November 20, 2019

MONTANA GUN GROUP DEMANDS ANSWERS FROM POLITICAL PRACTICES MOTL MISTAKES USED TO JUSTIFY DEROGATORY DECISION

Press Release from the Montana Shooting Sports Association:

(August 27, 2016)
MISSOULA – Montana’s primer advocate for gun owners has demanded answers to critical questions from the political appointee currently enforcing campaign laws in Montana.  Gary Marbut, president of the Montana Shooting Sports Association (MSSA) sent a letter
Friday to Jonathan Motl, the controversial Commissioner of Political Practices (COPP), asking how the Commissioner could justify using wrong facts in a Decision derogatory to MSSA.
Marbut says that Motl’s handling of a Complaint about MSSA showed bias and impropriety from the beginning because Motl chose to not publish Marbut’s April 14th Response
to the Complaint in the public space of the COPP Website, although Motl did choose to publish both the Complaint and his Decision there. “This one-sided use of public funds makes the Commissioner’s effort look like a dedicated attempt to smear MSSA and me,” Marbut said.  About Motl’s publication of the Complaint but non-publication of Marbut’s Response, Marbut’s letter asks, “Am I being treated fairly?”
In his August 16th Decision,
Motl claims that Marbut and/or MSSA violated public disclosure law when a submitted form failed to include a list of candidates MSSA would support in the 2014 Primary Election.  However, the Decision also admits that the required list was indeed submitted. (Finding of Fact No 14:)  “The Commissioner determines that the disclosure set out in FOF No. 14 meets the requirements of Montana law.” (Decision, Page 8)  The problem, it seems, is that COPP attached the MSSA-provided list to the wrong COPP form when two forms and the list arrived in the same envelope at the COPP office.  This error by COPP, Motl claims, proves that MSSA broke the law.
In his August 25th letter to Motl, Marbut asks if it wasn’t actually COPP that “fell short of its responsibility to keep the public informed by failing to attach the provided list of candidates to the correct COPP form.”
Motl’s Decision also faults MSSA for not providing quarterly Federal Election Commission (FEC) reports to COPP.  Motl’s Decision states, “… MSSA filed no copies of its federal PAC (Political Action Committee, GM) reports with COPP.”  (Decision, Page 4)  Rebutting this factually incorrect claim by COPP, Marbut offers evidence in his letter to Motl that he sent 37 quarterly FEC reports (also publicly available from the FEC Website), not just the four reports Motl wanted, to COPP by email when asked for them by COPP.  Marbut also offers to send Motl a copy of the email in which COPP acknowledged receipt of this decade of FEC reports.
In the section of Marbut’s letter addressing this SNAFU by COPP, Marbut asks, “Does this flaw cause COPP to have failed in its due diligence to have properly investigated this matter before issuing its derogatory Decision?”
In his letter, Marbut asks several other relevant questions about Motl’s conduct, rationale, and conclusions in this matter.
Commissioner Motl has shown a history of feeding his side of a case to the media, while those subject to his enforcement action suffer bad publicity in legally advisable silence.  In order to correct this unfair advantage wielded by Motl, Marbut has chosen to go public with his Response to the original Complaint (previously hidden from public view by Motl) and with his related questions for Motl about the recent Decision.  Marbut says, “With fair, open, and equal public disclosure of the false facts used by Motl to justify his Decision in this case, and exposure of a biased process, let the public examine those facts and make up their own minds.”
Marbut concluded, “The power inherent in government offices must not be used in attempt to punish or silence political opposition.  The people will not allow that to become standard practice to be used by whatever clique is currently in power.”
 – 30 –
Information:  Gary Marbut, 549-1252 or gary(AT)marbut(DOT)com
Original Complaint:
Response to Complaint:
COPP Decision:
Letter of questions about Decision:
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Gary Marbut, MSSA, Responds to AG’s Comments About Gun Violence

Please note Mr. Marbut’s statement about the rapid increase in gun ownership, the rapid decrease in gun violence, EXCEPT in GUN FREE ZONES, where gun violence continues to escalate.

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Marbut Will Be Independent Candidate For Montana House Seat

Dear MSSA Friends,

Two years ago, I ponied up to be the Republican candidate for the Montana House of Representatives in House District 99 (where I live), even though I knew it would be a long shot because it was about a 70% Democrat district. The election results were about what you’d expect for an R running in a 70% D district.

In this current election cycle, the redistricting commission has redrawn the district, as all Montana districts have been redrawn. Where I live used to be in HD 99; the district is now HD 94. It has gone from 70% D to about 55% D. The incumbent elected last time, liberal lady lawyer Kimberly Dudik, filed to run in HD 94. A Republican nobody had heard of filed to run against her.

Then, the Republican either withdrew or was taken off the ballot, depending on whose story you hear. In any case, that left a free ride for Dudik – nobody else on the ballot in November.

Some people contacted me to seek my permission for them to collect signatures on petitions to place me on the November ballot as an Independent candidate. I agreed to allow that, but warned them that I would probably not have the time and energy (too busy; too many birthdays) to run as aggressive a campaign as I did last time.

The signatures were collected and verified by the Missoula County Elections Office and the Secretary of State. I’ve submitted the necessary paperwork and filing fee to the Secretary of State, and required initial forms to the Commissioner of Political Practices.

The Secretary of State’s office called me late this afternoon to inform me that all the “i”s were dotted and “t”s crossed and I WILL be on the ballot for HD 94 this November as an Independent candidate for HD 94. (My mother as said that I need to have my head examined. She may be right.)

Sooner or later, voters and the media will ask why I’m running as an Independent candidate. My answer will be that in my long political experience I’ve seen far too many examples of where the existing major political parties put the welfare of the party ahead of the welfare of the people. For example, I saw that when I ran as a Democrat in the early 1980s and the Democrat party informed me that if I was elected I’d be expected to vote in the Legislature how the Party told me to vote. We agreed to disagree and the next week all of my campaign signs were destroyed. I saw that when I was a delegate to the Montana Republican presidential nominating convention and the Republican insiders enforced a very unfair process to make sure candidate Ron Paul was shut out and did not get Montana delegates to the national nominating convention.

My chief interest is individual liberty, not the welfare or power of political parties.

I think an Independent candidate will play well in HD 94 in November. The Republican voters won’t vote for a Dem, so they’ll vote for me. By November, the unaligned voters, and even many traditional Democrats, should be sick of Obama and the Democrat Party. They’ll be glad to see an independent on the ballot. We’ll see. It should be interesting.

So, there you have it. I’ll get back to you when the dust settles from the Primary about fundraising for the campaign, and what you can do to help. (For any of you absolutely champing at the bit to donate [campaigns cost money], I’ll include some info below.)

Best wishes,

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

==================

I have opened a campaign account. If you’re eager to get in on this, you could send a check made payable to “Marbut for House”, and mailed to:

Gary Marbut
P.O. Box 16106
Missoula, Montana 59808

The max any individual may contribute is $170. A husband and wife may contribute $170 each, but it should be in two checks, just to keep it clean.

No checks drawn on the account of a corporation, please. Business checks are okay, as long as the business is not a corporation.

For any checks of $35 or more, I am obligated to report the Name, Address, Occupation and Employer of the donor to the Commissioner of Political Practices. If your name and address are on your check and your donation is $35 or more, please also write your occupation and employer in the Memo line or an included piece of paper.

Thanks!!

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Missoula Shooting Media Circus

You won’t be surprised to hear that there’s been a high demand by news/entertainment media for comment, spurred by the recent shooting incident in Missoula.

I have not been able to comment about that incident, but I have tried to make myself available to the media for comment concerning Montana gun laws and our Montana gun culture. I hope to inject some more rational thought into this media fest to avoid all the media misinformation that came out surrounding the Treyvon Martin/George Zimmerman incident in Florida (e.g., “stand your ground” was never involved there).

I’ve just finished an hour-long interview with CNN this afternoon. They say their segment should air Tuesday (5/13). Since I don’t a TV set, I’ll depend on you folks to tell me if CNN treated me fairly, and if I was lucid talking to the camera (I never know when I’m talking if I’m coming across well).

In addition, I have done a half-hour segment with an international radio network. I did an interview with and was mentioned in the New York Times. I was interviewed for several hours by the German magazine Stern, which has a circulation of nine million in Europe. I did a two hour interview with a newspaper chain headquartered in Frankfurt, Germany. I did a two-day interview with a German TV network from Berlin that reaches all of Germany and Austria and Switzerland. I was requested to write an OpEd for the Great Falls Tribune and I had a letter published in the Missoulian. I should be on Missoula’s TalkBack on KGVO radio on next Tuesday (5/20) for an hour talking about Montana gun laws. And, I’m probably forgetting some.

My general themes have been:

1) Montana and Montana people have a long tradition, culture and heritage of owning and using firearms for legitimate purposes. Our culture is suitable for Montana people. We don’t ask people in other places to change their culture to please us and we’d appreciate the same consideration from them.

2) Before any rush to judgement about the propriety of Montana gun laws, and concerns arising our of the recent Missoula incident, we need to let the justice system do its job. Until the justice system has completed its job, it is not possible to say responsibly that something is broken and needs to be fixed.

3) Finally, I’ve found it very difficult to get the media to correct the misunderstanding and assertion that MSSA and I created the “castle doctrine” in Montana with HB 228 in 2009.

Because of item #3, I’ve done a bunch of research into the castle doctrine concept. You will be interested in what I’ve learned. The earliest reported legal case I’ve found that was decided according to the castle doctrine was in 1330, AD. So, the castle doctrine concept is AT LEAST seven centuries old. The first mention of the concept I can find in Montana law was in the Revised Montana Statutes of 1879, during Montana’s territorial days – before statehood. So, the castle doctrine was not something MSSA and I created in 2009 with our HB 228, which we called our “Self Defense bill,” although we did tweak it just a bit.

If you want to know about that tweak, the 1879 language, still in the law in 2008 (“Defense of an occupied structure.” at 45-3-105, M.C.A.) said that a person could not avail themselves of the benefit of the castle doctrine unless the intruder entered in a “riotous or tumultuous manner.” There were two problems with that language:

First, if an assailant snuck quietly into your home and woke you in the night with a knife held quietly at your throat, you couldn’t utilize any castle doctrine in self defense – no entry in a “riotous or tumultuous manner.”

Second, the words “riotous” and “tumultuous” are not words of legal art. That is, they are not specifically defined anywhere in the law, so what they mean is in the eye of the beholder. They could mean a wide variety of things. Laws that a common, ordinary person cannot understand and rely on are simply bad laws. You and I need to be able to know what conduct is permissible, and what conduct is prohibited.

So, with HB 228 we struck these words from the law so you and other citizens could have a reasonable grasp of what the law requires and allows.

Of course, HB 228 was a large bill with lots of moving parts. People who know little about the bill and little about Montana gun laws have been spouting off that the laws need to be changed – maybe that HB 228 needs to be repealed. That they would make these broad statements generically without knowing what specifically they want to change demonstrates their ignorance of current law. Therefore, they’re just grandstanding or attempting political theatre, or as we say in the gun culture, they’re dancing joyously in the blood of the victim.

Enough of my near rant. Let me know how the CNN story looks.

Best wishes,

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

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MT AG Request for Action Goes Unanswered. Now What?

Montana Attorney General has let pass my deadline of Noon today (it’s now after 2PM) to at least acknowledge my request that he look into the details of the recent federal raid on the Bozeman brass recycling business. Pasted next below, for your information, is the strongly-worded followup message I sent to Fox on Tuesday, becoming more insistent that he conduct some sort of inquiry into the federal raid in Bozeman, and giving him until Noon today to respond. Of course, he doesn’t like being told what to do (as he may see this), even though he’s a public servant. Apparently, he thinks it’s just not important to stick up for Montana people.

Now, I need your help to change his mind about that. I ask you to do several things:

1) Email Fox and demand that he conduct an inquiry into the Bozeman raid, as requested. Feel free to use strong language, if you like, but don’t be rude, don’t call him names, and don’t use profanity. Send your emails to all of these email addresses: ofoxc@aol.com, timfox@mt.gov, tfox@mt.gov contactdoj@mt.gov, JonBennion@mt.gov, coswanson@mt.gov Heck, email every day until this logjam breaks.

2) Call for Fox at the Montana Department of Justice at 406-444-2026 – same message; same rules as above.

3) Redistribute this email to any and all interested Montanans.

4) Send this email to your local legislators and insist that they contact Fox with a demand for performance.

5) Write letters to the editor of local daily and weekly papers calling for Fox to investigate as requested.

6) Call in to radio talk shows with the same.

7) Engage in any other First Amendment activism you can think of to cause Fox to feel the heat and see the light.

Attorney General Fox is in a position to require federal enforcers to mind their manners in Montana. The questions are, does he care, and will he?

Thanks loads for your help.

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

====================

April 15, 2014

Tim Fox
Attorney General of Montana
Montana Department of Justice
Helena, Montana

Dear Attorney General Fox,

I have received no response from you to my request (pasted below, for your reference) that you investigate an armed federal raid on a Bozeman business a couple of weeks ago. You have not even acknowledged receipt of my request.

Your earned reputation is that you avoid controversy. I imagine you don’t like the idea of disapproval by federal officials for investigating their actions. You may think that, if you just wait a while, interest in this will die down and the whole business will blow over, leaving you in a comfort zone of doing nothing.

If you think that, you are mistaken.

If you don’t show any sign of action in this matter, possibly because you prefer to avoid controversy, you will leave me no alternative but to make it extremely controversial that you seem quite willing to sit on the sidelines and abandon Montanans, requiring them to fend for themselves in the face of armed federal aggression.

Did the federal enforcers break any laws while conducting their Bozeman raid? We won’t know until you look into it. We already know that the Gallatin County Sheriff’s Office and the Bozeman Police Department were actively involved in the raid, so we could hardly expect either of those entities to do any sort of honest investigation. They’d more likely make excuses or actively cover up any wrongdoing than conduct any sort of honest investigation, especially since the known facts point to their complicity in the operation. The U.S. Attorney for Montana has no interest. As with the GCSO and BPD, he has more motive to whitewash or actively cover up any wrongdoing than to conduct an honest investigation. So, that leaves you.

In case you have been off on vacation somewhere and away from the news, let me inform you that lots of people are seething with resentment at the high-handed and aggressive tactics of federal employees, witness what has been happening recently in Nevada. In that situation, federal authorities sent scores of federal employees armed with machine guns and sniper rifles, and possibly some military personnel, to take a rancher’s cattle. They threatened to kill people who protested. They attempted to confine protesters to a small “free speech zone” miles from their operation. We simply will not tolerate similar treatment of people in Montana. We elected you to stick up for us.

So, you can either cowboy up and do your job by looking out for the people of Montana, or force me to make your lack of action more distressful for you than any discomfort associated with a quick, assertive and honest review of the Bozeman raid.

I now specifically suggest that you appoint an ad hoc commission of at least two elected legislators and one experienced investigator, and others if you like, and give them ten (10) calendar days to give you a report that addresses the issues raised in my request to you, and any other issues that you may think of or that may arise in the course of the investigation. In case you are short on ideas about suitable legislators, I offer in suggestion Senator Terry Murphy, Senator Art Wittich, Rep. Krayton Kerns, and Rep. Austin Knudsen. If it is possible for you to give this group subpoena powers or other empowering support, I suggest you do so.

You may think the tone of this message intemperate. I guarantee you it is much more restrained than my first draft. You may operate in such genteel and protected circles that you simply don’t understand that people are at the end of their rope with armed federal aggression. Public tension is real and visceral. People are locked and loaded, if you know what that means. The subject of armed federal aggression is no longer a law school or editorial debate. Your ongoing and energetic defense of Montana people, beginning with decisive action about the Bozeman raid, might just avoid real bloodshed over the next such incident in Montana. I believe bloodshed is very much worth avoiding, worth much more than the price of your disinterest or any discomfort you might experience from seeking answers to questions about federal and local officials’ conduct.

I expect you to acknowledge receipt of my request for your involvement, I expect you to say for certain if you will or won’t act, I expect you to offer at least some general explanation of your intended involvement if you will pursue this, and I expect that response electronically by no later than Noon on this Thursday, April 17th.

“The test for whether one is living in a police state is that those who are charged with enforcing the law are allowed to break the laws with impunity.” — Jon Rolan

Very sincerely yours,

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

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Mental Health and the Right to Keep and Bear Arms

Next Thursday the Montana Legislature’s Law and Justice Interim Committee will hold a hearing to consider whether or not Montana should do more to capture mental health records and feed those into federal electronic systems, such as the NICS created by the Brady Law. Here is my written testimony to the L&J Committee:

Montana Legislature
Law and Justice Interim Committee
National Instant Criminal Background Check System (NICS) and Mental Health
February 13, 2014

Testimony for Committee, by
Gary Marbut, President
Montana Shooting Sports Association

Will improved mental health evaluations, and data collection and reporting of mental health information decrease violence, especially gun-related violence?

I. Qualifications to provide information.

Mr. Marbut is accepted in state and federal courts in civil and criminal cases concerning firearms safety, use of force, legitimate self defense, and related topics. Mr. Marbut is an active self defense instructor and has graduated over 3,800 students from curriculae concerning Montana laws, and the tactics and methods of defense. Mr. Marbut is a member of the International Association of Law Enforcement Firearms Instructors, and a follower of and sometimes contributor to the Force Science Research Center.

II. Precursor, background issues.

Before the question posed above can be effectively answered, some foundation issues must be addressed.

1. Are people with mental health issues commonly prone to future violence? No. A 2009 study found that individuals with mental health disorders no more likely to commit acts of violence than the rest of the population; rather, future violence was indicated by other factors, such as substance abuse and a prior history of such acts. One explanation is that some individuals with severe disorders are too disorganized or afraid to commit crimes. For example, individuals with severe schizophrenia may have delusions – for instance, a belief that they and others around them face a danger of attack or threat. This leads some persons suffering from this form of delusion to seclude themselves from the outside world and to express extreme caution toward others…
http://leb.fbi.gov/2014/february/responding-to-persons-with-mental-illness-can-screening-checklists-aid-law-enforcement

2. Is gun-related mass violence by persons with mental health issues increasing and is it a pressing national problem? No and no. Despite obsessive media reporting when such incidents occur, the number of those incidents and the number of victims claimed in those incidents remain static, this notwithstanding an increasing population size and increasing levels of gun ownership.
http://hereandnow.wbur.org/2013/09/23/mass-murder-decline

3. Is there an increased national murder rate that can be attributed to mental health failures? No. Actually, murder rates in the US are dramatically down, again despite increasing rates of firearms ownership, increasing population, and stressful economic times. Because overall murder rates, including murder rates with firearms, are in a definite downward trend, there is no rationale’ to claim increases because of people with mental health problems, or inadequate mental health reporting.
http://www.breitbart.com/Big-Government/2013/12/03/Congressional-Research-Service-More-Guns-Less-Crime

4. Is the state of the art in psychology capable of correctly identifying people with mental health problems who are prone to violence. No. This answer only repeats what many professionals and experts in the field of psychology insist, that the art of psychology simply does not possess the tools at this stage in the evolution of the art to accurately predict violence. Much better predictors of violence include drug use, and history of violence.
http://www.psychlawjournal.com/2012/08/risk-assessment-how-psychologists.html
http://articles.latimes.com/2012/dec/17/news/la-heb-predicting-violent-behavior-20121217
“Skilled and practiced mental health professionals have gotten a lot better at predicting short- term dangerousness,” said Dr. Steven E. Pitt, a forensic psychiatrist who consults with the Phoenix Police Department and directed the Columbine Psychiatric Autopsy Project after the 1999 school shootings. “But who’s going to commit violence in some unspecified future? You might as well consult a Ouija board.”

5. Is there any connection at all between mass shootings and mental health? Yes. Besides that we’d consider crazy any person who would take the lives of innocents, there is another connection between mass shootings and mental health. That connection is psychotropic drugs. All of the mass shootings in recent memory have been done by people who either were actively taking prescribed psychotropic drugs, or who were supposed to be taking psychotropic drugs but quit. In order to obtain these psychotropic drugs, these people perpetrating mass shootings were under the care of a mental health practitioner licensed to prescribe the drugs. See:
http://www.ladailypost.com/content/brief-history-psychotropic-drugs-prescribed-mass-murderers
http://www.naturalnews.com/025826_Antidepressants_school_shootings.html
http://ssristories.org/category/violence/school-or-other-mass-shooting/

6. Base Rate Fallacy. A well defined and important but little known phenomenon is base rate fallacy. It has to do as much with statistics than with psychology, but it is essential for psychology. There is an excellent article on Base Rate Fallacy in Wikipedia at:
http://en.wikipedia.org/wiki/Base_rate_fallacy
Anyone contemplating the issue of mental health and persistent mental health records would be wise to learn about and understand the concept of base rate fallacy.

The essence is this: Any widespread screening for a condition (e.g., mentally unstable person prone to violence) among the general population is guaranteed to turn up many more false positives than true positives, just because of an unavoidable error rate, which would be especially pronounced in the fuzzy field of psychology. The false positives would outnumber the true positives by one or more orders of magnitude. Thus, people not prone to violence would unavoidably be stigmatized and likely lose civil rights because of an error rate that cannot be eliminated.

7. Persistent records/improper records non-correction. There are not good, affordable or comprehensive mechanisms in place or available to get persistent records corrected if a person is incorrectly identified as prone to violence, or if the person gets treatment and is cured of any tendency towards violence. This is especially true of the National Instant Check System (NICS). People who are marked on NICS as ineligible for firearms transfer find it difficult or impossible to get records corrected.

Summery of a Texas legal case is in order here (US v. Bean, 537 U.S. 77(2002) ). After attending a gun show in Texas, Thomas Bean drove to Mexico. When Mexican officials stopped his vehicle at the border, they found ammunition, and Bean was subsequently convicted in a Mexican court of importing ammunition. Because of his felony conviction, 18 USC section 922(g)(1) prohibited Bean from possessing, distributing, or receiving firearms or ammunition. Bean applied to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief from his firearms disabilities, but the ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as Bean’s. Bean then filed suit, asking the District Court to conduct its own inquiry into his fitness to possess a gun and grant relief from his inability to possess, distribute, or receive firearms or ammunition.

In a unanimous opinion delivered by Justice Clarence Thomas, the Court held that the absence of an actual denial of Bean’s petition by ATF precludes judicial review. Because Bean’s application for relief from the firearms disabilities was not considered due to appropriation provisions, Justice Thomas reasoned that the court could not grant relief since the statute only permitted judicial review of an affirmative denial of an application.
Thus, Bean could not get his rights restored, notwithstanding that what he was convicted of in Mexico is not a crime in the US, simply because Congress had not funded the BATF’s process to correct records swept in from other countries, and restore Bean’s rights. Not only was Bean, a competitive trapshooter, unable to purchase new firearms, he was ineligible for life to possess any firearms he had previously purchased legally.
http://www.oyez.org/cases/2000-2009/2002/2002_01_704

8. Barking up the wrong tree; “Gun free zones.” Besides psychotropic drugs, the other common denominator for mass shootings in schools, theaters, and other places, is that they ALL happen in purported “gun free zones.” These alleged “gun free zones,” of course, are NEVER “gun free,” but only gun free for the victims. People bent on mayhem never respect “gun free zones.” In fact. perpetrators of mass violence seek out disarmed victim zones, for obvious reasons. Only those who respect the law and have no murderous intent comply with such silly zone rules and are thereby rendered defenseless. Thus, “alleged “gun free zones” are demonstrated to be very dangerous places, places where deranged perpetrators are assured of a resistance free killing field. Collection and sharing of mental health records will do nothing to address this glaring problem.

9. Will a system-reported mental health deficiency prevent deranged people from acquiring guns? No. Almost universally, those who have committed mass shootings have acquired the guns they used through means that would not be interdicted by a NICS check. A mental health disqualification for firearm purchase will only affect those who obtain guns through legal channels. That is, mental health evaluation and disqualification would have zero effect on the class of people intended for interdiction, perpetrators of mass shootings.

10. Will the prospective loss of civil rights dissuade possibly needy people from seeing mental health professionals? Yes. If there are people who need psychological intervention, the expected loss of their civil rights via data sharing will certainly persuade many of them to avoid any contact with the mental health community. See:
http://gunowners.org/congress1132014.htm

III. Conclusion

People with mental health issues have no greater rate of violence than the public at large. Any mental health search for violent people would assuredly turn up far more false positives than true positives (base rate fallacy). These people tagged because of false positives would likely be stripped of their civil rights for life, with no practical way to get their records cleared or revised following treatment. Within the arena of psychology, experts disagree about whether the art has evolved sufficiently to provide tools allowing practitioners to correctly predict an individual’s future violence. Even if the violent people could be identified and documented through mental health screenings, and disqualified from firearms purchase, that would not interdict the ability of such individuals to obtain guns and commit mayhem. Integrating mental health treatment with civil rights denial systems will persuade many people who may need treatment to avoid treatment. Nor would any such system address the dominant twin problems with mass shootings of psychotropic drugs and the low-hanging fruit for violent people of “gun free zones.”

Finally, there will be those who will respond with some version of, “… but if it saves just one life …” Criminologist professor Gary Kleck estimates that 2.5 million people in the US defend themselves every year with a firearm. In most cases the mere display of a firearm is sufficient to make assailants go away and save the defender, since Kleck says shots are fired in only 9% of these cases. Causing a significant percentage of these 2.5 million people to be disarmed (revisit base rate fallacy) would certainly end up costing far more lives than might be saved through the fuzzy and problematic process of mental health screening and records sharing.

Will improved mental health evaluations, and data collection and reporting of mental health information decrease violence, especially gun-related violence? No. But it can destroy the civil rights of too many innocent people in a fruitless quest to “do something.” That would be especially unfortunate and unwise if the “something” were so easily predictable to be contraindicated.

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

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MSSA Head Pens Open Letter to SCOTUS Prior to Firearms Freedom Act Case

*Editor’s Note* – Below is a copy of the open letter sent by Gary Marbut, President of the Montana Shooting Sports Association, to the members of the United States Supreme Court, addressing issues dealing with the Montana Firearms Freedom Act (MFFA). MFFA states that any gun or gun part manufactured in Montana and remains in Montana, cannot be regulated by the United States Government under the Commerce Clause. The case has made it’s way, as predicted by Marbut, to the United States Supreme Court and arguments in that case will be heard soon. Several states have clone bills pending the outcome of MFFA.

Gary Marbut
P.O. Box 16106
Missoula, Montana 59808
President, Montana Shooting Sports Association
Author, Gun Laws of Montana
Plaintiff, MSSA v. Holder

November 1, 2013

Chief Justice John G. Roberts, Jr.
Associate Justices
Supreme Court of the United States
Washington, D.C.

Dear Chief Justice Roberts and Associate Justices,

Greetings from Montana.

This missive is about MSSA v. Holder, a lawsuit coming to you to validate the principles of the Montana Firearms Freedom Act. If I were an attorney, this would be written as a legal brief, and submitted at the proper time with proper process. As I am not an attorney, this is somewhat each a formal letter, a petition, and an essay. Please hear me out.

I. History

As MSSA v. Holder is now being appealed to SCOTUS, let me acquaint you with its genesis and offer you a sketch of its history.

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). The MFFA was introduced into the Montana Legislature in 2005, again in 2007, and again in 2009, when it was passed by the Legislature and signed into law by the Governor of Montana.

The MFFA declares that any firearms made and retained in Montana are simply not subject to any federal restrictions or regulations under the power given to Congress in the ICC to “regulate commerce … among the several states …” The MFFA is codified at 30-20-101. et. seq., and may be reviewed in full here.
Following passage of the MFFA, I corresponded with the Bureau of Alcohol, Tobacco, Firearms and Explosives. I informed the BATFE that I wished to manufacture and sell only within Montana a youth-model, single-shot, bolt-action, .22-caliber rifle called the “Montana Buckaroo” and stamped “Made in Montana” on a central metallic part. I asked if that could be done without federal licensure under the terms of the MFFA. The BATFE responded in the negative. Its letter stated I could be prosecuted criminally and become subject to asset forfeiture if I were to do as I had proposed. The response offered no opportunity for review of that position. (Note: There is another standing claim in the record if standing should concern you.)

The MFFA became effective on October 1, 2009. That is also the date upon which plaintiffs Montana Shooting Sports Association (MSSA), the Second Amendment Foundation and I filed MSSA v. Holder in the federal District Court in Missoula, Montana. MSSA v. Holder seeks judicial restraint of executive branch enforcement of federal laws in conflict with the MFFA. It also seeks adjudication to roll back federal ICC power generally. I am the sole individual plaintiff in the case.

Upon urging by USDoJ, the District Court dismissed the lawsuit, based both on standing and on merit. We appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit reversed the District on standing, but upheld the District on merit. That was expected because we are challenging ICC precedent and we know that only SCOTUS may reverse or revise its own precedent. MSSA v. Holder in now in the process of appeal to SCOTUS.

Since the passage of the MFFA in Montana, eight other states have enacted clones of the MFFA, and 23 other states now have or have had introduced MFFA-clone bills. See it here.

MSSA has been accompanied in this endeavor by numerous amici, beginning at the District Court. These include the Attorney General of Utah, also representing the AGs of eight other states, an amicus group of Montana legislators who supported the MFFA, an amicus group of legislators from other states who have sponsored or supported MFFA clones in other states, several public policy entity amici, and others. The State of Montana has intervened in support of the MFFA.

II. Why should SCOTUS accept MSSA v. Holder?

There are several good reasons why SCOTUS should grant plaintiffs certiorari in MSSA v. Holder, all revolving around the theme that SCOTUS needs to step to the plate to address pressing national issues presented in the case.

A. MSSA v. Holder presents questions of core constitutional issues, especially about the critical relationship between the states and people, and the federal government, questions only SCOTUS may resolve.

MSSA v. Holder challenges ICC precedent going back to Wickard v. Filburn. As you Chief Justice Roberts said in your concurrence in Citizens United, there comes a time when precedent becomes so cobbled together with baling wire and duct tape that it just no longer makes sense, so stare decisis must yield. The Ninth Circuit acknowledged that only SCOTUS may overcome stare decisis and revise ICC precedent. It is difficult to imagine a more cobbled together (“jury-rigged” in Roberts’ words) precedent than the evolution and current status of ICC law.

B. 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. There is plenty of evidence for this assertion. Nine states have enacted Firearms Freedom Acts, and 23 others have introduced FFA clones and may yet enact them. 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. States are passing laws prohibiting enforcement of indefinite detention under the NDAA, there are police agencies that have publicly declared refusal to enforce provisions of the Patriot Act(s), there are the states that have enacted various marijuana tolerance laws in defiance of federal law, and much more. These rejections of overweening federal power are happening not only at the state level, but at the county, city level, and with individual citizens.

Frankly, the working people of America are fed up with an overbearing federal government bent on regulating everyone and everything.

President John F. Kennedy informed us, “Those who make peaceful revolution impossible make violent revolution inevitable.” MSSA v. Holder 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.)

C. In its line of ICC cases, from Wickard to present, SCOTUS has lost institutional credibility by abdicating its crucial role as a check on the executive and legislative branches. MSSA v. Holder will provide the Court opportunity to regain some of that lost credibility (as it may have begun to do in its recent and surprisingly unanimous Bond v. US decision.

III. Merits of MSSA v. Holder

If SCOTUS should accept MSSA v. Holder, there are very good reasons why SCOTUS can and should provide some level of remedy to plaintiffs. We will not trouble the Court with ICC arguments that have already failed in other ICC cases. We offer the Court broad new, and we believe persuasive, reasons why the Court should take a fresh look at ICC precedent.

A. In 1942, the Wickard Court impermissibly and improperly, yet effectively amended the Constitution by assigning new definitions to three critical words: Regulate, commerce, and among. The Constitution gives the Court no role in amending the Constitution, which power is reserved primarily to the states, the creators and enablers of the federal government (see Abel Upshur’s A Brief Enquiry.)

One of the greatest advances in federal power happened with the Wickard decision. President Franklin D. Roosevelt was frustrated that SCOTUS had invalidated many of the New Deal programs FDR had pushed through a friendly Congress. FDR threatened to “pack” SCOTUS – to appoint six more and friendly-to-FDR justices to swing the SCOTUS balance to approve all of the New Deal programs. He could have accomplished that with his captive Congress.

In the face of that court-packing threat from FDR, SCOTUS caved in the Wickard decision, a decision about the scope of federal power given under the ICC. In order to make the Wickard decision outcome satisfy FDR, it became necessary for SCOTUS to effectively amend the Constitution. To accomplish that, SCOTUS had to revise the definitions of three critical words used in the Constitution’s ICC, “regulate,” “commerce,” and “among.” SCOTUS had to make up entirely new definitions for these critical three words to give them meaning these words had never before been known to have in the English language.

In order to revise the meaning of the Constitution sufficiently to give FDR what he wanted, SCOTUS redefined “regulate.” Regulate had always before meant “to make regular.” SCOTUS redefined “regulate” to include “prohibit.”

SCOTUS had to redefine “commerce.” Commerce had always meant “gross trade,” such as shiploads of goods moving from port to port. To sufficiently revise the meaning of the Constitution to satisfy FDR, SCOTUS redefined “commerce” to mean essentially “any economic activity, no matter how minor.”

Finally, SCOTUS had to change the definition of “among” (as in “… among the several states …”). The word “among” is a bit slippery to define, although we all grasp what it means. 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.”

By redefining “regulate” to mean “prohibit,” by redefining “commerce” to mean “any economic activity, no matter how minor,” and by redefining “among” to mean “within,” the Wickard Court dramatically and improperly changed the meaning and effect of the Constitution. The Court effectively amended the Constitution, despite that it had no authority to do so.

B. It is an ancient principle of law that if a conflict exists between or among provisions within a co-equal body of law, the most recently enacted must be given preference as the most recent expression of the enacting authority. (Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary.)

The Second Amendment (to whatever extent it may apply), the Ninth Amendment and the Tenth Amendment were all enacted subsequent to the Supremacy Clause, the Necessary and Proper Clause, and the ICC. Thus, the Second, Ninth, and Tenth actually amended and affected the underlying Constitution. It is a sound principle of American jurisprudence that there are no meaningless words in the Constitution.

Given conflict between the Second/Ninth/Tenth and the Supremacy/N&P/Commerce, the Second/Ninth/Tenth must prevail as the most recent expressions of the enacting authority. The Second, Ninth and Tenth must be afforded an equal seat at the constitutional banquet table with the First, Fourth, Fifth, and others. They may not be driven off to and sequestered in the servants’ quarters as undesirable and unrecognized stepchildren while the constitutional banquet is held. Or, as Justice Scalia said in D.C. v. Heller, “… what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” Ditto the Ninth and Tenth Amendments. They must be afforded real vitality for any honest reading of the Constitution.

It is the Tenth Amendment that reserves the right of Montana to enact and preemptively implement the MFFA. It is the Ninth Amendment which reserves to me the individual right to manufacture and sell a firearm, without federal licensure or regulation, as long as that firearm does not leave Montana (and perhaps even if it does leave Montana, although that permutation is not at issue in MSSA v. Holder).

C. Because of the effect of the Second, Ninth and Tenth Amendments on ICC assertion by Congress, a rational basis will no longer suffice as justification for governmental intrusion into spheres of operation protected by the Second, Ninth and Tenth Amendments.

A perfectly lucid argument can be made, and is made here, that before the federal government may interfere with Montana’s implementation of the MFFA, or interfere with my intent to make and sell the Montana Buckaroo to Montana customers, the federal government must show clearly that it both has a compelling government interest, and that it is using the least restrictive means to accomplish its purpose.

The history of enactments of the federal laws at issue here that are claimed to prevent Montana from implementing the MFFA, and to prevent me from making and selling the Montana Buckaroo, demonstrates that these laws were enacted ostensibly to help Montana fight local crime. That Montana enacted the MFFA shows that Montana does not want or need any such mother-knows-best assistance from the federal government.
Further, Congress did not attempt any less restrictive or more focused measures before enacting those laws that the U.S. now asserts prohibit Montana’s implementation of the MFFA, and also prohibit my unregulated production and sale of the Montana Buckaroo.

D. 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. SCOTUS 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.

E. When Montana entered into statehood in 1889, that event was memorialized via a contract, called the Compact with the United States (Compact), now found at Article I of the Montana Constitution. Note that the terms “contract” and “compact” are effectively synonymous, except that such instruments are more likely called compacts when entered into between states or nations. Compacts and contracts submit to the same historic legal principles, such as competent parties, subject matter, legal considerations, mutuality of agreement, and mutuality of obligation.

Montana’s Compact incorporated two other significant documents: Ordinance 1 of the Montana Legislature, and the Enabling Act of Congress. Montana’s Compact declares on its face that it may not be amended unilaterally, as in principle with all contracts. In Ordinance 1, Montana agreed to accept the United States Constitution as it was understood in 1889. The interpretation of the present terms and conditions of that contract must be viewed in light of how those terms and conditions were accepted and understood in 1889.

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.

Said differently, there is nothing in the Compact, Ordinance 1, or the Enabling Act of Congress mentioning manufacture of firearms whatsoever. Nothing. In 1889, the ICC was not understood to give Congress the power to prohibit any economic activity within states. That was the view of the accepted terms and conditions surrounding the contract in 1889. Today, that contract must be held to the accepted usages and understandings in effect at the time the contract was entered into. That is standard contract law. For the U.S. to attempt to prevent implementation of the MFFA, and to prevent me from making and selling the Montana Buckaroo, amounts to breach of contract by attempted but prohibited unilateral amendment of Montana’s Compact.

Of course, the first remedy for breach of contract is a demand for performance. MSSA v. Holder is that demand for performance under Montana’s Compact. If contract enforcement cannot be obtained, the ultimate remedy is rescission of contract. We prefer not to rattle that particular saber, but that ultimate remedy remains an inescapable final option that cannot be blinked away.

IV. Possible SCOTUS options

SCOTUS could decline to accept MSSA v. Holder, or there is a range of remedies that SCOTUS could apply after considering merit arguments.

A. SCOTUS could certainly decline to accept MSSA v. Holder. I submit that this would be a serious strategic error. Truly, America is at an historic crossroads. For an excellent recitation of many of the unacceptable and improper usurpations of power by the federal government, see Mark Levin’s new book, The Liberty Amendments. Suffice it to say that where the primary role of government is supposed to be to protect the liberties of the people, our federal government is charging madly down the road to transform the U.S. into some form of police state where everything that is not permitted by government is forbidden. That is simply unacceptable.

The time will come very soon when the Kennedy equation is likely to tip decisively in one direction or the
other. I dearly hope that SCOTUS will avail itself of MSSA v. Holder to shepherd in the much preferred peaceful revolution in President Kennedy’s equation. The alternative is too dire to contemplate, but remains clearly potential.

B. SCOTUS could reverse Wickard and all of its progeny, based on demonstration that the Wickard Court improperly amended the Constitution. That would certainly take courage. But, such a decision would repair a lot of wrong that has happened in our Nation, and would reaffirm the proper principles by which our federal government is supposed to be governed.

The aftershocks of such a decision might even undo some federal policies that many or most people think are good things, even if they are deemed as properly beyond the purview of Congress. From the perspective of principle, such a decision would still be the right thing to do. Of those federal policies that are popular and that might be undone by this solution, probably all could and many would be implemented separately and properly by affected states. They would not be lost.

C. SCOTUS could admit that the Ninth and Tenth Amendments are equal in vitality to the other amendments, that they effect and modify the underlying Constitution, and that they prevail when in conflict with the Supremacy Clause, the Necessary and Proper Clause, and the ICC as the most recent expression of the enacting authority, especially as applied to the MFFA.

D. Because of the effect of the Second, Ninth and Tenth Amendments, SCOTUS could invoke prior restraint doctrine and require that invasions of those protected spheres may only be justified by strict scrutiny, or some clearly-articulated form of intermediate scrutiny (if that can be done).

E. SCOTUS could decide that Wickard must be narrowed to its fact set, that it is limited to a scheme to support wheat prices during time of national economic emergency only, and that the subsequent Wickard doctrine simply doesn’t apply to the MFFA because the MFFA is outside of the Wickard fact set and rationale.

F. SCOTUS could hold that the asserted federal trump of the MFFA violates Montana’s contract for statehood, and SCOTUS could grant Montana’s demand for contract performance.

G. Of course, SCOTUS could accept MSSA v. Holder, circle the wagons, reaffirm all ICC precedent from Wickard through Raich, and uphold the Ninth Circuit’s MSSA v. Holder decision. However, I submit that such a solution would play as badly against the current background of national distress and potential turmoil as option A. above.

V. Conclusion

SCOTUS will soon receive detailed legal briefing from MSSA and amici about all of the issues raised here. Just as the colonies pleaded with King George in various petitions to grant relief from intolerably burdensome governance, I plead with you to both accept MSSA v. Holder and to use it as a vehicle to grant principled and effective and desperately needed relief to plaintiffs, and to a very troubled Nation.
Thank you for your consideration, and for your concern for the people of these United States.

Very sincerely yours,
Gary Marbut
Missoula, Montana
gary@marbut.com

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Gary Marbut Books

The Fourth Printing of my book Gun Laws of Montana, updated to 2013, is now available and shipping. To order, see the instructions at:
http://www.mtpublish.com/mp/GunLawsofMontana.html

For stores, trainers and others, there is a 40% discount for orders of 10 or more books.

Dear MSSA Friend,

I just published another book, an E-book on Amazon, Hunting Elk by Handgun, just in time for hunting season. Now I need customers and (hopefully good) reviews. The full title is:
Hunting Elk by Handgun, a Primer for Beginners, a Refresher for Others.

http://www.amazon.com/dp/B00F3MXVLU

For any hunter who ever thought about hunting big game with a handgun, especially for Rocky Mountain elk, this book is packed with information that will give readers the knowledge and confidence to take the plunge. Covering all essential aspects of gear and technique, from scouting to game retrieval, Hunting Elk by Handgun opens the door to a challenging method of hunting. Written by a veteran handgun hunter, this book details field-proven practices sufficient to inspire any prospective handgun hunter or refresh and improve the ability of any existing handgun hunter.

This E-book is formatted for Amazon’s Kindle, although Amazon has free apps for computers, tablets and smartphones. It can also be read with free Calibre software.

Please send this email on to your friends.

Thanks!

Gary Marbut, President
Montana Shooting Sports Association

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Firearm safety/self defense class – October 5th – Missoula

Gun Safety for Personal Protection and
Concealed Weapon Permits Course
Saturday, October 5th, 2013

MISSOULA – A course entitled “Gun Safety for Personal Protection and Concealed Weapon Permits” will be hosted in Missoula by the Montana Shooting Sports Association on Saturday, October 5th, instructed by Gary Marbut.

This one-day course will focus on safe handling, storage and use of handguns suitable for personal protection, selecting a personal firearm, issues of personal protection, allowable use of lethal force, concealed weapon permits, kids and gun safety, and shooting skills, and will include both classroom and shooting range sessions.

Graduates will receive a credential qualifying them to apply for a Montana concealed weapon permit. The class will begin at 9:00 AM, and finish about 4:00 PM.

Class size is limited to the first 20 registrants. Pre-registration is required. Tuition is $100 per student. Students should be 16 years or older (exceptions possible upon request – call).

For further information or to register, reply to this email [mssa@mtssa.org] or call 549-1252.

To register by email, reply to this email and provide:

Name
U.S. Mail or residence address, including City, State, and Zip
Contact phone number

NOTE: These classes fill quickly, so reply soon to this email if you want in on this class. If you can’t or don’t make it into this class, you will be notified of subsequent classes by subsequent emails. I’ll conduct however many classes it takes to clear my any backlog. Watch your email for further announcements.

Expect an email confirmation of your class registration. If you don’t get an email confirmation, call me.

Further class information and instructions will be supplied by return email once you register.

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Gary Marbut: Ammo Shortage a Supply and Demand Issue

Folks,

Several of you have asked me what the cause of the ammunition shortage is.

The ammo shortage is nation-wide, and pretty much for all calibers. The shortage also includes ammunition components (brass, powder, primers and bullets) and all reloading equipment and supplies.

A part of the problem is the heavy federal government purchases, stressing an already-stressed marketplace.

However, the larger problem is the difference in elasticity between supply and demand.

The supply side is relatively inelastic. Manufacturers cannot increase production more than 30-40% before they begin exhausting their component suppliers. The component suppliers can’t expand more than 30-40% before they max out their material suppliers, all the way to the ends of the many supply chains. This is a usual rule for any type of manufacturing, and applies now in spades to ammunition. Manufacturers are running hard trying to satisfy demand. Hey, they’re in business and want to sell.

However, the demand side is VERY elastic, and driven by the psychological response of Americans to economic and political uncertainties. One supplier says he doesn’t have a shortage of ammunition, but a serious surplus of customers. As long as people have discretionary funds available and are stressed by political and economic uncertainty, or even by perceived political and economic uncertainty, demand for ammo will outstrip supply.

The only thing that would turn this around in the near future is if conditions change to remove or moderate the perception of economic and political uncertainty in the U.S. Frankly, my crystal ball doesn’t see that happening any time soon, unfortunately. If authorities would imprison a slug of high mucky-mucks in D.C., things might cool down, but I’m not holding my breath waiting for that.

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

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