Supremes shoot down state's fight for gun rights
'It is fruitless to expect federal
government to control the lust for tyrannical power'
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.
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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Amendment Guide” and the NRA’s Wayne LaPierre has assembled the facts you need
to protect your constitutional rights.
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.’”
Read Wayne LaPierre’s
documentation of “America Disarmed: Inside the U.N. & Obama’s Scheme to
Destroy the Second Amendment.”
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:
9th U.S. Circuit Court of Appeals
Ninth Circuit Strikes Down CA Law Restricting Concealed
Carry (Past Research for the Ninth Circuit)
Friday,
February 14, 2014
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