sex offenders" cannot be allowed because "any effect on interstate commerce from requiring sex offenders to registered is too attenuated to survive scrutiny under the Commerce Clause."
Further, another court ruling found that a disputed statute need not "be a purely economic or commercial statute" to fall under the economic jurisdiction of the Commerce Clause.
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That real tyranny is coming from Washington cannot be argued, the petition to the Supreme Court insists.
"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 $17 trillion national debt (which amounts to more than $149,000 per taxpayer) may be the worst example.
The brief notes the cry of the American Revolution, "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," it says. "Our progeny did not consent to the monumental hole their parents are digging for them. Still, they will certainly be saddled with the duty to make good.
"This is tyranny."
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The brief argues that a wrongly decided case can be corrected in the American system by a rightly decided decision on the same issue.
"Case law decided in error can be overruled," the brief argues.
A ruling is needed, it says, that would overturn existing precedent and re-establish the powers to which the federal government is limited, restoring the power given to states.
The brief cites the Ninth and 10th Amendments.
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The Ninth Amendment states: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."
The 10th says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Nine states already have adopted measures similar to the Montana Firearms Freedom Act.
The brief argues: "Plenary power in the hands of Congress should be reconsidered, and dual sovereignty restored, because, as matters now stand, powerless and dependent states cannot fulfill their intended functions as bulwarks against tyranny."
The case argues Congress has no power unless it is specifically granted by the U.S. Constitution.
Marbut, who has been barred by the federal government from building and selling a "Montana Buckeroo" rifle, recently released an open letter to members of the U.S. Supreme Court.
"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," he says.
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.
He says the movement to enforce states' rights, as provided by the 10th Amendment, goes beyond gun rights.
"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 as well as the Second Amendment Foundation after the state legislature adopted the Montana Firearms Freedom Act.
Washington maintains that under the 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 in-state 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: