Metropolitan News-Enterprise


Monday, August 26, 2013


Page 3


Ninth Circuit Cites Commerce Clause, Throws Out Pro-Gun Montana Law


From Staff and Wire Service Reports


State laws seeking to define the scope of the Commerce Clause so as to bar federal regulation of gun makers who manufacture and sells their weapons within a single state are preempted and unenforceable, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel sided with the federal government, upholding U.S. District Judge Donald Molloy’s dismissal, for failure to state a claim, of a suit by the Montana Shooting Sports Association and its president, Gary Marbut. The court held that the 2009 Montana Firearms Freedom Act does not give Marbut the right to manufacture a gun, solely for sale within the state, without a federal license.

Marbut said he wanted to manufacture a small, bolt-action youth-model rifle called the “Montana Buckaroo” for sale to Montana residents only. Marbut said his potential customers “do not want . . .and will not buy” the Montana Buckaroo if manufactured by a federal firearms licensee,” and that he also has an opportunity to sell ammunition to a state agency if he can manufacture it without a federal license.

Following passage of the MFFA, the federal Bureau of Alcohol, Tobacco and Firearms informed all Montana gun dealers that the statute conflicts with federal firearms laws, and that federal law supersedes the state act and continues to apply. The ATF also warned Marbut, in response to his inquiry, that “unlicensed manufacturing of firearms of ammunition for sale . . . is a violation of Federal law and could lead to . . . potential criminal prosecution.”

Judge Richard Clifton, writing for the Ninth Circuit, agreed with Marbut that he had an economic interest in the matter, and therefore had standing to sue. But he said the district judge was right on the merits, because the federal government has the power to regulate gun making, even under the circumstances envisioned by Marbut.

He pointed to a case that concluded homemade machine guns could affect the regulated interstate market of machine guns.

“But even if Marbut never sells the Buckaroo outside of Montana, Congress could rationally conclude that unlicensed firearms would make their way into the interstate market,” the judge wrote. “This result does not change because the Buckaroo will bear a ‘Made in Montana’ stamp to distinguish it from firearms that may be sold in the interstate market.”

Senior Judge A. Wallace Tashima joined Clifton’s opinion. Judge Carlos Bea wrote separately, saying he agreed that Marbut needed a federal license to make the Buckaroo, but that it was unnecessary to determine whether the MFFA was preempted.

Marbut said he expected the appeals court would rule against the law.

“This was about as good of a ruling as we could have expected from the 9th Circuit. We must get to the U.S. Supreme Court to accomplish our goal of overturning 70 years of flawed Supreme Court rulings on the interstate commerce clause,” Marbut said in a release. “Only the Supreme Court can overturn Supreme Court precedent.”

Marbut said the federal government has become a “monster,” that abuses the interstate commerce clause to intrude on states.

The case was argued by Quentin M. Rhoades of Missoula for the plaintiffs, Mark R. Freeman of the Department of Justice for the government, and Nicholas C. Dranias of The Goldwater Institute for that organization and the Cato Institute as amici.

Gil N. Peles and Noemi A. Blasutta of Proskauer Rose LLP in Los Angeles authored an amicus brief for the Brady Center and other pro-gun control and law enforcement groups.

Among those authoring amicus briefs supporting the plaintiffs were Steve Bullock, who was attorney general of Montana when the brief was written and is now its governor; Timothy C. Fox, who was in private practice at the time and is now the state attorney general; former Alaska U.S. Senate candidate Joe Miller; Gary G. Kreep, formerly of the United States Justice Foundation and now a San Diego Superior Court judge; the attorneys general of Utah, Alaska, Idaho, Michigan, Nebraska, South Carolina, South Dakota, West Virginia, and Wyoming; former California attorney general candidate John Eastman; and Sharon L. Browne and Adam R. Pomeroy of the Pacific Legal Foundation.

The case is Montana Shooting Sports Association v. Holder, 10-36094.


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