Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James R. Conner.

 

24 August 2013

Ninth Circuit invalidates Montana Firearms Freedom Act

Yesterday the Ninth Circuit Court of Appeals handed down its decision in Mont. Shooting Sports Ass’n v Holder, reminding us that Montana’s legislature and governor do not always act wisely.

The story dates back to 2009, when Joel Boniek, then a Republican state representative from Livingston, introduced HB-246, better known as the Montana Firearms Freedom Act, and generally considered the brainchild of Gary Marbut, the firearms enthusiast from Missoula who is the Montana Shooting Sports Association. Section 4 of HB-246 stated in part that:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce.

Egregiously unconstitutional, HB-246 nonetheless passed the house 85 to 14, with all 50 Republicans and 35 of 50 Democrats voting for it. It passed the senate 29 to 21, with only two of that chamber’s Democrats voting Aye. Governor Schweitzer signed the bill on 15 April, leaving the issue for the federal courts. For all too many Democratic legislators and leaders, it was not a shining moment of political courage.

Three months later, on 16 July, the Bureau of Alcohol, Tobacco, and Firearms (ATF) published an open letter (PDF) to firearms licensees in Montana, warning them that federal law had not been nullified:

The passage of the Montana Firearms Freedom Act, Montana House Bill 246 (“Act”), effective October 1, 2009, has generated questions from industry members as to how this State law may affect them while engaged in a firearms business activity. The Act purports to exempt personal firearms, firearms accessories, and ammunition manufactured in the State, and which remain in the State, from most Federal firearms laws and regulations. However, because the Act conflicts with Federal firearms laws and regulations, Federal law supersedes the Act, and all provisions of the Gun Control Act and the National Firearms Act, and their corresponding regulations, continue to apply.

Marbut, who wanted to manufacture a rifle he called the “Montana Buckaroo,” a firearm he said would be made, sold, and presumably used, only in Montana, challenged the AFT in federal district court, which dismissed his case, ruling he lacked standing and had no claim. Marbut appealed to the 9th Circuit.

Flathead connection. More than a handful of organizations on both sides of the issue filed Amici Curiae briefs. Kalispell attorney Timothy Baldwin filed a brief for 30 legislators, among them Flathead Republicans Verdell Jackson, Keith Regier, Janna Taylor, and Ryan Zinke, and Democrats Shannon Augare, Margarett Campbell, and Kendall Van Dyke.

Boniek went on to other things that will stand out on his resume.

The Ninth ruled Marbut did have standing to sue, but had no claim because the MFFA was preempted by federal law and invalid, not exactly a surprising conclusion. Marbut hopes the U.S. Supreme Court will hear the case, although he probably isn’t betting his organic garden that it will. Meanwhile, he’s working to have similar legislation passed in other states.

If you’re not up to reading the full decision, here are the key paragraphs:

Marbut argues that the manufacture and sale of the Buckaroo are outside the scope of the Commerce Clause, and that federal licensing laws do not apply as a result. His primary argument is that an expansive interpretation of the Commerce Clause is inconsistent with dual sovereignty, and he laments the trajectory of the Supreme Court’s Commerce Clause jurisprudence. Marbut argues, for example, that “the Supreme Court’s Commerce Clause jurisprudence has improvidently altered the very form of American government, reading out dual sovereignty, and stripping from the States all independence of policy or action.”

Whether or not Marbut is correct in his critique of that jurisprudence, we are not free to disregard it. To his credit, Marbut acknowledges as much, recognizing that this court’s “hands are tied” with respect to binding precedent. Specifically, his opening brief states:

Appellants realize that in many respects, as regards the arguments so far made, the Court’s hands are tied. Appellants advocate for the case law being overturned, and an intermediate scrutiny test being applied. But the relevant case law has been promulgated by the Supreme Court, whose decision are controlling. See e.g., United States v. Stewart, 451 F.3d 1071, 1076 (9th Cir. 2006). Thus, even if the Court agrees with the reasoning, there are few remedies the Court is able to offer. One, however, would be to limit Raich to its facts, and distinguish it on grounds of its national defense implications.

Turning to the precedent from the Supreme Court and our own court that we are bound to follow, we conclude that Congress’s commerce power extends to the manufacture and sale of the Buckaroo, and that Raich cannot be read as limited to its facts, as Marbut urges.

In Gonzales v. Raich, the Court held that Congress may regulate a commodity under the Commerce Clause, in that case marijuana, if there exists a rational basis for concluding that the activities at issue, taken in the aggregate, substantially affect interstate commerce. 545 U.S. 1, 22 (2005). Congress may regulate even purely intrastate activity “if it concludes that the failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Id. at 18. We applied this test to the possession of firearms in United States v. Stewart, holding that Congress could prohibit the possession of a homemade machine gun because it could have rationally concluded that the possession of homemade machine guns would substantially affect the interstate market in machine guns. 451 F.3d 1071, 1077 (9th Cir. 2006); see United States v.

Henry, 688 F.3d 637, 638 (9th Cir. 2012).

Under Raich and Stewart, the regulation of the Montana Buckaroo is within Congress’s commerce power. Marbut intends to manufacture the Buckaroo under the Montana Firearms Freedom Act, which means that he will manufacture and sell it within the borders of Montana. See Mont. Code Ann. § 30-20-104. 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. 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. See id. § 30-20-106. Congress might reasonably determine that a “Made in Montana” stamp will not deter those seeking to purchase unregistered firearms in the interstate black market. See Stewart, 451 F.3d at 1077–78 (rejecting the argument that homemade machine guns were “unique” and so would not affect the market for commercial machine guns, noting that “those seeking [machine guns] care only whether the guns work effectively”).