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yellowfin
08-27-2009, 6:00 AM
Can't believe I'm the first person to post this. Found on Pennsylvania Firearms Owners Association (http://www.pafoa.org):


http://saf.org/viewpr-new.asp?id=302
GUN GROUPS TO SUE OVER MONTANA-MADE AND RETAINED FIREARMS
For Immediate Release: 8/24/2009

BELLEVUE, WA - the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) have formed a strategic alliance to litigate the principles of the Montana Firearms Freedom Act (MFFA), passed by the 2009 Montana Legislature and signed into law by Montana Governor Brian Schweitzer.


The MFFA declares that any firearms made and retained in Montana are not subject to any federal authority, resisting Congress's dramatically expanded use of the interstate commerce clause to justify Washington's regulation of virtually all of the private economy. The MFFA also applies to firearm accessories and ammunition.


MSSA is most well-known for advancing pro-gun and pro-hunting bills in the Montana Legislature, and has been successful with 54 pro-gun and pro-hunting measures in the past 25 years. SAF is a pro-gun foundation in Bellevue, Washington, established to press the rights of gun owners primarily in judicial fora. SAF has been a party to numerous lawsuits to assert the rights of gun owners across the Nation.


The primary purpose of the MFFA is to set up a legal challenge to federal power under the commerce clause. MSSA and SAF expect to mount this legal challenge by filing a suit for a declaratory judgment to test the principles of the MFFA in federal court on October 1st, the day the Montana law becomes effective.


The concept of the Firearms Freedom Act has caught fire nationwide. Tennessee has passed a clone of the MFFA. Other clones have been introduced in the legislatures of Alaska, Texas, Florida, South Carolina, Minnesota and Michigan. Legislators in 19 other states have indicated that they will introduce MFFA clones soon or when their legislatures next convene. See: http://firearmsfreedomact.com


This wave of interest across the Nation is what the federal judiciary calls "emerging consensus" and will play an important role in validating the principles of the MFFA.


MSSA president Gary Marbut commented, "We're excited to get the MFFA into court to articulate and argue the principles of freedom and states' rights. It's especially encouraging that people in so many other states are getting tickets to ride this particular freedom train. It will be an interesting journey, and we hope successful one."


SAF founder Alan Gottlieb added, "This is an issue that needs public attention because it challenges federal intrusion into an area where the federal government clearly, and literally, has no business."


The MSSA/SAF legal team is currently working up its arguments and litigation strategy. The team has identified several areas of rationale' that have never been discussed before in cases about Congress's commerce clause power. The general thesis is that Washington has gone way overboard in attempting to regulate the internal affairs of states under the strained theory that states' internal activities are related to interstate commerce.


Although the MFFA addresses firearms, ammunition and firearm accessories specifically, it is primarily about states' rights and the commerce clause power of Congress. Firearms are the object; states' rights and freedom are the subjects. Not quite sure how well it's going to work, but nice to see some pushback against the JBT's on a national level! :thumbsup: I guess if Cruikshank is overturned then Miller is weakened. Is there a weak point in Wickard's foundational precedent that makes it vulnerable to attack? Wickard is almost as bad as Slaughterhouse if not equally so.

Paladin
08-27-2009, 8:10 AM
If we win this, it will go a long way to restoring the principle of federalism in our country. This would be a HUGE win.

Untamed1972
08-27-2009, 8:15 AM
Sounds like the state of my birth is calling me home......too bad it's gets so damn cold there!

Shotgun Man
08-27-2009, 8:28 AM
I don't see the difference in this case and Gonzales v. Raich (http://en.wikipedia.org/wiki/Gonzales_v._Raich)where a California marijuana user challenged the government's prosecution of him under federal drug law as exceeding the gov's authority under the commerce clause. He lost.

The court held that conceivably mj grown strictly for intrastate consumption could wend its way onto the illicit market. Unless the court is willing to overturn recent precedent, we're screwed.

Raich:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity


Applying current Supreme Court precedent, congress does have the authority under the commerce clause to regulate Montana-made firearms.

GearHead
08-27-2009, 8:47 AM
I don't see the difference in this case and Gonzales v. Raich (http://en.wikipedia.org/wiki/Gonzales_v._Raich)where a California marijuana user challenged the government's prosecution of him under federal drug law as exceeding the gov's authority under the commerce clause. He lost.

The court held that conceivably mj grown strictly for intrastate consumption could wend its way onto the illicit market. Unless the court is willing to overturn recent precedent, we're screwed.

Raich:


Applying current Supreme Court precedent, congress does have the authority under the commerce clause to regulate Montana-made firearms.

Right, but that was 1 individual trying to trump federal law, this is a state telling the fed that the law doesn't apply. The concept is not quite the same.

7x57
08-27-2009, 8:49 AM
I don't see the difference in this case and Gonzales v. Raich (http://en.wikipedia.org/wiki/Gonzales_v._Raich)where a California marijuana user challenged the government's prosecution of him under federal drug law as exceeding the gov's authority under the commerce clause. He lost.


While your point that the courts seem unwilling to apply the law if Federalism is involved is quite true, there is one difference between MJ and firearms: firearms can be labeled, serialized, and tracked. That means that unlike the case with MJ one can quite easily verify whether a firearm has the "made in Montana" label and no federal serial number (or any other label settled on), and therefore is illegal in interstate trade.

Will it help? Quite possibly not, since the courts believe the Commerce Clause is a magic wish-granting genie and the government seems to be able to get anything it wants by chanting it a few times. The court's legal theory would be that someone who bought a Montana firearm might have bought a federally regulated one instead, and therefore the magic genie can wave it's wand and banish it. But there *is* a difference, if the courts choose to notice it.

7x57

Untamed1972
08-27-2009, 8:56 AM
While your point that the courts seem unwilling to apply the law if Federalism is involved, there is one difference: firearms can be labeled, serialized, and tracked. That means that unlike the case with MJ one can quite easily verify whether a firearm has the "made in Montana" label and no federal serial number (or any other label settled on), and therefore is illegal in interstate trade.

Will it help? Quite possibly not, since the courts believe the Commerce Clause is a magic wish-granting genie and the government seems to be able to get anything it wants by chanting it a few times. The court's legal theory would be that someone who bought a Montana firearm might have bought a federally regulated one instead, and therefore the magic genie can wave it's wand and banish it. But there *is* a difference, if the courts choose to notice it.

7x57

Could it be argued under the milita portion of 2A, that for a state to be able to maintain it's own militia, possibly to resist federal intrusion by force, it needs to be able to have access to it's own arms outside of federal control?

Shotgun Man
08-27-2009, 9:05 AM
Right, but that was 1 individual trying to trump federal law, this is a state telling the fed that the law doesn't apply. The concept is not quite the same.

I see your point, but it was the voters of this state that approved the Marijuana Compassionate Use Act. So Raich had the moral authority of the electorate on his side.

Roadrunner
08-27-2009, 9:29 AM
While this is good in gun friendly states, California and states that are antagonistic toward private ownership of guns, not so much.

xxdabroxx
08-27-2009, 9:33 AM
Yay for Montana.

PatriotnMore
08-27-2009, 9:55 AM
Whats amazing to me is that the Judicial Branch of our government waits till suit is brought against these types of laws to make decisions, especially the Federal Government, which is suspect at best, and shows some degree of complicity in the process of abuse against the people and the Constitution.

Why is it that our Judicial Branch does not take it upon itself to look at such laws at the time of introduction and explain to the legislative branch that their laws are unconstitutional, or on poor grounds?

We have State and Federal high courts, and yet the attitude from them appears to be, enact what you will, if we have to, we'll take a look at it, and make a decision. Often a wrong one, to add insult to injury.

yellowfin
08-27-2009, 10:00 AM
Whats amazing to me is that the Judicial Branch of our government waits till suit is brought against these types of laws to make decisions, especially the Federal Government, which is suspect at best, and shows some degree of complicity in the process of abuse against the people and the Constitution.

Why is it that our Judicial Branch does not take it upon itself to look at such laws at the time of introduction and explain to the legislative branch that their laws are unconstitutional, or on poor grounds?

We have State and Federal high courts, and yet the attitude from them appears to be, enact what you will, if we have to, we'll take a look at it, and make a decision. Often a wrong one, to add insult to injury.

That and that alone is the limit on the power of the judicial branch. If they could simply whack laws without any filtering process they'd essentially be an oligarchy with virtually unlimited veto power. It's bad enough that they are often complicit in upholding bad laws and nullifying good ones as it is. In theory their life appointments are supposed to be a means of removing them from political interests, but in practice as we have seen with Ginsberg, Breyer, and Stevens is that it unfortunately has guaranteed entrenchment of their politics and total lack of accountability.

I really, really hate having to hope, beg, and pray for judges who I barely trust in the first place to stand up to this horrible problem that has the full force of the federal government behind it to stand up to it all demand that it cease.

dantodd
08-27-2009, 10:10 AM
In theory their life appointments are supposed to be a means of removing them from political interests, but in practice as we have seen with Ginsberg, Breyer, and Stevens is that it unfortunately has guaranteed entrenchment of their politics.

I think it is difficult to lay partisanship solely at the feet of ustices on the left side of the aisle.

PatriotnMore
08-27-2009, 10:18 AM
I understand what you are saying. It seems to me that suit is going to be brought, these suits tie up the courts and backlog the system.

A decision is going to be made in any event, if that law is in direct violation in the writing and spirit of the Constitution, why should it be allowed to see the light of day, cause citizens to become criminals, charged, fined, and possibly incarcerated?

The least the Judicial branch could do is inform the legislature of their initial findings, and let them know that such law is in direct conflict, and will more than likely be overturned. This will save an enormous amount of money, time, and keep citizens from being charged with a crime, when no crime should be legislated.


That and that alone is the limit on the power of the judicial branch. If they could simply whack laws without any filtering process they'd essentially be an oligarchy with virtually unlimited veto power. It's bad enough that they are often complicit in upholding bad laws and nullifying good ones as it is. In theory their life appointments are supposed to be a means of removing them from political interests, but in practice as we have seen with Ginsberg, Breyer, and Stevens is that it unfortunately has guaranteed entrenchment of their politics.

Legasat
08-27-2009, 10:22 AM
Keeping fingers crossed.

Go Montana!

yellowfin
08-27-2009, 10:25 AM
I understand what you are saying. It seems to me that suit is going to be brought, these suits tie up the courts and backlog the system.

A decision is going to be made in any event, if that law is in direct violation in the writing and spirit of the Constitution, why should it be allowed to see the light of day, cause citizens to become criminals, charged, fined, and possibly incarcerated? It is sad and sickening to say but quite frankly too many judges in this country outrightly hate the Constitution. They hate limited government, they hate absolute rules other than absolute rules saying they have absolute power, they hate individual liberty except in such capacity as it may be used to destroy society as we would have it, and they hate our history and our culture except the parts where they succeeded in forcing the destruction thereof. I wish there was another way of looking at it but it's simply inescapable fact. They simply would not do as they do for any other reason.

wildhawker
08-27-2009, 10:28 AM
I think it is difficult to lay partisanship solely at the feet of ustices on the left side of the aisle.

Unquestionably true. Many choose only to see the wrongs of their antagonist... it's all BS unless we happen to agree with it. We can absolutely find fault with recent "conservative" decisions.

7x57
08-27-2009, 10:56 AM
I see your point, but it was the voters of this state that approved the Marijuana Compassionate Use Act. So Raich had the moral authority of the electorate on his side.

Indeed. I seem to recall that two or three other states submitted amicae (sp?) in favor of California even though they didn't have any such law. They said they disagreed with CA as a matter of policy but insisted that CA had the power to choose it's policy without federal interference.

Of course, anything so nakedly Federal was bound to fail regardless of Constitutional merits, and it did. :mad:

7x57

wash
08-27-2009, 11:01 AM
I think these laws are pretty much just grandstanding, and if I remember correctly, a reaction to the grumbling about closing the "gun show loophole" after the the VT shooting.

So far nothing has happened with the so called loophole and I think the current political situation makes a change there unlikely.

I can't really see where they are trying to go with this, maybe NFA items without a tax stamp?

It all seems like a lot of noise to me.

Am I missing something?

Dr Rockso
08-27-2009, 11:16 AM
I think these laws are pretty much just grandstanding, and if I remember correctly, a reaction to the grumbling about closing the "gun show loophole" after the the VT shooting.

So far nothing has happened with the so called loophole and I think the current political situation makes a change there unlikely.

I can't really see where they are trying to go with this, maybe NFA items without a tax stamp?

It all seems like a lot of noise to me.

Am I missing something?

No, not really. NFA items without the tax stamp and dealer sales without NICS would be the apparent end goal. Sadly I don't think it's going to fly, suing a group that can print money is a tough fight.

curtisfong
08-27-2009, 11:20 AM
It is sad and sickening to say but quite frankly too many judges in this country outrightly hate the Constitution. They hate limited government, they hate absolute rules other than absolute rules saying they have absolute power, they hate individual liberty except in such capacity as it may be used to destroy society as we would have it, and they hate our history and our culture except the parts where they succeeded in forcing the destruction thereof. I wish there was another way of looking at it but it's simply inescapable fact. They simply would not do as they do for any other reason.

I disagree. They do it because the court system is set up to enable them to do it. It is an accelerating system. Legislation is always passed, rarely revoked. Case law builds, and each time it does the odds are that precedent grants government more power (see also: drunkards walk - one side is the wall, the other the street.. guess where, statistically, the drunkard ends up?). To make matters worse, just like legislation, bad case law is almost never repudiated. Look at Cruikshank. There are literally BILLIONS of court decisions equally bad (and often worse), whose precedent forms the foundation of our legal system. How often are they "erased" from the books, and their injustice retroactively mitigated? Judges are encouraged to never question past case law. It is a vaunted "feature" of our court system. How do you expect them to behave?

Governments will always accrue power and influence, much like economies inevitably form concentrations of wealth, regardless of their form. Some simply accelerate faster than others. Our constitution was designed to make it as slow as possible, but no constitution will guarantee it doesn't happen. Free markets are supposed to dispel concentration of wealth via Freidmanite "diffusion", but they almost always fail in the long term, because the concentrations of wealth take advantage of the corrupt and overly large government described above.

yellowfin
08-27-2009, 11:32 AM
I disagree. They do it because the court system is set up to enable them to do it. It is an accelerating system. Legislation is always passed, rarely revoked. Case law builds, and each time it does the odds are that precedent grants government more power (see also: drunkards walk - one side is the wall, the other the street.. guess where, statistically, the drunkard ends up?). To make matters worse, just like legislation, bad case law is almost never repudiated. Look at Cruikshank. There are literally BILLIONS of court decisions equally bad (and often worse), whose precedent forms the foundation of our legal system. How often are they "erased" from the books, and their injustice retroactively mitigated? Judges are encouraged to never question past case law. It is a vaunted "feature" of our court system. How do you expect them to behave? To do their damn jobs instead of this absurd nonsense. Their job is to uphold the Constitution, to be RESPONSIBLE in upholding THE LAW as is consistent with the precepts of liberty where the people's rights are infinite except as constrained by the bare minimum of law, and vice versa for the government. That means for them to put an axe to the legislation that gets outside the scope of limited government, a duty which they have horribly neglected for a century or more. They are the pruning men of this weed of excess government and they are failing miserably--if I did that poorly at any job I'd be fired in a day or less. If I have to call them "your honor" they had very well better earn the title by being something worth honoring. The majority of them to do nothing of the sort if they're going by Cruikshank, Wickard, and similar garbage. If their loyalty is to that instead of to us they are undeserving of their titles and should be kicked out of the judiciary entirely.

Governments will always accrue power and influence, much like economies inevitably form concentrations of wealth, regardless of their form. Some simply accelerate faster than others. Our constitution was designed to make it as slow as possible, but no constitution will guarantee it doesn't happen. Free markets are supposed to dispel concentration of wealth via Freidmanite "diffusion", but they almost always fail in the long term, because the concentrations of wealth interact with the government.Which is precisely why our government is supposed to keep as far removed from interacting with our wealth as possible and have as little say in its accumulation and distribution. We have the problem we have because we haven't slapped their hand enough to keep it out of the cookie jar, and we're about needing to have it amputated.

curtisfong
08-27-2009, 11:40 AM
If their loyalty is to that instead of to us they are undeserving of their titles and should be kicked out of the judiciary entirely.

I agree, but the constitution deliberately made it very difficult for the public at large (or any institution for that matter) to hold judges personally responsible for poor decisions. As such, they are the least "regulated" branch of our government. They were envisioned as the "slow and steady" branch, impervious to (short term) political whim and sociological fad.

At risk of going far off the plot again; as to your other (inarguable) point:

[O]ur government is supposed to keep as far removed from interacting with our wealth as possible and have as little say in its accumulation and distribution.

Yup. But that accumulation will always happen, and in the long run those in that accumulation will always have more control over what the government does than you do. Again, the system will degrade inevitably. Period. I strongly believe it is unavoidable. The question is only, can you make a system that degrades slow enough?

command_liner
08-27-2009, 12:17 PM
Here is one way it can be litigated.

The state purchases metal mined and refined within the state and contracts
within the state to have the metal turned into a full auto M16 lower. Then
the state buys the rest of the parts to make up a rifle and makes up full
auto rifle(s).

The rifles are given to state residents that are members of the local or
select militia, or just plain citizens subject to Federal militia call out. The
rifles are clearly identified as state militia rifles with markings. The state
passes laws saying transport or use of rifles is illegal except during an
event where the militia (or other group with rifles) is activated.

Compare and contrast to a) National Guard, b) state militia (like California's
and New York's) c) state police. Remember, the concept of consent
policing is much, much newer than the militia concept. If the state
police, which derive power from the citizens of the state, can own and
transport FA weapons, why can the people not do so? The people cannot
delegate any power they do not have (like the 'power' for the police
to own FA weapons).

No interstate commerce is effected. A fundamental, enumerated right
of the people should trump the abstract commerce clause argument.

Now apply the already-existing Federal definition of Militia to the citizens
of the state.