January 18, 2022

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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Montana Congressional and Legislative Candidate Grades and Endorsements

NEWS RELEASE
(for immediate release – April 30, 2014)

MSSA issues legislative endorsements for Primary Election
and Grades for Congressional Candidates

MISSOULA – The Montana Shooting Sports Association today announced its endorsement of 23 legislative candidates for the June, 2014, Primary Election. Endorsements have been made only in races with contested primaries, and only in those races where a candidate clearly superior for gun owners and hunters can be identified.

MSSA has recommended candidates in contested races where information on issues significant to gun owners issues is available. This usually includes voting records for incumbents, and returned candidate surveys for candidates for open seats or candidates challenging incumbents.

MSSA is the primary political advocate for gun owners and hunters in Montana, having gotten 64 pro-gun and pro-hunting measures through the Montana Legislature in the past 30 years.

Legislative Candidates

The candidates endorsed for the June, 2014 Primary Election include:

Montana Senate
Mark Blasdel – Senate District 04
Kris Hansen – Senate District 14
Tonya Shellnutt – Senate District 24
Cary Smith – Senate District 27
Joanne Blyton – Senate District 29
Jedediah Hinkle – Senate District 32
Marissa Stockton – Senate District 42
Scott Boulanger – Senate District 43

Montana House
Ronalee Skees – House District 07
Mike Hebert – House District 11
Ann Morren – House district 18
Ryan Osmundson – House District 30
Sarah Laszloffy – House District 53
Jeff Essmann – House District 54
Seth Berglee – House District 58
Debra Lamm – House District 60
Mike More – House District 65
Matthew Monforton – House District 69
Bob Wagner – House District 71
Mike Miller – House District 80
Theresa Manzella – House District 85
Edward Greef – House District 88
Dan Salomon – House District 93

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

Congressional Candidates

Note: The grades below are derived from everything MSSA knows about the candidates. MSSA FAR prefers to have a candidate’s voting record, than a response to MSSA’s Candidate Questionnaire. It’s too easy for a candidate to espouse one position on a Candidate Questionnaire and then vote differently. MSSA believes voting records are the most reliable measure of a candidate’s affinity for issues of interest to MSSA, its members, and Montana gun owners. Some candidates have no voting record and also declined to return MSSA’s Candidate Questionnaire. MSSA scores these candidates with a “?” and views them as hiding anti-gun sentiments.

Only candidates with in a contested Primary Election are graded for the Primary.

U.S. Senate
Democrat Primary
Name Grade Basis
Dirk Adams D Candidate questionnaire
John Bohlinger C- Voting record
John Walsh ? No information

Republican Primary
Susan Cundiff ? No information
Steve Daines A- Candidate questionnaire
Champ Edmunds A Voting record – 100% + CQ

U.S. House of Representatives
Name Grade Basis
Democrat Primary
John Driscoll ? No information
John Lewis ? No information

Republican Primary
Elsie Arntzen A+ Voting record – 100% + CQ
Matt Rosendale A Voting record – 100% + CQ
Corey Stapelton A Voting record – 100% + CQ
Drew Turiano B Candidate questionnaire
Ryan Zinke B Voting record – 85%

All endorsed candidates were sent a copy of the endorsement letter attached below.

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Supreme Court Refuses to Accept MT. Petition in MSSA v. Holder

Dear MSSA Friends,

The US Supreme Court has declined to accept the State of Montana’s separate petition for review of the Ninth Circuit’s ruling in our lawsuit to validate the principles of the Montana Firearms Freedom Act (MFFA), MSSA v. Holder. We’re now at the end of this particular road.

Thanks ever so much to Missoula attorney Quentin Rhoades for being MSSA’s sympathetic and competent legal counsel throughout. Thanks also to MSSA’s partner in this lawsuit, the Second Amendment Foundation. And, thanks to the Montana legislators who believed enough in liberty and states’ rights to pass the MFFA.

Still, there’s more to be said about the effort.

The MFFA caught a sympathetic wave as the first legislation of its type in the US. It was cloned and enacted in eight other states, and cloned and introduced in the legislatures of about 23 other states yet. Clearly, a majority of the states of the US are operating under the same frustration with the run amok federal government as is Montana. Further, the MFFA inspired a whole wave of other “freedom acts,” such as the light bulb freedom act, the whiskey freedom act, the tobacco freedom act, the healthcare freedom act, and others. Inspired by the MFFA, the US is now alive with “nullification” efforts at the state level – state efforts telling the federal government to back off.

Also, because there are enacted or introduced FFAs in so many other states, there may well be parallel lawsuits occurring in other federal court circuits, putting pressure on the Supreme Court to rethink its rejection of the effort.

There is certainly good reason for the Supreme Court to step into this general controversy, if it has any hope to maintain respect for it’s historic-but-abandoned turf as any sort of check on the other federal branches. See again my open letter to the Supreme Court urging the justices to accept MSSA v. Holder, at:
http://www.wnd.com/files/2013/11/MontanaLetter22.pdf

In a gentlemen’s agreement with the BATFE, and while our lawsuit was working, I steadfastly advised everyone to NOT make and sell the Montana-only firearms authorized by the MFFA. I no longer take that position. However, I DO now warn people that attempting to do what the MFFA authorizes may result in federal persecution (and prosecution).

Finally, this epic trip to the US Supreme Court, and the Court’s rejection of MSSA v. Holder, have finally persuaded me that it is fruitless to expect any part of the federal government to control the lust for centralized and tyrannical power that our federal government displays. Further, and perhaps more important, it proves that it is improper to rely on the federal government, or any branch thereof, to be the judge of what powers the states have delegated to the federal government in the Constitution. As the creator of the Constitution and the federal government, only the states may properly or practically do that.

That’s why I have proposed the concept of the Constitutional Settlements Commission (CSC), a way for the states to operate in unison to “just say no” to the federal government and its countless minions. For a more thorough discussion of the CSC concept, see:
http://www.marbut.com/csc

In closing, I must admit that my fervent hopes for a peaceful restoration of individual liberty and states’ rights have been dimmed by the Supreme Court and it’s rejection of MSSA v. Holder. I wonder if the justices of the Supreme Court have noticed what’s going on in the Ukraine, Venezuela, Thailand, and other places.

It’s been a great run. Thanks for your interest and support. While I remain totally committed to peaceful political efforts to restore liberty, the alternative is never off the table. That’s exactly why we have reserved to ourselves the Right to Keep and Bear Arms.

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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Firearm safety/self defense class – April 12th – Missoula

Gun Safety for Personal Protection and
Concealed Weapon Permits Course
Saturday, April 12th, 2014

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, April 12th, 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, shooting skills and more, 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 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.

Please forward this email to interested others.

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

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An Initiative to Ban Trapping on Public Lands in Montana

HeritageVanceIt has been brought to my attention that an organization named Footloose Montana, is attempting to gather enough signatures for a citizens’ initiative to ban trapping on public lands. Among many others, the Montana Trappers Association opposes such a restriction.

I was recently sent a copy of an email from Gary Marbut at the Montana Shooting Sports Association. That email was a copy of information, i.e. history, etc. of the current Montana constitutional amendment that was passed in Montana, through citizen initiative in 2004. Below is a copy of the comments submitted to Jon Bennion from the Montana Department of Justice.

As you read through the comments, observe the transformation of language through the movement of an amendment whose intent was to forever protect hunting, fishing and trapping. Forget about what was intended in the original language, the change of language was a direct rewriting of the bill, watered down to mostly a worthless piece of undefined nonsense.

I have written about other state’s attempts at crafting some kind of constitutional amendment to protect hunting, fishing and trapping and by and large, they all end up with basically the same language. One might suspect a conspiracy or perhaps ignorance begets more ignorance as with each attempt at a bill to preserve hunting, fishing and trapping, it’s only a matter of copying the language of other bills that have come before.

I’m not a lawyer and have never played one on television. But, I’m not stupid. I’ve hunted and fished my entire life, so far, and I want to be able to do that until I die and I want to be able to do that with the freedoms and of the same time capacity as I always have. Such nonsensical jumbled up destruction of legal mumbo jumbo only serves to insure “opportunity”. Why not language that requires fish and game departments to manage wildlife for MAXIMUM surplus harvest?

According to the email, the author of the original language of Montana’s proposal for a constitutional amendment, wrote that the state of Montana will manage fish and wildlife to “preserve opportunities for the harvest.” Nothing here actually offers maximums, only minimums. The request is for the state to manage wildlife for opportunity to hunt, fish and trap. In its worst form if the state auctioned off one elk tag per year, under this amendment the state has preserved an opportunity. I suppose some might argue that the wording is plural, therefore at least two tags must be issued to two people.

Once the political crooks got done with the language, very little ended up changing, in my opinion. Perhaps now that some environmentalist totalitarians want to ban trapping on public lands, Montana citizens and their hunting heritage protection constitutional amendment will be tested.

As you can see from the email, the person who crafted the original language, states what the intent was. And we can see what the crooks in the state capital did to intent.

Preservation of harvest heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.

That’s the entire amendment. When you trust your own government officials to protect your interests, you end up hanging yourself, going to your grave with “good intentions.” Politicians will never hogtie themselves to responsibility. That is why all bills are crafted in such as way so that when lawyers get done with the language, it may as well have been written in German to begin with.

Here is a copy of the email I received:

Jon Bennion
Montana Department of Justice

Dear Mr. Bennion,

The purpose of this communication is to provide comment concerning the proposed initiative to ban trapping on public lands.

Specifically, we believe that major parts of this proposed initiative are in conflict with the Montana Constitution. We urge that this proposal be returned to proponents with instructions from your office to correct those conflicts.

History

In 1992, the Montana Shooting Sports Association (MSSA) proposed a constitutional initiative, specifically CI-62, to put protection for hunting into the Montana Constitution. I, personally, wrote the language of CI-62. The operative language of CI-62 was, “The people of the state retain the right to hunt game animals. This right is vested in the individual citizen and shall forever remain inviolate.” CI-62 failed to gain sufficient signatures to gain ballot status, largely because of the organized opposition to signature-gathering by the Montana Department of Fish, Wildlife and Parks.

In 2003, MSSA sought to achieve the same result via a legislative referendum. I solicited Rep. Joe Balyeat to submit a bill draft request to the Legislative Services Division for this purpose. I provided Rep. Balyeat with language revised from CI-62, which he submitted to the LSD for bill drafting. The language I provided to Rep. Balyeat was:

” NEW SECTION. Section 1. Article II of The Constitution of the State of Montana is amended by adding a new section 36 that reads:

” Section 36. Preservation of harvest heritage. (1) The harvest of wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state. The heritage does not create a right of trespass on private property and is subject to regulation by law.

” (2) The state shall manage fish and wildlife to preserve opportunities for the harvest of wild fish and wild game animals by the citizens of the state.”

There are two important issues about the language submitted in 2003. First, I intended that this constitutional protection be included in Article II of the Montana Constitution, the Declaration of Rights. Mr. Greg Petesch, the chief legal officer for the LSD preferred placing this new language into Article IX, but assured us that the language would have the same effect there as if it had been incorporated into Article II.

Second, I very deliberately changed the language from CI-62 to “harvest of wild fish and wild game animals” specifically to include fishing and trapping. One of the complaints MSSA had received about the language of CI-62 was from the Montana Trappers Association that the language of CI-62 did not protect trapping. I thought that to be a valid criticism and revised the language submitted to the LSD in 2003, again specifically to sweep trapping into the proposed constitutional protection.

This bill draft was introduced into the 2003 legislative session by Rep. Balyeat as House Bill 306. The introduced language read as:

” NEW SECTION. Section 1. Article IX of The Constitution of the State of Montana is amended by adding a new section 6 that reads:

” Section 6. Preservation of harvest heritage. (1) The harvest of wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state, does not create a right to unauthorized trespass on private property or diminution of other private rights, and, for state residents, may be abridged only by general regulation necessary to further a compelling state interest.

” (2) The state shall manage publicly owned fish and wildlife to preserve opportunities for the harvest of wild fish and wild game animals by the citizens of the state.”

HB 306 passed the House by a vote of 81-17 and the Senate by a vote of 49-1, sufficient majorities for it to be referred to the ballot as a constitutional referendum in the general election of 2004, C-41. The intent for the language of HB 306 to also protect trapping was definitely a part of the discussion of HB 306 in legislative committee and floor sessions.

I recall that C-41 was approved at the ballot in 2004 by the highest percentage of the Montana electorate of any constitutional change ever made in Montana’s history. As MSSA campaigned among the public for the passage of C-41, we certainly portrayed part of the intent for this constitutional change as needed to protect trapping. I believe that to protect trapping is one of the reasons such a substantial majority of the electors voting on the measure voted for C-41.

The language finally passed in HB 306, subsequently approved at the 2004 General Election ballot by the people of Montana, and now in the Montana Constitution at Article IX, Section 7, is: ” Preservation of harvest heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”

Conclusion

As demonstrated above, it was very clearly my intent in drafting the language submitted to the LSD that trapping be included within the protection of C-41. It was the intent of the Legislature to protect trapping with HB 306. And, it was the intent of the people of Montana to give trapping constitutional protection with C-41.

Because Article IX, Section 7 of the Montana Constitution clearly protects trapping of game animals, the proposed initiative must be revised substantially in order to pass constitutional muster, if that can be done at all, before it is allowed to proceed.

Sincerely,

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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

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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

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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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Montana Gun Owners’ Health Care Privacy Effective October 1

NEWS RELEASE
09/26/2013

Gun Owners Health Care Privacy Becomes Effective October 1st
Providers May Not Ask About Guns

Missoula, MONT. – The Montana Shooting Sports Association (MSSA) reminds Montana gun owners and health care providers that House Bill 459, enacted by the 2013 legislative session, becomes effective on October 1st. HB 459, now Montana law at 50-16-108, M.C.A., prohibits health care providers from asking patients questions about firearm ownership, possession or use. This new law does allow health care providers to inquire about patient possession of a firearm on the person of the patient at the time of treatment.

HB 459, carried by Rep. Krayton Kerns (R-Laurel), was passed by the Legislature and signed by Governor Bullock to address concerns by gun owners that medical interviews and computerized medical records might be used as a tool to collect and centralize information about individuals’ firearm ownership. Gun owners were also concerned that anti-gun bias by a health care practitioner might cause information about patient firearms to skew a practitioner’s patient assessment or treatment.

According to Montana law, health care providers and facilities affected by this new law includes both medical and psychological practitioners.

MSSA President Gary Marbut commented, “When originally introduced, HB 459 only specified that health care practitioners could not refuse treatment because a patient declined to answer questions about firearms. However, the Senate Judiciary Committee expanded the measure to also forbid providers from even asking patients questions about firearms. The House approved that change and the Governor signed the bill.” “Because firearms are so ubiquitous in Montana and so unrelated to health care,” Marbut continued, “we think this is very positive public policy by the Legislature. This new law is very suitable for Montana people and for Montana culture.”

MSSA is the primary political advocate for gun owners in Montana and has gotten 63 pro-gun and pro-hunting bills passed since being founded in 1989. See:
http://www.mtssa.org/success

– 30 –

Information:

50-16-108. Privacy in health care — ownership of firearms. (1) No health care provider or health care facility may:
(a) refuse to provide health care to a person because the person declines to answer any questions concerning the person’s ownership, possession, or use of firearms; or
(b) inquire about a person’s ownership, possession, or use of firearms as a condition of receiving health care.
(2) For the purposes of this section:
(a) the terms “health care”, “health care facility”, and “health care provider” have the meanings provided in 50-16-504; and
(b) the term “possession” does not apply to the presence of a firearm on the person of a patient at the time of treatment.

50-16-504. Definitions. As used in this part, unless the context indicates otherwise, the following definitions apply:
(4) “Health care” means any care, service, or procedure provided by a health care provider, including medical or psychological diagnosis, treatment, evaluation, advice, or other services that affect the structure or any function of the human body.
(5) “Health care facility” means a hospital, clinic, nursing home, laboratory, office, or similar place where a health care provider provides health care to patients.
(6) “Health care information” means any information, whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and relates to the patient’s health care. The term includes any record of disclosures of health care information.
(7) “Health care provider” means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession.

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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