MISSOULA – A course entitled “Gun Safety for Personal Protection and Concealed Weapon Permits” will be hosted in Missoula by the Montana Shooting Sports Association and taught by Gary Marbut on Sunday, August 15th. 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 concealed weapon permits under Montana law. The class will begin at 9:00 AM, and finish about 4:00 PM. Class size is limited to the first 20 registrants and preregistration and pre-class study are required. Tuition is $90 per student. Students should (not must) be 16 years or older. For further information or to register, call 549-1252 or email gary@marbut.com.
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Note: For anyone who wishes to register by email, I need name, mail address and a contact phone number. I will reply with further instructions.

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

Oral argument was held today on the U.S. Motion to Dismiss MSSA v. Holder, our lawsuit to validate the principles of the Montana Firearms Freedom Act.

The hearing took place in the U.S. Courthouse at the corner of Broadway and Pattee in Missoula, beginning at 9:00 AM, and finished shortly after 11:00 AM.

The U.S. moved to dismiss the lawsuit (standard, boilerplate move) based on standing, jurisdiction, and merit.

Concerning standing, the U.S. argues that I, as the sole individual plaintiff, don’t face imminent injury to allow me to obtain judicial relief because there is no certainty that the BATFE will arrest me and the U.S. will prosecute me if I forge ahead with plans to make MFFA items without federal permission (licensure).

About jurisdiction, the feds say the U.S. is sovereign and cannot be sued, except under the provisions of the Administrative Procedures Act which allows suit to clarify rights and responsibilities only after “final agency action.” The U.S. says that the BATFE letter to me advising me that I will be prosecuted if I make any MFFA items for resale is not final agency action, although the U.S. cannot say what other position the BATFE could take to grant me any relief beyond what it already has done (threaten me with prosecution if I make MFFA-protected items).

About merit, the U.S. says that precedent is against the MFFA concept, our side is bound to lose, so the court might as well just dismiss the lawsuit now.

In this hearing, the U.S. was represented by Jessica Leinwand, a young Department of Justice attorney from D.C. Jessica seemed bright, competent, well prepared, but only knowledgeable in a bookish way. That is, she seemed quick with and knowledgeable about case citations that supported her side of the argument, but she did not mount or support any philosophically-based arguments. Although Jessica’s arguments seemed to be competently mounted, they also seemed to lack any touch of passion or personal vestment. One may suppose it’s difficult to wax passionate about arguing the federal government position.

For a young attorney with limited experience to travel half way across the country to a strange place and stand in opposition to a half-dozen other experienced attorneys must be a nervous-making, intimidating experience. However nervous, Jessica did not let it show and did a good job of focusing on business at hand.

There were a whole string of attorneys representing our side of this contest. Lead attorney for Plaintiffs (MSSA, SAF, and me) was Quentin Rhoades, a partner with the Missoula firm of Sullivan, Tabaracci and Rhoades. Quentin has been lead counsel for Plaintiffs on this case since the inception, and has done other litigation for MSSA. Quentin was accompanied by ST&R attorney Rob Erickson, although Rob did not argue.

Plaintiffs had arranged in advance to give some of our argument time to two other attorneys representing amici parties to the lawsuit. One is Nick Dranias of the Goldwater Institute in Arizona. Montana federal court rules require that attorneys from out of state must associate with and be “sponsored by” a Montana attorney in order to appear in federal court in Montana. Nick was sponsored by attorney Tim Fox of Helena, recent candidate for Montana Attorney General.

The other amicus to whom Plaintiffs ceded some argument time was Virginian attorney Herb Titus, who represents Gun Owners of America and Gun Owners Foundation. Herb was sponsored in Montana by attorney Greg Jackson of Helena.

The Attorney General of Montana has intervened in this lawsuit to defend the constitutionality of a statute enacted by the Montana Legislature and was given oral argument time separate from that given to Plaintiffs and Defendant U.S. The Montana AG was represented by attorney Chris Tweeten from the Montana Department of Justice in Helena.

The AG was persuaded to cede some of his allocated oral argument time to Professor Jeff Renz of the U. of M. School of Law, who argued for another amicus group of Montana legislators.

Forward of the bar in the courtroom were the judge – Magistrate Judge Jeremiah Lynch, the court secretary, the judge’s two law clerks, Quentin, me, Jessica (and Jessica’s unnamed assistant), Tim, Nick, Greg, Herb, Chris and Jeff. There were about 40 people in the audience, including MSSA Board Member and State Representative Cary Smith from Billings, State Senator Jim Shockley from Victor, Idaho Representative Dick Harwood who sponsored the Idaho Firearms Freedom Act, a delegate from Congressman Denny Rehberg’s office and interesting others.

The order of presentation was this:

Magistrate Lynch introduced the case.

Quentin explained time ceded to Nick and Herb and introduced the Montana sponsors for each who introduced Nick and Herb to the court.

Chris introduced himself and introduced Jeff.

Then the hearing began.

Jessica went first for 35 minutes (all times approximate), and reserved 15 minutes for rebuttal at the end.

Quentin went next for 20 minutes, then Nick for 10 minutes, and Herb for another 10 minutes.

Following those, Chris argued for 15 minutes, and finally Jeff for 10 minutes.

Last, Jessica used her reserved 15 minutes for rebuttal/closing.

I will not attempt to cover all of the arguments made or questions asked by Magistrate Lynch. There was not a lot of new material that was not already in briefs provided by various parties, all of which is available from the FFA Website.

Although all attorneys involved (including Jessica) did a great job, Jeff carved out for himself the role of a cleanup batter. He used his final ten minutes primarily to address issues left in play by questions from Magistrate Lynch. In jumping into that cleanup role, I thought Jeff did an especially helpful job.

I have asked ALL others present (including audience members) to offer personal comment about the hearing today, and I will post those comments Online when available and send you a link. This location will also offer digital pics of all the folks involved (outside the Courthouse).

I will say that I thought we had a powerful presentation by those on our side (i.e., everyone but Jessica). Our net argument was that the lawsuit should not be dismissed, but should go to trial for development of relevant facts. There are far too many legal issues and subtleties at work to attempt to brief you on all of them here. However, if an entirely neutral judge were presented with all the briefs submitted and arguments heard today, I believe he’d let the matter go to trial. Of course, I’m not prejudiced.

Whether or not that will actually happen remains to be seen. Quentin thinks we may have a decision within two weeks, but I don’t think anyone really knows for sure.

No matter, the game is now engaged – we are on the field. We are in play with MSSA v. Holder and at the wave front of a tsunami of interest in states rights sweeping the U.S.

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

I am told that the courtroom has limited seating, and it is unknown if there will be overflow seating in the courthouse with closed-circuit TV (as is sometimes done with hearings). I am also told that security screening at building entrance will be much like that at commercial aircraft boarding at airports.

It should be interesting. See you there if you care to come.

FYI, just in case no overflow seating gets arranged by the feds and a bunch of interested folks end up standing on the sidewalks outside the courthouse, you might want to bring some signs having to do with the Firearms Freedom Act, the feds, or freedom in general. Even if you can’t get inside, your presence will show solidarity.

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

You should remember that MSSA v. Holder is our lawsuit to validate the principles of the Montana Firearms Freedom Act.

We don’t know yet which courtroom in the federal courthouse in Missoula will be used. Whatever one is used it would be great for the spectator area to be fully occupied. It should be an interesting day.

Several folks have asked if cameras or video recorders are allowed. I’m told that no recording devices are allowed in a federal courtroom (at least in Missoula).

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

The first brief is from the U.S. (Department of Justice on behalf of Defendant U.S. Attorney General Eric Holder), and is their reply to our brief opposing the MtD.

The second is an amicus brief from the Brady Center (taking the U.S., gun control, side of course).

Both of these briefs are now posted and may be viewed at:
http://firearmsfreedomact.com/montana-lawsuit-updates/

Today’s Lee Bureau story about this may be viewed at:
http://billingsgazette.com/news/state-and-regional/montana/article_85c3cf64-62b7-11df-b8df-001cc4c002e0.html

We will have 14 days to reply to the brief of the Brady Center. Then we will learn if the judge in the case wants oral arguments concerning the Motion to Dismiss. If there is no oral argument, or after that if there is, the court will rule on the U.S. Motion to Dismiss, likely within about 60 days. If the MtD is denied, the lawsuit will go to trial, currently scheduled for December (including plenty of pre-trial activity). If the MtD is granted, it will go to the Ninth Circuit Court of Appeals on appeal.

Stay tuned …

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

Jim Beers, former Chief of National Wildlife Refuge Operations, will address the lies, deceit and fraud employed by the U.S. Fish and Wildlife Service, the state wildlife agencies in Montana and Idaho and environmental groups to illegally introduce Canadian wolves where they were never native, nor endangered.

His presentation begins at 1:00 p.m. on Sunday, May 16, 2010, at the Gran Tree Inn in Bozeman, Montana. Admission is free.

”This is the first time I have spoken exclusively on this subject of all the violations of law committed by government bureaucrats, non-governmental organizations, Washington lobbyists and political appointees who introduced and spread wolves in the West,” states Jim Beers, who worked in various capacities with USFWS for 32 years.

He is probably best known for his role in exposing the USFWS theft of up to $60 million from funds collected as excise taxes on sporting firearms, ammunition and fishing tackle. This money is to be distributed back to state wildlife agencies for habitat improvement and to provide greater outdoor opportunities for sportsmen. (In 2009, the amount divided nationwide totaled more than $700 million.) The millions embezzled by USFWS went into a slush fund used for agency appointee bonuses and for other unauthorized purposes. Beers claims one of those purposes was to provide illegal funding for reintroducing wolves into Yellowstone – funding Congress refused to provide.

Other wolf introduction issues he will address include the improper and illegal manner in which federal and state wildlife agencies justified wolf introduction, the false claims made by these agencies and how the legal intervention by environmental organizations, such as the Defenders of Wildlife, is very much to blame for the dramatic drop in elk, deer and other big game numbers.

There will be an hour long question and comment period following the presentation, followed by an hour long reception.

This presentation is wholly sponsored by Friends of the Northern Yellowstone Elk Herd. Its purpose is to unify those who have been harmed by the illegal forced introduction of wolves by federal and state wildlife agencies and to fund a lawsuit to put an end to the destruction wolves are dealing our wildlife resources.

Every sportsman who hunts, or anyone who just enjoys watching wildlife, needs to attend this presentation.

MSSA has recommended candidates in contested races in seven Democratic and 24 Republican primaries, but only in those races where information on significant 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 54 pro-gun and pro-hunting measures through the Montana Legislature in the past 25 years.

The candidates endorsed for the June, 2010 Primary Election are:

SD01, Chas Vincent (R)
SD04, Jon Sonju (R)
SD20, Raymond Roerick
SD31, Pat Wagman (R)
SD35, Art Wittich (R)
SD43, Wayne Ternes (D)
SD44, Bob Lake (R)
HD02, Matt Charlton
HD03, Jerry O’Neil (R)
HD04, Derek Skees (R)
HD08, Carl Glimm (R)
HD11, Janna Taylor (R)
HD12, John Swenson (R)
HD20, Steve Fitzpatrick (R)
HD20, Lee Anne Gills (D)
HD21, Dale Crosby (D)
HD25, Rod Lukasik (D)
HD25, Rick Tryon (R)
HD31, Frank Smith (D)
HD33, Phillip DeFelice (D)
HD38, Alan Doane (R)
HD39, Lee Randall (R)
HD47, James Knox (R)
HD57, Dan Kennedy (R)
HD61, Joel Boniek (R)
HD68, Terry Bannan (R)
HD71, Bob Wagner (R)
HD78, Bowen Greenwood (R)
HD84, Mike Miller (R)
HD86, Kathy Swanson (D)
HD87, Jeff Burrows (R)

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

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Information: contact MSSA president Gary Marbut at 549-1252 or at mssa@mtssa.org

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(On MSSA letterhead)

May 4, 2010

Name
Address
City, State Zip

Dear Name,

I am pleased to inform you that you are endorsed by the Montana Shooting Sports Association (MSSA) in your bid to be nominated as the legislative candidate for «USER01» in the June, 2010 «USER02» Primary Election.

MSSA is the primary organization asserting the right to keep and bear arms and the rights and prerogatives of hunters in Montana. You will be aware that we routinely obtain passage of pro-gun and pro-hunting legislation by the Legislature.

You have been endorsed by MSSA because you are clearly the best candidate in your Primary Election contest to represent gun owners and hunters. We highly recommend you to the voters of your election district in the Primary Election. We think the right to keep and bear arms and hunting are important. Those voters in Montana who agree with us about this important right should know that you will certainly be the best of the Primary Election candidates in your party to represent our shared convictions.

We believe it is important to elect people to public office in Montana who believe in the rights reserved to the people by our constitutions, state and federal, and especially our right to keep and bear arms, and who believe in our cherished heritage and culture of hunting game animals.

We will review this race separately for potential endorsements for the November General Election.

We wish you the best for your Primary Election challenge.

Sincerely yours,

Gary Marbut
President

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

April 28, 2010

Director Maurier

PO Box 200701

Helena, MT 59620

RE: Emergency Closure for Elk and Deer hunting district 250

Dear Director Maurier,

My name is Scott Boulanger and I am an Outfitter from Darby that operates my Outfitting business in hunting district 250. The West Fork of the Bitterroot.

After reviewing the 2009/2010 post season flight surveys, and the wolf population reports, and the lion harvest results, and the 2009 Darby check station reports I am requesting you to issue an EMERGENCY CLOSURE for the 2010 Elk and Deer hunting season. (Copies of reports attached)

I am requesting the EMERGENCY CLOSURE for the following reasons………..

1. The elk population objective for unit 250 adopted by the Bitterroot Elk working group was approved at 2000 head. For the last 2 years we have been hovering around 764. That means we are 62% UNDER the objective! The TOTAL elk population for the entire Bitterroot Valley continues to decline and is down 21% in the past 4 years.

2. The adopted statewide elk management plan calls for a minimum of 10 bulls her hundred cows. Our 2010 flight surveys show that there are only 4 bulls per hundred cows. In fact in the entire hunting district there were only 6 adult bulls observed and 20 yearling bulls observed. That means we are going to have most of our cows being bred by immature bulls if they get bred at all.

3. The current data supplied by FWP wolf specialist Liz Bradley indicates that there are at least 52 wolves per thousand elk in unit 250. It is one of the highest wolf densities in the State. With that amount of wolves there are simply not enough elk and deer left for sport hunting.

4. The 2009 Mule deer survey indicate that there are only 3 bucks per hundred does in hunting district 250. FWP recognizes this fact by instituting a limited permit system but then turned around and issued 125 permits! Even more confusing to me is that in unit 270 across the river we have observed 34 bucks per hundred does yet we only issue 45 permits in that unit?

5. After reviewing the 2009 harvest results of the special limited Mountain Lion permits it reveals that the FWP only reached 40% of the desired harvest of Lions AGAIN. In fact the year before in 2008 there was only 1 lion harvested in the entire unit 250. Also in the previous 9 years the FWP protected ALL female Lions from being harvested. From 1999 through 2008 there was not one single female lion harvested. Again I feel like the abundance of predators has eliminated our prey base of mule deer and elk.

6. Also revealed in the flight surveys is the fact that we are having a serious problem with our elk calf recruitment. The 2010 surveys show that we have a ratio of 11 calves per hundred cows. The experts tell us it used to take 23-25 calves per hundred cows to MAINTAIN herd populations. That was BEFORE the introduction of the Gray Wolf. Modern Biologist tells us it now takes a minimum of 30 calves per hundred cows to maintain the herd populations.

7. Bears. Mike Thompson FWP Biologist told the Outfitters at the USFS meeting that the season structure we have had for bears over the last 20 years was designed to GROW the Bear population. Well, I believe that the plan worked and that the Bears did increase in population and they are also having a negative effect on the ungulate populations. FWP recognizes this to be true and this year implemented a season that lasts 2 weeks longer than in the past. It is my hope that we will harvest more bears this year as it is proven in multiple western states studies that Bears prey hard on elk calves during the first 2 weeks of an elk calves life.

8. Darby Check Station Results. In the 2009 the whitetail deer and mule deer harvest are down by nearly half. Hunters’ numbers have declined 17% with hunters not seeing the game they used to see with many negative comments about the wolves and more lion sightings while deer hunting.

I am troubled and saddened to have to make such a drastic request but I truly feel that this is in the best interest of the wildlife. I believe it is the charge of the FWP to be responsive and responsible public resource managers and this un-precedented action is required at this point in time. We simply cannot continue to keep things on the status quo and expect anything to change. It’s like doing the same thing over and over and expecting different results. I am on record with the elk working group all the way back in 2005 when we enjoyed a record population of elk, warning of what was coming if we did not do anything to control our predators and limit cow harvest. Almost every Bitterroot hunting district is under management objective and the same is true with the Bull to cow ratios. I understand that a 3 year study was approved but I also understand we are about $180,000 short of funding in the first year alone. We don’t need a study, we need predator control. I feel like it’s about time we put our personal and political agendas aside and start looking out for the wildlife!

Feel free to contact me anytime if you have any questions or would like to discuss this matter in detail.

Respectfully submitted.

Scott D. Boulanger

Owner

Enclosures

CC: Commissioners, Director, CAC Region 2, Elk working group, USFS, MOGA, RMEF, SFW,

The first hurdle in this lawsuit is the pending U.S. Motion to Dismiss. The feds argue that the lawsuit should be dismissed immediately – should not go to trial – because Plaintiffs lack “standing,” because the U.S. is sovereign and may not be sued (“jurisdiction”), and because of merit (they say we’ll lose so why waste time discussing the issue).

This Motion to Dismiss was expected, and is pretty standard, boilerplate legal maneuvering. Still, we must respond and respond well. If we lose on the Motion to Dismiss, we will have to appeal that dismissal to the Ninth Circuit Court of Appeals. We’d rather move on directly to trial in the lawsuit on the merits of the MFFA arguments than get sidetracked with an appeal over dismissal.

Judge Molloy, in whose court this is lodged, is thought by attorneys to be fair and interested in this issue, and has a reputation for being something of a scholar. Nevertheless, there is some conjecture that he might favor the Motion to Dismiss just to get this hot potato of national consequence out of his lap. I disagree with that conjecture but I have no real evidence to support my disagreement. I think Judge Molloy is not afraid of controversy or work. And, this case may present a more interesting intellectual challenge than other cases before his court.

So, it is necessary for our side to mount a full court press on all the issues the U.S. has raised in their Motion to Dismiss.

To that end, it is VERY helpful that so many other states have climbed onto this FFA bandwagon, a phenomenon called “emerging consensus” by the courts. Six other states have enacted clones of the MFFA and 20 others have introduced FFA bills.

Plus, there are a number of amici (plural of “amicus curiae” – friends of the court) parties that have joined the fray. Collectively, they bring a lot of weight to our side.

Today is the deadline for Plaintiffs’ brief in response to the federal Motion to Dismiss. Today is also the deadline for most amici to have submitted their petitions to join the suit and for amici’s briefs in opposition to the Motion to Dismiss. Today will be a day of much activity and filing of documents with the federal court.

The entities that have already petitioned for entry as amici or are cueing up to do so include:

The Goldwater Institute of Arizona
The Attorney General of Utah (representing Utah and the AGs of some other states)
The Weapons Collectors Society of Montana (thanks for the support WCSM)
The Center for Constitutional Jurisprudence (representing legislators who’ve sponsored FFA bills in other states)
The Paragon Foundation of New Mexico
Gun Owners Foundation (Gun Owners of America)
Montana Legislators (who supported the MFFA in the Montana Legislature)

Each of the amici will address different and useful aspects of the law relating to the case.

You might guess that I’ve been working behind the scenes for months to ravel all of this into a concerted and comprehensive effort – a great cat-herding exercise.

We don’t know how quickly Judge Molloy will rule on the Motion to Dismiss, but it will probably take a month or two.

Meanwhile, MSSA volunteer Webmaster Michael is doing a great job of posting documents as they become available to the “Montana Lawsuit Updates” page of our Website at:
http://www.FirearmsFreedomAct.com

Check there if you want to read any of the briefs as they are submitted and posted.

Stay tuned, campers. It should be an interesting exercise in freedom.

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

One argument that has been simmering in the background but clearly raised in the text of the MFFA is what effect the Ninth Amendment may have on thwarting federal laws contrary to the MFFA.

While attorneys involved have been doing heavy thinking about the other important issues, I decided to turn my hand to researching, thinking about and writing about the MFFA/Ninth Amendment relationship. I seek to frame a Ninth Amendment argument, the essence of which could be applied in our litigation, MSSA v. Holder.

In case you may be interested, I have just published my writing about the MFFA and the Ninth Amendment at:
http://www.progunleaders.org/NinthAmendment/

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com