Contending it is “fruitless” to expect that the federal government would rein in its own “lust” for tyranny, the instigator of a years-long conflict with Washington over the Interstate Commerce Clause says the battle is over.
At least for now.
Gary Marbut, president of the Montana Shooting Sports Association, said the lawsuit he and his organization brought to uphold the state’s rights on weapons will not be considered at the Supreme Court.
The court’s unwillingness to take the case leaves standing a decision by the 9th U.S. Circuit Court of Appeals that upheld a lower court’s decision to throw out the Montana Firearms Freedom Act.
The law states that firearms made and kept in Montana are exempt from federal regulation under the Commerce Clause, which gives the federal government authority to regulate commerce only “among” the states.
In a posting to supporters, Marbut wrote that the case is now at the end of the road, but a movement has been spawned.
The Montana Firearms Freedom Act, he said, “caught a sympathetic wave as the first legislation of its type in the U.S.”
“It was cloned and enacted in eight other states, and cloned and introduced in the legislatures of about 23 other states yet.”
Marbut said it’s clear that “a majority of the states of the U.S. are operating under the same frustration with the run amok federal government as is Montana.”
“Further, the MFFA inspired a whole wave of other ‘freedom acts,’ such as the light bulb freedom act, the whiskey freedom act, the tobacco freedom act, the healthcare freedom act, and others. Inspired by the MFFA, the U.S. is now alive with ‘nullification’ efforts at the state level – state efforts telling the federal government to back off,” he said.
All of that activity, Marbut said, means there is a need for the Supreme Court to step into this general controversy “if it has any hope to maintain respect for its historic-but-abandoned turf as any sort of check on the other federal branches.”
“This epic trip to the U.S. Supreme Court, and the court’s rejection of MSSA v. Holder have finally persuaded me that it is fruitless to expect any part of the federal government to control the lust for centralized and tyrannical power that our federal government displays,” he said.
Marbut said further that, perhaps more importantly, his case “proves that it is improper to rely on the federal government, or any branch thereof, to be the judge of what powers the states have delegated to the federal government in the Constitution.”
“As the creator of the Constitution and the federal government, only the states may properly or practically do that.”
WND has reported on the case since it began, including months ago when attorneys general from a dozen states argued that the 10th Amendment essentially has been overturned by decades of incorrect court rulings, and the Supreme Court needed to repair the damage.
“By abandoning any meaningful standard for the substantiality of an intrastate activity’s effects on interstate commerce, this court has enabled the Congress to ‘draw the circle broadly enough to cover’ activity, that when viewed in isolation, would have no substantial effect on interstate commerce at all,” representatives for the 12 states told the high court.
The states were Utah, Alabama, Alaska, Arizona, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota and Wyoming.
The Montana group had petitioned the high court to hear the case, arguing the federal bureaucracy has no authority to impose restrictions on a firearm made, sold and kept inside Montana.
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The plaintiffs said the U.S. Supreme Court has gradually expanded Washington’s authority under the Commerce Clause so that 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 ruled that a disputed statute need not “be a purely economic or commercial statute” to fall under the economic jurisdiction of the Commerce Clause.
States need to ‘check’ Washington
The state of Montana also argued that the independent power of the states “serves as a check on the power of the federal government.”
“If the states are to serve as a real ‘check’ or ‘control’ on federal overreaching, then this court’s Commerce Clause jurisprudence – or more specifically, its Necessary and Proper clause jurisprudence – must provide enforceable limits that are more than just hortatory. This is especially true at the ‘outer limits’ where, as here, Congress tries to regulate purely intrastate activity in the ‘areas of criminal law and social police, where ‘states lay claim’ by right of history and expertise,’” the state said.
“It is long past time for the federal government and the lower courts to stop using [their own precedents] as a license to engage in pure conjecture as to ‘substantial effects’ on interstate commerce. More ‘careful scrutiny’ is required if the ‘constitutionally mandated balance of power’ between the states and the federal government is to continue ‘to ensure the protection of our fundamental liberties.’”
The Center for Constitutional Jurisprudence argued in its brief that the limitations on the federal government to its constitutional duties are foundational.
“Among the powers not delegated to the federal government was the power to regulate the health, safety, and morals of the people – the so-called police power,” it contends. “[Those] always belong to the states.”
And the Weapons Collectors Society of Montana explained that at the time Montana agreed to become a state – and Congress approved its constitution – there were no regulations, limits or restrictions on Montana’s gun industry.
“At the time Montana entered the union, no federal regulation of firearms and ammunition existed, so it would be impossible for the parties to intend that the wholly intrastate manufacture of firearm or ammunition would be subject to federal regulation. … This impossibility also extends to the parties being able to see 50 years into the future to intend that the unforeseen change in Commerce Clause jurisprudence would limit the ability of Montana citizens from these activities.”
WND reported earlier when the shooting sports association filed its request.
A ruling was needed, it said, that would overturn existing precedent and re-establish the powers to which the federal government is limited, restoring the power given to states.
No power
The case argued 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, 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 said.
In his letter, Marbut charged that 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 insisted there is plenty of evidence for his assertion.
The movement to enforce states’ rights, as provided by the 10th Amendment, goes beyond gun rights, he said.
“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,” wrote Marbut.
He noted that 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 said.
“Frankly,” he wrote, “the working people of America are fed up with an overbearing federal government bent on regulating everyone and everything.”
Read Marbut’s letter
Peaceful revolution
In his letter, Marbut cited President John F. Kennedy’s warning: “Those who make peaceful revolution impossible make violent revolution inevitable.”
His lawsuit, he said, “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.)”
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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.
Montana Buckaroo
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 explained.
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 argued 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.
New Definitions
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 wrote. “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.’”
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Conflict
Marbut also argued 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 contended.
The U.S. Supreme Court, he said, “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 argued 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.”
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 presented to the Ninth Circuit were posted online:
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