MSSA v. Holder was recently before the Ninth Circuit Court of Appeals, which reversed the District Court and confirmed that Marbut has standing to bring the action, but upheld the District Court that current case law is against the plaintiffs. That ruling gave plaintiffs the green light for this appeal to the Supreme Court. The Supreme Court is the only entity which may provide the remedy plaintiffs seek, because the requested relief requires overturning prior Supreme Court precedent.
MSSA v. Holder asks the Supreme Court to overturn federal laws regulating state-made and state-retained firearms based on rights reserved to the people and the states in the Ninth and Tenth Amendments to the U.S. Constitution. Plaintiffs argue that the Tenth Amendment reserves to Montana the right to enact and exclusively enforce the MFFA, and that the Ninth Amendment reserves to individual plaintiff Marbut the right to make and sell in Montana only, without federal regulation, a .22 caliber, youth model, bolt-action rifle called the “Montana Buckaroo.”
Plaintiffs have filed their petition for certiorari with the Supreme Court, a request for the Court to accept and decide the case. The State of Montana will also file a similar petition in defense of the MFFA. Plaintiffs will be joined by numerous other amicus curiae (friends of the court) in this request for the Court to accept and decide the case. Quentin Rhoades, a partner in the Missoula law firm Sullivan, Tabaracci and Rhoades, is the lead attorney for plaintiffs.
Marbut, both an individual plaintiff and President of organizational plaintiff MSSA, commented about the appeal, “We hope to persuade the Supreme Court that in 1942 the Court improperly yet effectively amended the Constitution by rewriting the definitions of three critical words in the Constitution, regulate, commerce, and among. Where 'regulate' had always before meant 'to make regular,' the court redefined it to mean 'prohibit.' Where 'commerce' had always meant gross trade, the Court effectively redefined it to mean 'any economic activity, no matter how minor.' And, the Court redefined 'among' to mean 'within.' With this improper amendment of the Constitution, the 1942 Supreme Court enabled a vast expansion of federal power, an expansion of power not otherwise given to the federal government by the enabling states.”
Marbut continued, “We also hope to persuade the Court that the Ninth and Tenth Amendments must prevail over an expansive application of the Interstate Commerce Clause, since the Ninth and Tenth were adopted subsequent to the Interstate Commerce Clause, and because of that later adoption must be seen as having changed the Commerce Clause and restrained its application. After all, the Ninth and Tenth Amendments did amend the Constitution – they're amendments. They were not just tacked on as useless and surplus verbiage.”
The Supreme court will decide sometime early in 2014 whether or not it will accept the case. If it does, all of the parties to the case will be required to submit an additional round of briefs about the merits of the case.
Since the MFFA was enacted in Montana, eight other states have enacted MFFA clones, and 23 other states have had or currently have MFFA clones introduced in their legislatures. That so many other states are taking the same position Montana has gives MSSA v. Holder significant momentum. Providing more momentum, numerous amici have joined the case. These include the Attorney General of Utah, who also represents the attorneys general of eight other states. It includes a group of Montana legislators, and another group of non-Montana legislators from states which enacted MFFA clones. It also includes several public interest law firms from across the U.S., and other groups interested in this suit. Attorney General Tim Fox is representing the State of Montana in the case.
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Gary Marbut: 406-549-1252; firstname.lastname@example.org
Quentin Rhoades: 406-721-9700; email@example.com
Gary Marbut, President
Montana Shooting Sports Association
Author, Gun Laws of Montana