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

Greetings from Montana.

Don Peay recently sent out an email to a bunch of us with the Subject line of: “Moving Forward on Solutions for wolves.”

I agree with Don that we need to identify solutions, and put the necessary pieces in place to accomplish those solutions. But, what viable solution are out there?

I see three primary possible solutions to the “wolf problem.” All of these are problematic to one degree or another. And, there may be other viable solutions I’m not aware of. But here are the three current front-runners:

1. Don Peay (SFW) proposes changing the Endangered Species Act to some unknown extent with congressional action. This is a great idea. The problem is that it will be difficult to implement. Difficult? Given the current political climate in D.C., I’d say there’s a slim chance of getting meaningful ESA reform within the next year. The good news is that the political climate in D.C. may change significantly this November. Maybe. Any change in the D.C. political climate will improve the chances of getting ESA reform passed. How much improvement is unknown. Wait and see.

So, the idea of ESA reform is a super idea. Peay should forge ahead with that, with as much support as the rest of us can offer, notwithstanding the long-shot nature of the solution.

2. Bob Fanning (FOTNYEH) has long carried all of his eggs in the basket of an intended federal lawsuit to demonstrate that the entire wolf introduction program has been illegal since the beginning, and to get court orders mandating some sort of roll-back of the status quo. Since Bob has not obtained pro bono legal talent for this litigation, hired counsel would be needed at considerable expense – perhaps somewhere between $100,000 and $250,000.

A win in court by FOTNYEH would be another great solution. Of course, getting federal judges to grant relief in re wolves has not proven to be a highly successful undertaking so far, perhaps because the right arguments haven’t been made. Fanning does have some good arguments to make, and FOTNYEH has preserved standing and a long official record.. Personally, I like the idea of a federal lawsuit to force the feds to admit wrongdoing in re wolves. However, both because of the expense and because of a federal judiciary that seems overly tolerant of wolves, a litigation solution is also another long shot, and this solution could take a lot of time. As with idea #1, we should all support Fanning/FOTNYEH as much as we can in getting the wolf problem solved this way.

3. I play much more successfully in the state legislative arena. With MSSA, I’ve gotten 54 pro-gun and pro-hunting bills through the Montana Legislature, including Montana’s large predator management law and putting the right to hunt into the Montana Constitution. In the 2009 session of the Montana Legislature, Senator Joe Balyeat carried a very staunch anti-wolf bill that I’d written, SB 183 – see the bill text at:
http://data.opi.mt.gov/bills/2009/billhtml/SB0183.htm

SB 183 didn’t pass in 2009, both because it was so staunch and therefore a difficult sell to the Legislature, and because not enough people turned out to support the bill to make this difficult sell happen.

MSSA has not given up on using state legislative, 10th Amendment action to wrest wolves away from federal control. I think there’s a good chance we can get a refurbished version of SB 183 through the 2011 Montana Legislature. The pilot work done with our federal litigation to validate the Montana Firearms Freedom Act will certainly help with any state/fed contest in court over state/fed wolf control authority (both wolves and federal firearm regulations are exercise of congressional power to “regulate commerce … among the states.”)

So, MSSA will continue to press on the front of corrective action via preemptive state law. We’d be pleased to have whatever support may be offered by any other entities in achieving this goal.

There may well be other, viable ideas out there about “wolf solutions.” If so, I’d be glad to hear of them, and any good ones should be floated among all for consideration.

In the meantime, I don’t see any of the long-term players abandoning wolf solutions they’ve invested in for years (FOTNYEH – litigation; MSSA – legislative action; and SFW – ESA change). I do thoroughly support the idea that none of us should be obstructing any of the other efforts, and that all of us should contribute talent, experience and effort to other active entities as possible.

Finally, let me use this missive to acquaint readers with two other cards MSSA has in play in the wolf contest. For over a year I’ve been stirring the pot about wolf-transmitted diseases to help reframe wolves from Disney creatures into disease-ridden threats to human health. My purpose is to shift public and political sentiment and therefore political will concerning wolves.

And, MSSA is putting together a plan to hold a series of public hearings around Western Montana to take public testimony on the extent to which the Montana Department of Fish, Wildlife and Parks (FWP) has or has not met its constitutional and statutory obligation to foster huntable game herds and protect those herds from predators. Recordings of these hearings and summaries of the hearings will be provided to the Montana House Appropriations Committee when they are considering the FWP budget request in the 2011 session. No more FWP black hole for public wolf comment. WE will take the public comment and guarantee that it gets to the decision-makers – those who hold the purse strings.

In summary, there seem to be three viable, strategic ideas to address the wolf problem. All three are long shots, in one way or another. All three should be pursued by those who have the interest and expertise to do so. EVERYONE concerned about wolf impact should aid all three solutions to whatever extent they can. Any other viable ideas for solution should be promoted in this marketplace of ideas.

Best wishes,

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

===============================
(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

This is a field match – no shooting benches – for interested riflemen (and any interested ladies too, of course). This is more a chance to play at distance under organized rules than a highly competitive match – no prizes or trophies. A participant may enter Hunter Class with 41 steel targets downrange (mostly) between 100 and 300 yards, or Precision class with 65 targets between 300 and 1,000 yards. For more information about the match, including directions, targets, layout, rules, etc., see:
http://www.marbut.com/rifle

Participating in this match is a great way to check your rifle skills and gear, and to learn more about precision shooting.

We will run this match generally on the third Saturday of each month through October (possibly minus July and August because of fire potential).

Preregistration is encouraged if a person wishes to know that they have an assured slot in the match. If you definitely want to shoot, send me an email with your name, the town you’re from, and the Class you wish to shoot.

Also, I maintain a separate email list for people who wish to receive regular email announcements about these rifle matches. If you wish to be on that list, just reply to this email and ask me to put you on the rifle list.

Best wishes,

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

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