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,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: www.mtssa.org