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Montana Shooting Sports Association

Missoula, MT --(Ammoland.com)- A couple of you have asked for an update on the lawsuits MSSA is involved in. There are two in process and one maybe in the works.

Campaign spending. MSSA is a plaintiff in a lawsuit now before the Montana Supreme Court attempting to implement in Montana the Citizens United v. FEC decision by the US Supreme Court.

In the Citizens United case, the USSC held that corporations, as accumulations of individuals, cannot be prohibited from spending to influence the outcome of elections. Montana officials said that notwithstanding this USSC decision, Montana intended to continue enforcing its ban on corporate spending in elections. So, MSSA joined in a lawsuit in state court to force Montana to comply with the decision of the USSC.

In the Montana lawsuit, MSSA argued that it is a non-profit corporation under Montana law, specifically founded to play in politics. Further, MSSA argued, that MSSA members expect MSSA to spend their dues money to elect good and sympathetic people to office in Montana. Therefore, MSSA concluded, the prohibition on corporate spending prohibition should be ended in Montana for the same reasons given by the USSC in the Citizens United decision.

The state district court agreed with MSSA. The State of Montana appealed the district court decision to the Montana Supreme Court. The case has been argued there. We are now awaiting a decision by the MSC.

Montana Firearms Freedom Act. Most of you know that the Montana Firearms Freedom Act, invented and championed by MSSA and enacted in 2009, was designed to challenge federal power asserted under the power given to the federal government in the Constitution to “regulate commerce … among the states” – the Commerce Clause. The MFFA declares that any firearms made and retained in Montana are not subject to any federal authority under the Commerce Clause. Firearms are the vehicle for this exercise, but the subjects of the exercise are the Commerce Clause, federal power, and the Ninth and Tenth Amendments.

MSSA filed suit, along with the Second Amendment Foundation, in federal district court on October 1, 2009, the day the MFFA became effective, in attempt to validate the principles of the MFFA. This suit is MSSA v. Holder (U.S. Attorney General Eric Holder) We hope to reverse a half-century of bad Commerce Clause court precedent that currently gives the federal government carte blanche authority to regulate anything and everything, including non-commerce that happens wholly within one state. Because existing precedents are established by the U.S. Supreme Court, we must get all the way to the USSC to achieve the goal we seek.

The federal district court in Missoula ruled against us, as expected. We appealed to the Ninth Circuit Court of Appeals. MSSA and its many amicus partners have filed all the necessary briefs with the Ninth Circuit, and we’ve been waiting for the Ninth Circuit to designate a three-judge panel to hear the suit, and to set oral argument.

We just learned today that the Ninth Circuit has applied a stay of proceedings to MSSA v. Holder until it decides the case of Nordyke v. King, a Second/Fourteenth Amendment case that has been kicking around California for a decade. The question in Nordyke is whether the Second Amendment prevents a municipality in California from barring a gun show from the local public fairgrounds. Because the USSC ruled recently in McDonald v. Chicago that the Fourteenth Amendment causes the Second Amendment to restrict state and local governments, the Ninth Circuit has allowed a rehearing of a previously adverse decision in Nordyke.

Frankly, I don’t quite see the connection – why the Ninth Circuit thinks MSSA v. Holder is similar to Nordyke, so it should hold up looking at MSSA until it re-decides Nordyke. MSSA v. Holder is not primarily a Second Amendment case. It is primarily about the Commerce Clause and the Ninth and Tenth Amendments. By contrast, Nordyke is a Second/Fourteenth Amendment case.

But then, maybe the Ninth Circuit just hasn’t grasped that difference. Or, maybe the Ninth Circuit is taking seriously MSSA’s claim that the involvement of the Second, Ninth and Tenth Amendments in MSSA v. Holder will require the courts to apply a standard of review to Commerce Clause asserted power other than the historic and slam-dunk “rational basis” used for all prior Commerce Clause precedents.

If you want to know more about all of this, you may read a couple of short essays I wrote:

• Jury-rigging the Commerce Clause
• Making Sense of the Ninth Amendment and the Montana Firearms Freedom Act Interplay

So, now we wait for the Ninth Circuit to decide Nordyke (again) before it will consider MSSA v. Holder. Stay tuned, but don’t hold your breath.

Helena ban on possession of loaded guns. The Montana preemption law at 45-8-351 prohibits cities and counties from regulating firearms, except for narrow conditions defined in that law. Notwithstanding this prohibition, the City of Helena has a longstanding ordinance on its books that makes it a crime to possess a loaded firearm within the City of Helena. MSSA has written a letter to the City Attorney demanding that Helena amend this ordinance to cause it to conform to state law. We’re still waiting for an answer (that probably won’t come). Meanwhile, we are discussing with attorneys a lawsuit against the City of Helena to force the City to comply with state law.

That’s enough for now. Merry Christmas to all of you!

Best wishes,

About Montana Shooting Sports Association:
MSSA is the primary political advocate for Montana gun owners. Visit: www.mtssa.org

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Gun Group Files Final Brief in Firearms Freedom Case

Montana Shooting Sports Association

Missoula, MT --(Ammoland.com)- The Montana Shooting Sports Association has filed its final brief before the Ninth Circuit Court of Appeals in San Francisco in MSSA v. Holder, litigation designed to validate the principles of the Montana Firearms Freedom Act and to challenge federal power under the U.S. Constitution’s Interstate Commerce Clause to regulate any activity that occurs entirely within a state.

MSSA v. Holder is before the Ninth Circuit on appeal from the federal district court in Missoula, Montana, where the case was dismissed on grounds of standing, jurisdiction and merit. MSSA previously submitted its appellant’s brief and U.S. Attorney General Eric Holder filed his response brief. The Ninth Circuit is expected assign the case to a three-judge panel and probably schedule oral argument in Seattle or Portland within a couple of months.

If the three-judge panel of the Ninth Circuit upholds the district court dismissal, the case will then be ripe for appeal by MSSA to the United States Supreme Court, the ultimate destination for MSSA, which admits that only the USSC can provide the remedies MSSA seeks. MSSA wishes to reverse a half century of precedent decisions concerning federal authority under the Interstate Commerce Clause, decisions which MSSA believes give the national government far too much power to regulate essentially all human activity, even if that activity is wholly confined within the borders of a state.

This challenge to federal power is a states’ rights exercise that began with passage of the Montana Firearms Freedom Act by the Montana Legislature in 2009. The MFFA declares that any firearms made and retained in Montana are not subject to federal regulation. The MFFA was subsequently cloned and enacted by seven other states, and has been introduced in another 23 states. While firearms are the vehicle for the exercise, the subject is resuscitation of the Tenth Amendment to the U.S. Constitution and challenge to unrestrained power of the national government.

Although much ignored by Congress and the courts in the past half century, the Tenth Amendment requires: “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.”

Because the Tenth Amendment, part of the Bill of Rights, was enacted more recently than the underlying Constitution, MSSA argues, the Tenth Amendment actually amends the underlying Constitution and must be given deference when in conflict with the Interstate Commerce Clause, and with other relevant clauses of the underlying Constitution.

MSSA President Gary Marbut commented, “We are making some fresh and compelling arguments that have never been made before in Interstate Commerce Clause jurisprudence. We hope that these arguments will persuade the Ninth Circuit, and ultimately the United States Supreme Court, to rethink their rationale for allowing unlimited regulation of the affairs of people within states, a rationale more often called into question in current legal philosophy. When the states created the national government, they simply did not intend to create a monster that could and would control everything.”

The lead attorney for MSSA is Quentin Rhoades of the law firm Sullivan, Tabaracci and Rhoades of Missoula. The Second Amendment Foundation is a plaintiff in the suit, as is Gary Marbut of Missoula as the sole individual plaintiff. Numerous other entities have joined the case to support MSSA, including Montana Attorney General Steve Bullock, Utah Attorney General Mark Shurtleff who also represents six other states’ attorney generals, the Goldwater Institute, the Pacific Legal Foundation, numerous Montana legislators, legislators from other states where MFFA clones have been passed or introduced, and the Weapons Collectors Society of Montana. All of these groups have also submitted supporting briefs to the Ninth Circuit in MSSA v. Holder.

MSSA v. Holder argues some points similar to Bond V. US and Florida v. DHHS. Florida is a challenge to the power of Congress to implement national health care – to require individuals to buy health insurance claiming that an individual’s failure to buy health insurance would affect interstate commerce and therefore falls under the power of Congress in the Interstate Commerce Clause to “regulate commerce … among the several states”. Bond is a recent, unanimous decision by the USSC that argues very favorably that respect must be given to the Tenth Amendment.

Contrary to some recent criticism contained in a front page story about the MFFA litigation in the Wall Street Journal, MSSA is advancing MSSA v. Holder with zero financial support from Montana taxpayers.

About Montana Shooting Sports Association:
MSSA is the primary political advocate for Montana gun owners. Visit: www.mtssa.org

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