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Montana Firearms Freedom Act Predictably Falls in 9th Circuit

By William Peacock, Esq. | Last updated on

I remember the case vividly from law school. It was a stupid holding. The Supreme Court said that the federal government could regulate wholly intrastate matters, such as growing of wheat for personal use, because even wholly intrastate commerce creates a ripple in interstate commerce.

When word of the Montana Firearms Freedom Act reached my inbox, my first reaction was "Yay, freedom!" Then I read it. There's no way a law that declares that wholly intrastate manufacturing of firearms is outside the scope of Congress' power can stand under commerce clause precedent. Seriously, who writes this stuff? (Apparently, at least nine states have done so, with the express purpose of challenging and changing commerce clause jurisprudence.)

My first impressions were, fortunately or not, correct. On Friday, the Ninth Circuit held that the MFAA was preempted by federal law and that one of the other plaintiffs, a manufacturer, was subject to federal firearms licensing (FFL) laws. There was one slight glimmer of hope for manufacturers, however: Judge Bea concurred with the FFL ruling, while arguing that it was unnecessary to reach the MFAA issue.

The MFAA -- A Grammatically Incorrect, Obviously Invalid Piece of Legislation

The MFAA provides that any firearms or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce."

Apparently capitalization isn't big in [m]ontana.

Under the statute, a weapon only needs "Made in Montana" to be "clearly stamped on a central metallic part" to be legally manufactured.

The Individual Plaintiff -- a "Montana Buckaroo"

Gary Marbut manufactures shooting range equipment for law enforcement and wishes to produce the "Montana Buckaroo," a .22 caliber rifle that is ready for production. He has several hundred Montanans waiting in line that will only purchase from someone who is not a federal firearms licensee (because damn the man!). He also wants to make ammunition, which a state agency is ready to purchase, should it be legal.

All of the gun and ammo orders were conditioned on this lawsuit succeeding. Marbut and the other plaintiffs brought this lawsuit seeking declaratory and injunctive relief.

Manufacturing Lawsuits

For the uninitiated, this is what we call "manufacturing a lawsuit." Write a law of questionable legality. Find or create the perfect plaintiffs. Sue for declaratory relief and hope that the appeals courts fix the law in your favor.

Such proactiveness isn't necessarily a bad thing. Without litigation, long-standing precedent, even when wrong, doesn't change.

Hands Are Tied

Everyone here agrees, Marbut et al. included, that United States v. Stewart (Ninth Circuit) and Gonzales v. Raich (U.S. Supreme Court) control. Raich held that intrastate activities can be regulated by Congress if there is a rational basis to conclude that the activities, in the aggregate, affect interstate commerce. In Raich, it was marijuana. In Stewart, it was a homemade machine gun.

And that faintly remembered law school case from 1942? Wickard v. Fillburn was about a single farmer's wheat.

The "Buckaroo" is barred by Congress' existing interstate commerce powers. And "[b]ecause the MFFA purports to dictate to the contrary ..., it is necessarily preempted and invalid." Or at least, it's invalid until the law changes.

Until then, Montanans can cross their fingers for SCOTUS and Justice Thomas.

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