August 18, 2019

SCOTUS Denies MSSA v. Holder Appeal

Dear MSSA Friends,

If you’ve been attending to the commercial Montana news media, you will have seen that the US Supreme Court has officially denied MSSA’s appeal of MSSA v. Holder from the Ninth Circuit.

However, it’s not over yet. The State of Montana also and separately asked for the SC to take the case. That is, Montana filed its own petition for certiorari. The SC has not acted on that petition yet – probably won’t until early February.

That news is not very encouraging since the SC has already declined to hear the case once. But, a request from a state has a better chance than a request from private parties. So, we’ll see. But I’m not holding my breath.

I’ll get out more info when we know more.

Best wishes,

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

Share

Montana AG submits cert petition in MSSA v. Holder

Dear MSSA Friends,

Tim Fox, Montana’s Attorney General, has submitted a separate petition to the US Supreme Court for the Court to accept our lawsuit to validate the principles of the Montana Firearms Freedom Act, MSSA v. Holder.

Attorneys tell me that this separate cert petition by the State of Montana will significantly improve the chances that the Supreme Court will accept and rule on MSSA v. Holder.

I am disappointed in the content of Montana’s separate cert petition, however. Rather than keeping with our broad theme of liberty, and resurrection of the Ninth and Tenth Amendments, Montana’s petition seeks a remand to the Ninth Circuit for reconsideration of the “substantial effects” doctrine associated with historic Interstate Commerce Clause jurisprudence. Unfortunately, discussion of “substantial effects” is the lawyers’ version of the classic theological debate about how many angels can dance on the head of a pin. Plus, previous challenges to federal Interstate Commerce Clause authority that relied on attacks on the “substantial effects” doctrine have failed.

So, thumbs up to AG Fox’s effort for Montana to submit its own cert petition. However, diminished kudos for allowing that effort to distract from the broad principles of liberty that have been asserted all along by MSSA and our supporters, and for seeking to devolve the case into lawyers’ arguments about legal trivia (even though Fox’s petition did a great job of arguing the legal trivia).

If you’re interested in reading them, the cert petitions from MSSA and Montana, and the supporting briefs by our friends, are all posted at:
http://firearmsfreedomact.com/montana-lawsuit-updates/

The Supreme Court should now decide soon, probably within 45 days, if it will accept and consider MSSA v. Holder.

Many of you will remember and appreciate that getting this case before the US Supreme Court is the culmination of a decade of effort. I originally wrote the Montana Firearms Freedom Act in 2004. We had it before the Montana Legislature in 2005 and 2007, and finally got it passed in 2009. We filed our federal lawsuit to validate the principles of the MFFA on the day the MFFA became effective in Montana, October 1, 2009.

The purpose of the MFFA and the lawsuit is to roll back federal power asserted under the Constitution’s Interstate Commerce Clause, which allows Congress to “regulate commerce … among the several states.” For this effort to trim back federal power, firearms are the vehicle for the exercise, but not the object of the exercise. The MFFA declares that the feds simply have no authority to regulate any firearms made and retained within Montana.

Eight other states have enacted clones of the original MFFA, and 23 other states have introduced MFFA-clone bills.

Many thanks to Missoula attorney Quentin Rhoades who has been our stalwart champion in this lawsuit since the beginning. Thanks also to MSSA’s co-plaintiff in the case, the Second Amendment Foundation, and to the many amici (friends of the court) who have supported us, which include the Weapons Collectors Society of Montana, the Center for Constitutional Jurisprudence, the AG of Utah (also representing 12 other AGs), and others.

Best wishes,

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

Share

Constitutional Scholar Comments on Supreme Court’s Newest ObamaCare Case

Washington, DC – With the U.S. Supreme Court set to address whether businesses can obtain a conscience exemption from ObamaCare’s contraception mandate, a constitutional scholar with the Project 21 black leadership network is “pleased” the Court is addressing a “fundamental principle of religious liberty” that the Obama Administration has turned into “a political wedge issue.”

In taking up the case, the justices are expected to decide on an issue that has divided the lower courts in the face of dozens of legal challenges from for-profit companies seeking ObamaCare exemptions based on constitutional protections of religious freedom. These lawsuits ask for the businesses to be spared from having to cover some or all forms of contraception, including abortifacients that effectively terminate unborn babies.

“I am pleased to see that the U.S. Supreme Court has agreed to hear this case,” said Project 21 Co-Chairman Horace Cooper, a former professor of constitutional law and former leadership staff member with the U.S. House of Representatives. “The Obama Administration clearly over-reached in this case. Being so fixated on maintaining a political wedge issue to frighten women voters in America, they were willing to trample on religious freedom in the process.”

This latest legal challenge to the President’s signature policy initiative comes from the consolidation of two of 40 similar cases.

One case involves Hobby Lobby Stores, Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees. The owner of Hobby Lobby says he runs his business on Biblical principle and is opposed to the contraception mandate found in ObamaCare. Hobby Lobby won in lower courts. In the other case, the Mennonite-owned Conestoga Wood Specialties Corporation lost on a similar religious challenge.

The cases will likely be argued in March of 2014, with a decision rendered by the end of June. Arguments will undoubtedly touch on the Religious Freedom Restoration Act and the previous Court ruling in the case of Citizens United v. Federal Election Commission.

Project 21’s Cooper added: “This case need never have gone forward if the White House would have simply accepted the counsel of people of faith both within and without the Obama Administration that its contraception mandate went too far. Just as the President refused to listen to those urging a go-slow approach on the ObamaCare web site and the overall roll-out, the Obama Administration pushed forward with disastrous and disruptive results for many Americans. Apparently, only the U.S. Supreme Court can force this White House to put the fundamental principle of religious liberty ahead of its dogmatic left-wing ideology.”

In 2012, Cooper authored a National Policy Analysis paper for the National Center for Public Policy Research about the unconstitutionality of ObamaCare’s contraception mandate. That paper can be found here.

During the last term of the U.S. Supreme Court, Project 21 was involved in the race preferences case of Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder. It will also be involved with the re-hearing of the Fisher case at the lower court level. Project 21 legal experts and other members have discussed these cases in media interviews this year on MSNBC, Fox News Channel, HBO, Glenn Beck’s Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor and Reuters.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982. Contributions to the National Center are tax-deductible and greatly appreciated .

Share

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

Share

DOJ Lawsuit Against North Carolina on Voter ID Condemned

Black Conservatives Condemn Obama Administration Lawsuit to Allow Election Day Abuses

North Carolina Assault an Affront to Supreme Court, Safe Balloting

Washington, DC – In a clear attempt to reclaim and expand their perceived authority to prevent the enactment of election protections, the Obama Administration filed a lawsuit today that challenges new North Carolina ballot safeguards. Coming in the immediate wake of much-needed reform to the Voting Rights Act by the U.S. Supreme Court, members of the Project 21 black leadership network decry this effort by Barack Obama and Eric Holder to turn back the clock on necessary protections enacted by states to ensure the integrity of Americans’ ballots.

“For Attorney General Holder to sue North Carolina for trying to make sure the state has fair and honest elections is insane,” said Project 21’s Council Nedd II, the presiding bishop of the Episcopal Missionary Church. “It seems apparent that Holder must think his department has run out of meaningful and substantive issues to address. Really? After all, President Obama — Holder’s boss — routinely usurps congressional authority in the implementation of ObamaCare. Prosecute that before prosecuting a good government measure such as voter ID.”

In Holder’s lawsuit, filed on Monday, September 30, the Obama Administration seeks to invalidate a new law signed into law in North Carolina in August that will require prospective voters to present valid government ID at their assigned polling place in order to obtain a ballot. Holder, in announcing the White House’s executive challenge to the democratically-enacted state law, claimed such safeguards would “disproportionately exclude minority voters.” The law, however, will not be enforced until the 2016 elections.

“The progressive talking point that voter ID laws disfranchise minority voters has proven to be false on several occasions, and successful implementation of ballot protections in states across the country have proven just the opposite,” said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel at the U.S. Senate Judiciary Committee. “Specifically, when the state of Georgia enacted its voter ID law, increased black voter turnout was recorded. Other states which have recently enacted voter ID laws such as Oklahoma experienced smooth transitions at voting booths without the disenfranchisement routinely argued by liberal special interest groups.”

It is unclear if Holder’s case will pass the test of judicial scrutiny. In bringing the Voting Rights Act into the 21st century, the U.S. Supreme Court’s June ruling in the case of Shelby County v. Holder now requires federal authorities to prove in court that minorities are affected by a law rather than the federal government having sweeping, unregulated authority to selectively designate and demonize laws it does not like. Under the Act’s now-defunct “preclearance” formula (which the Court asked Congress to redefine), all of part of 16 states were afforded no recourse until the Shelby County decision almost 50 years later reformed this overzealous enforcement regime.

This newest Justice Department move, in fact, seeks to not only impose the same preclearance standards on North Carolina as before, but to further impose the standards on the entire state rather then just 40 of North Carolina’s 100 counties.

“Once again, Attorney General Eric Holder is going out on a limb,” said Project 21 Co-Chairman Horace Cooper, a former constitutional law professor and former leadership aide in the U.S. House of Representatives. “It is easy to claim to his supporters and the media that North Carolina’s voting reforms are anti-black, but — in court — he’ll have to prove that. Yet another court loss appears to be headed to the Justice Department. As the head of the nation’s law enforcement arm, he should know better.”

Project 21 filed its own amicus curiae (“friend of the court”) legal brief with the U.S. Supreme Court on the merits of the Shelby County v. Holder case. Previously, Project 21 joined another legal brief that was written by the Pacific Legal Foundation and also joined by the Center for Equal Opportunity that urged the U.S. Supreme Court to take up the case.

Members of Project 21, the only conservative group on hand for interviews at the Court on the day the case was argued, have been interviewed and cited with regard to the Shelby case over 100 times so far in 2013 alone — including by Reuters, the Westwood One radio network, HBO’s “Real Time,” CBS Radio, Voice of America, the Chicago Tribune, Blaze TV, the Washington Examiner and in Cal Thomas’s widely-syndicated opinion column.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982. Contributions to the National Center are tax-deductible and greatly appreciated .

Share

Ninth Circuit Rules in Firearms Freedom Act Case

NEWS RELEASE
(August 23, 2013 – for immediate release)

Ninth Circuit Rules in Firearms Freedom Act Case

MISSOULA, MONT. – The Ninth Circuit Court of Appeals released its opinion today in MSSA v. Holder, the lawsuit brought in federal court to validate the principles of the Montana Firearms Freedom Act (MFFA). The MFFA was enacted by the Montana Legislature and signed into law by then Governor Brian Schweitzer in 2009. The MFFA declares that any firearms made and retained in Montana are not subject to any federal regulation under the power given to Congress in the U.S. Constitution to “regulate commerce … among the states.” The MFFA uses firearms as a vehicle to challenge federal commerce clause power.

Plaintiffs in MSSA v. Holder are the Montana Shooting Sports Association (MSSA), the Second Amendment Foundation, and Gary Marbut, President of MSSA. To set up the legal challenge, Marbut determined to manufacture a youth-model, .22 caliber, bolt-action rifle called the “Montana Buckaroo.” The federal Bureau of Alcohol, Tobacco and Firearms informed Marbut that any such unlicensed manufacture would be illegal under federal law.

Despite Marbut’s BATF-prohibited plans to make the Montana Buckaroo, the federal District Court ruled that the plaintiffs lacked “standing” to bring the lawsuit, and dismissed the lawsuit. MSSA appealed this dismissal to the Ninth Circuit.

In its long-awaited ruling today, the Ninth Circuit reversed the federal District Court on the standing issue, saying that Marbut has standing to bring the challenge, but held that existing Supreme Court precedent was against plaintiffs on the merits of the lawsuit.

Marbut commented, “This was about as good of a ruling as we could have expected from the Ninth Circuit. We must get to the U.S. Supreme Court to accomplish our goal of overturning 70 years of flawed Supreme Court rulings on the interstate commerce clause. We knew that the Ninth Circuit couldn’t help us with that. Only the Supreme Court can overturn Supreme Court precedent. However, now that the standing question is resolved in our favor, we have the green light to appeal to the Supreme Court.”

Marbut says the attorneys involved are already beginning to work on the appeal process.

Marbut continued, “The time is ripe in America for states to challenge federal power, from Obamacare to indefinite detention, to illegal spying on U.S. Citizens and media, to IRS abuses of power, and more. It was the states which created this federal government that has grown to become such a monster. It’s time for the states to get their creature back on a leash. With MSSA v. Holder, we will offer the Supreme Court a chance to do just that.”

Since the MFFA was initially enacted in Montana in 2009, nine other states have enacted clones of the MFFA, and 20-some additional states have introduced MFFA-clone bills. The lawsuit to validate the MFFA principles, MSSA v. Holder, has attracted many intervenors and amicus curiae parties. These include the State of Montana, the attorneys general of eight other states, Montana legislators, legislators from other states, the Goldwater Institute, Gun Owners Foundation, the Center for Constitutional Jurisprudence, the CATO Institute, the Weapons Collectors Society of Montana, the Pacific Legal Foundation, and others.

More information about the Firearms Freedom Act movement and lawsuit is available at:
http://www.FirearmsFreedomAct.com

Share

Fallout From Holding States Liable for Animal Attacks and Damages

Two days ago I wrote about how the state of Utah can be held liable for the death of an 11-year-old boy by a black bear, according to a ruling in the Utah Supreme Court. In that ruling the Supreme Court stated that bears are not part of the “natural condition” one expects to find in the forests and fields. In addition, the same ruling declared that the State of Utah established a “special relationship” with the family of the 11-year-old boy and campers in general because the state was carrying out several things in order to protect the campers from bears. However, the State of Utah can now be sued by the family and may be charged with negligence in carrying out their duties to keep campers safe.

I spoke of the precedent such a ruling may carry in that it raises the question as to how far the courts will go in holding states liable for attacks on humans by wild animals and the damages they can create. What I did not talk about in this article was the negative fallout that may result from this ruling.

There are at least two ways of looking at how states may choose to react to this ruling in Utah. The more obvious side would be to err on the side of caution, perhaps even to the extreme, and quickly move to shut down any and all campsites, for example, when any reports surface of the presence of bears or any other large predator. We may be seeing that now as one report out of Colorado today reveals that officials at the James M. Robb Colorado River State Park, have banned all campers from sleeping in tents because of a reported bear in the area. Officials are attempting to trap the bear and if not successful, the campground will be closed.

Another example, one that doesn’t involve large predators, comes to us from California, where three campgrounds have been closed because squirrels have been found to be carrying bubonic plague.

A less obvious repercussion of the Utah court ruling could begin to appear should states attempt to ensure they are not establishing a “special relationship” with tax payers. If you may recall, the Utah Supreme Court granted the family of Sam Ives, the boy attacked and killed by the bear, standing to sue the State of Utah holding them also responsible for the boy’s death. That ruling was based on two things: one, that a black bear was not a “natural condition”, or an object that gave the state immunity from liability, and two, that the state had established a “special relationship” with the family.

This “special relationship”, at least how I understood the majority opinion, resulted in the state taking on the responsibility to ensure the safety of the campers and that officials had taken several steps to warn other campers and had spent several hours attempting to locate the bear that attacked the boy. Does this mean the state will not be liable if they do not establish a “special relationship?” How would that change the landscape when it comes to campers, hikers, etc.?

And what is not talked about in relation to this Utah incident is what becomes of the liability issue when the states participate in the introduction, reintroduction of moving of dangerous wild animals?

Share

Guns Will Be Confiscated, But How?

Those who seek truth are not afraid to examine the words of all those in positions of power in order to determine what is and what isn’t the truth that drives an agenda or seeks a desired outcome. The gun ownership and rights to self protection debate is full of facts, lies, half-truths, rhetoric, emotions and very little truth.

Neocon and warmonger, John Bolton, former Ambassador to the United Nations under George W. Bush, and John Yoo, a law professor at the University of California, Berkeley, might give us a bit of a glimpse into how the Government of the United States and/or an international power, i.e. United Nations/One World Government, intends to unwittingly disarm the American people.

Very few people understand the U.S. Constitution. Even those who claim they do, in my opinion, may be wrong. But, I’m not here to try to convince you that I understand it. I don’t, but I’m working on it. I do know enough about it to know I know little about it.

If we examine some common themes of the Constitution, i.e. Supremacy Clause, Commerce Clause, Tenth Amendment, Treaties, etc., it will help readers form a basis and assist them in understanding what Bolton and Yoo are saying about treaties and executive orders. Whether it’s the Obama Administration or the next or next, they will succeed in getting guns away from the American population. Historical odds are stacked heavily in favor of that happening. I will repeat myself one more time and say that the millions and millions of guns owned by a few million U.S. citizens is the only and last deterrent keeping us away from total despotic and tyrannical rule. Do away with the guns and everything else becomes a cake walk.

Looking at two recent Supreme Court rulings – Heller v. District of Columbia and MacDonald v. Chicago – we see that the Court has ruled that the Second Amendment guarantees an individual right to own a gun. The same Court also made known that both the governments and the individuals have limits to power and rights, respectively.

Article II of the U.S. Constitution defines the executive powers of the president and also lays the groundwork for Treaties and states that lawful treaties become the supreme rule of law.

We also know that on April 2, 2013, the United States signed the United Nations Arms Trade Treaty. Law states that such signed treaties must be approved by a super majority of the U.S. Senate and, of course, signed by the president. Only then can a treaty become the supreme laws that governs us…….or not?

Historically, we have been witness to presidential power through executive orders. There is always debate as to whether certain executive orders violate the constitutional authority granted the president in defining his or her executive powers. The truth is, executive orders have been used for many, many years, but does the use and abuse of them make it right or legal? Just how far can a president go to accomplish certain things a Congress will not permit? We’ve seen some far stretches.

Executive orders are intended to be used so presidents can clarify and make unsubstantial changes to existing laws. However, many would argue that for several previous administrations abuse of such powers are an overreach of executive power. Some want to blame Barack Obama for being the first to abuse the privilege of executive privilege, but that abuse existed long before President Obama was even born.

In consideration of all this and the fact that we can easily see that the Constitution has been twisted and turned and “reinterpreted”, not unlike the way it was done in ancient times of Roman history that led to the destruction of republics and the rights of people, fear should grip the people today that we are headed in the same direction and that eventually, a treaty, such as the Arms Trade Treaty, will be implemented by executive order. This is what is known as tyranny.

But is it probable or even possible? From what I am seeing, I think it’s easy to state that it’s possible and if things don’t change, it will be probable.

I will leave you with an excerpt of what Bolton and Yoo wrote concerning this.

The attempt to advance gun control through the Arms Trade Treaty might surprise average Americans, but not liberals, who have been long frustrated by the Constitution’s limits on government. Gun-control statutes, like any others, have to survive both the House and the Senate, then win presidential approval. It is far easier to advance an agenda through treaties, unwritten international law and even “norms” delivered by an amorphous “international community.”

Opponents of capital punishment have used treaties to press the Supreme Court to stop the death penalty in Texas. Women’s rights groups advocate an international convention that would achieve the goals of the failed Equal Rights Amendment. And supporters of bans on “hate speech” invoke international norms to defeat First Amendment objections. There also is an international legal doctrine that during the period when a country has signed but not yet ratified a treaty, it must take no measures that defeat the treaty’s object and purposes. Under some liberal theories, this would allow the president to put some measures of the new arms treaty into effect by executive order.

Note: There really is no need to qualify any part of this discussion as being the fault of “liberal theories” and “liberals, and as somehow a battle between left and right, democrat or republican.” Both sides can claim equal fault or credit in the destruction of our Constitutional Republic. It’s all about power and control, divided equally among power and control hungry tyrants.

Share

Day 44 – No Executive Orders

ARTIFICE!

jamesmadisonexecutiveorders

44 days ago, a tyrant walked into a staged room, with children as his backdrop, stared into his teleprompter and lied to the American people….nay, the entire world. In his quest to spread fear and division among the people, he played a shell game of pretending to sign 23 executive orders on gun control. It was a lie! Nothing was signed and nothing has been posted on the White House webpage for executive orders. Why do we let this man continue his onslaught of perpetual deceit? The exact details of the President’s 23 orders can give us insight into the thoughts and intents of this man.

Field and Stream Magazine, interviewed Vice President Joe Biden, the man who claims to be the gun owners’ best friend for the past twenty some years and offers advice to women to buy a double-barrel shotgun for protection. Field and Stream asked Biden this question: “What do you think is the meaning of the Second Amendment? Do you think it is to allow citizens to be armed only to protect themselves from criminals, or was it written to allow the citizenry to offer defense against foreign invaders or oppressive, tyrannical government?”

And this was the V.P.’s answer:

It was written primarily for self-defense. The argument about whether or not it was, you know, that famous phrase of Jefferson’s, “The tree of liberty is watered with the blood of patriots,” which is often used by people who are super-enthusiasts—the Supreme Court has ruled that it’s an individual right. It is not a corporate right. It is not related to a well-established militia, a well-regulated militia. But it also has ruled that it is constitutional to own a gun individually for purposes of sporting, hunting, and/or self-defense.

Isn’t this man amazing? Not only is he a liar and gives poor advice to women about gun protection, he doesn’t understand history nor can he interpret a Supreme Court ruling. The Second Amendment was created for two purposes and I dare contend that the main purpose was for the defense against invaders and tyrants, both foreign and domestic. Over the years, lawmakers and crooked judges, politicians and lawyers worked relentlessly to show that the Second Amendment was ONLY for the purpose of maintaining militias. When the Supreme Court ruled in Heller v. District of Columbia that the Second Amendment was for the right of an individual, contrary to the lie V.P. Biden is promoting, Heller v. District of Columbia did not rule that the Second Amendment was NOT about protection from tyranny. It only clarified that it ALSO applied to the individuals rights, not exclusive of it. To think so would be admitting that only a tyrant, oppressive government, and/or foreign invader would come after individual owners of guns and not an armed militia.

We now have a case of wanting it both ways as far as a tyrant goes. If Biden can convince enough ignorant voters that the Supreme Court ruled the Second Amendment is only for individuals and that the Government, meaning Obama and Biden, are the only ones who can decide what brand, how many and number of bullets that can be used, he is one step closer to filling the role of the very tyrant the Second Amendment was intended to defend us from.

Continue to heed my words. The Second Amendment is the last remaining deterrent from full scale takeover of One World Government.

Share

Day 30 – No Executive Orders

ARTIFICE!

One month, 30 days, and no executive orders appear on the White House web page.

This president lies so much nobody cares or pays attention anymore. Shame!

beararms

The other day a reader sent me a link to an article that appeared in the Wall Street Journal, written by David Rivkin and Andrew Grossman. The basic premise of the article was based on what I think is a fallacy that our Courts would never allow most of the gun control measures being proposed to stand. The authors write:

While the courts are still sorting out Heller’s implications, politicians should not assume that they have a free hand to restrict private gun ownership. Decades of case law interpreting and applying the other provisions of the Bill of Rights show that there are hard-and-fast limits on gun control.

The general framework is straightforward and certainly well-known to those who have studied (let alone taught) constitutional law. The government cannot abridge constitutionally protected rights simply to make a symbolic point or because it feels that something must be done. Any measure must be justified by a legitimate government interest that is compelling or at least important. At the same time, any regulation must be “narrowly tailored” to achieve that interest.

And just who are they trying to convince here? Spoken as real lawyers, practicing in real Washington, D.C. and honestly believing what they write, I think. I suppose once there existed a real confidence in this nation that the separation of powers would do the job it was crafted to do. Not so anymore. Our government is run by a tyrant, who has exclaimed many times that he thinks the constitution is all wrong, that the framers got it all wrong and that he, the dictator, should have more power. He has also demonstrated his disdain for law and order, i.e the separation of powers by exerting use of legislative fiat, known as executive orders.

I’m not sure what the actual reasoning behind Rivkin and Grossman to have faith that the Courts wouldn’t stand for Obama and his cronies’ destruction of the Second Amendment. Yes, they cited Heller v. District of Columbia and McDonald v. Chicago, to claim the Supreme Court loudly proclaimed the Second Amendment was written to protect the individual’s right to self defense and from a tyrannical government, as in the one we currently have. But that’s only a part of what actually took place.

Justice Scalia, in Heller v. District of Columbia, as majority opinion, stated that the Second Amendment was an individual guarantee but also made no bones about the fact that this decision had absolutely nothing to do with what limits can be placed on this right and by whom.

I also recall that shortly after President Obama laid out his plans for health care reform (Obamacare) many “experts” in law and the constitution swore up and down that there wasn’t a court in the nation that would uphold such an unconstitutional piece of legislation as Obamacare and for certain the Supreme Court would never tolerate this. Then magically on d-day, the SCOTUS upheld Obamacare when Justice Roberts jumped from one boat into the other.

And why would anybody have faith that the Supreme Court is going to do the right thing – the right thing being to follow the constitution and the laws written, when every decision almost always falls along party lines? The courts are non partisan? Want to buy a New York bridge?

There are many points in this Wall Street Journal article that are accurate and well written. However, having that kind of faith in our corrupt court system, is just a bit too boy scoutish to me.

Share