Yes, this will indeed prove interesting.
Posted on 12/03/2010 6:50:08 AM PST by marktwain
MISSOULA, MONT. --(Ammoland.com)- Plaintiffs in litigation to validate the principles of the Montana Firearms Freedom Act (MFFA) have appealed an expected but adverse federal district court decision to the Ninth Circuit Court of Appeals.
The plaintiffs in MSSA v. Holder include the Montana Shooting Sports Association (MSSA), the Second Amendment Foundation (SAF), and MSSA President Gary Marbut of Missoula.
The MFFA is designed to test the power of Congress to regulate everything without limits under the narrow power given to Congress in the Constitution to “regulate commerce … among the states.”
The MFFA declares that any firearms, ammunition and firearm accessories made and retained in Montana are not subject to any federal authority under the Commerce Clause. Congress must find some authority among the Constitution’s “enumerated powers” for every action it takes.
Plaintiffs filed the lawsuit MSSA v. Holder on the day the MFFA became effective in Montana, October 1, 2009. Since the MFFA enactment in Montana, the MFFA has been cloned and enacted in seven other states, and FFA bills have been introduced in the legislatures of 20 more states.
In a judgment entered on October 19, 2010, the district court granted the U.S. Motion to Dismiss. It is this judgment that is now appealed to the Ninth Circuit.
MSSA President and plaintiff Gary Marbut commented, “We’ve known all along that the district court will not provide what we seek, the reversal of a half-century of bad Commerce Clause precedent. We need to get to the U.S. Supreme Court for that. This notice of appeal puts us at the 50-yard line in our quest to get to the Supreme Court – it is a big step in the direction we need to go.”
Not only has the FFA concept attracted the interest and support of many other states frustrated with an overbearing federal government, but the MSSA v. Holder lawsuit has attracted an unusual, perhaps record, number of amici (amicus curiae, friends of the court). Some qualified observers say they’ve never seen a case that has attracted as much amici support at the district court level as this case has. Amici include the State of Utah (also representing several other states), Gun Owners Foundation (Gun Owners of America), the Goldwater Institute of Arizona, the Paragon Foundation of New Mexico, the Weapons Collectors Society of Montana, an amicus group of Montana legislators who supported the MFFA, and another amicus group of non-Montana legislators who sponsored or co-sponsored FFA bills in other states. The State of Montana has also intervened in support of the MFFA. Other amici are expected to enter in support of the MFFA when the lawsuit is argued before Ninth Circuit.
“It is totally obvious from the positions of federal participants, both lawyers and judges for the U.S.,” Marbut commented, “that the federal establishment definitely, almost desperately, wishes to prevent this issue from having a trial on merit.”
The likely options for the Ninth Circuit are to uphold the judgment of the district court or to overrule the district court and remand the case back to the district court for trial. Regardless of what action is taken by the Ninth Circuit, MSSA v. Holder is certain to be appealed to the Supreme Court. If the Supreme Court only reviews the district court dismissal on appeal to it, the Supreme Court can still rule on the merits of the case since part of the grounds for dismissal is based on merit.
Oops! This was published 2 December, not 1 December 2010.
Yes, this will indeed prove interesting.
Federalism/10A ping!
Now, do we have the intestinal fortitude to actually support overturning Wickard v. Filburn and the New Deal “substantial effects” Commerce Clause, or will we run screaming in the other direction because it will also take down the federal domestic drug war?
Kill TWO federal boondoggles with one shot??? Where do I sign?
It's WAY more than two, bro. In addition to federal firearm regulations like the AWB, it will also take down the DEA, the EPA, the Department of Education, OSHA, and a litany of other federal agencies and legistlation like the "hate crimes" laws.
The "substantial effects doctrine" is a virtual open-ended grant of power and has been the federal governments "catch-all" claim of authority for decades.
This is Hugh.
Oh, I know. Believe me, I know.
The 9th Circus is the most liberal in the land. Hopefully the Supreme Court takes this case soon.
The idea behind Wickard is so fundamentally at odds with the concept of a limited federal government that I simply cannot understand why it hasn’t already been overturned. The case stood for the proposition that a farmer cannot even grow food for his own family on his own farm, because of the fact that by doing so he will reduce demand for the food produced by other farmers (including some across state lines), thereby upsetting some 5-year master plan dictated by the Politburo errrr, Department of Agriculture. Utterly outrageous - what’s next, federal employees giving you the choice between going through a scanner that reveals every detail of your body vs. getting felt-up if you refuse the scan?
Oh.
Wait.
Nevermind.
Seriously, Wickard must be tossed out. It destroys the concept of federalism, the concept that we should be governed by those closest to us - physically and electorally. The way things are now, people 1,000 or more miles from most people pass laws in the dark of night without even knowing what’s in them, and then delegate the power to interpret those laws to a bunch of unelected, unaccountable bureaucrats. If the Founders could be somehow resurrected, I know for a fact that they’d begin fomenting a revolution as soon as they found out what was going on.
I hope they do this with tobacco.
And yet GWB, who professed to want "original intent" SC justices sent his Justice Department lawyers before the Supreme Court to argue to uphold it in the Raisch case.....
Pull the trigger, let the feathers fly as they will!
It's not the Wickard case that's the problem. It's the way the Wickard case has been construed by subsequent courts, ignoring the law and facts of Wickard, and taking a pro-fed-power remark as having unlimited application.
Those who read to the end of the case find out that Filburn could have consumed the excess on premises without penalty, by feeding unthreshed grain to his livestock (a common means of consumption).
The Wickard Court suggests that Filburn could not consume his grain without penalty, then explains why allowing this will affect interstate commerce, and therefore it's permissible to penalize growing wheat for home consumption. But the law did not forbid growing wheat for home consumption.
Was that the case where Wickard was cited by (Roberts?, Alito?) in the majority opinion? Do I just recall incorrectly?
The state laws that aim to disempower the feds over firearms are going to be found unconstitutional by every Circuit that takes up a case. SCOTUS is apt to deny cert, but if it takes up a case, it will agree with the Circuit. The only way the feds will be reigned in on this is by force of violence. I'm not advocating that, just saying that no part of the federal government is going to relinquish a hold on the power to regulate firearms at the personal level.
If they will not give it up, we're going to have to take it back. The longer we wait, the less likely it becomes that we will still have the means to do so.
In theory only. Somehow, we the people need to restore this theory to practice.
A difference without a distinction. The sticking point here is that the federal government, under the Commerce Clause, can regulate an activity that within itself is not commerce and does not cross state lines.
Nothing complicated here...the people of Montana simply need to tell the leftists on the 9th circuit to go directly to HELL. We will make our OWN gun laws for our state. If the left does not like them, TOUGH!!!! Like the man said...COME AND TAKE THEM!!!!
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