Gun Group Files Final Brief in Firearms Freedom Case

Gun Group Files Final Brief in Firearms Freedom Case

Montana Shooting Sports Association
Montana Shooting Sports Association

Missoula, MT –-( 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.

Gary Marbut, president
Montana Shooting Sports Association
author, Gun Laws of Montana

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

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Bruce Anderson

regulate commerce … among the several states— Congressional power….? Law and Standards? I thought as such the only real power Congress had as to regulate Commerce was in fact from the view point of the federalist papers and the Stand point was only to regulate the Standard of a given worth of Money and or A weights and measures system because of the Gold Metal Standard of the time before paper money become a stable use as it is today. lets not for get that was a big problem with the time of the civil war when each state wanted… Read more »