Attorney General Eric Holder has filed in Montana court for dismissal on the grounds that “lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted”.

In an effort to get MSSA v. Holder into a courtroom in order that declaratory judgment could be rendered, Judge Jeremiah C. Lynch granted dismissal on the grounds claimed by the defendant.

It is my understanding that this dismissal ruling will be appealed.

Tom Remington

The transcript for the 7/15 hearing on the U.S. Motion to Dismiss in MSSA v. Holder is now posted to the FirearmsFreedomAct.com Website at:
http://firearmsfreedomact.com/updates/MSSA%20-%20Transcript%20of%20Proceedings%20RE%20Hearing%20on%20Mx%27s%20-%20071510.pdf

or
( HERE)

If you wish to navigate to it, go to the FFA Website, click on Montana Lawsuit Updates on the right column, and from there scroll down to the section on the Motion to Dismiss.

Best wishes,

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

The good news is that when Congress gave the EPA the authority to regulate toxic materials in the environment, Congress specifically excepted lead ammunition from that EPA regulatory authority.

So, the EPA has reviewed the petition from the CBD and has rejected the request to regulate lead ammo, stating that it lacks authority to do so.

So, this round is over, for now. Much ado about nothing, this time.

Despite that this fight is now history, a less than scrupulous entity is trying to raise scare money off this episode, claiming that ammunition will be banned if you don’t send them money to engage a fight over lead. This entity also sent out a fundraising pitch a couple of months ago claiming that they desperately needed funds to support the Firearms Freedom Act effort. I don’t know if anyone sent them any money, but they sure never offered to assist us with the FFA fight. I suspect this entity doesn’t really exist, and the effort is just raising money for the guy who writes the fundraising letters.

If you have money to donate to the “cause,” I highly recommend that you donate to an entity that has a track record of actually doing something, such as MSSA, SAF, GOA or the NRA.

Best wishes,

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

We hold these matches on the third Saturday of each month during the shooting season (April through October) on several thousand acres of private ranchland near Potomac.

This is not a highly competitive match, since we don’t offer any prizes or trophies. Rather, it is an opportunity to play with rifles at distance, under safe rules and conditions, with targets provided, under uniform rules, and under field conditions.

Participants may enter Hunter Class to engage 41 steel targets downrange mostly between 100 and 300 yards. Or, shooters may enter Precision Class, to engage 65 steel targets downrange between 300 and 1,000 yards (one target array at over 1,300 yards). All shooting is done under field conditions (i.e., no shooting benches).

Shooters are squaded at match start into mixed squads of Hunter and Precision class shooters. Each squad moves to one of eight shooting position for each squad member to engage targets available from that shooting position. When all members of a squad complete that shooting position, the squad moves on to the next position. Eight shooting positions provide a full day of challenging rifle shooting.

Did you ever wonder if your riflery is up to snuff? This match provides a chance to find out how you do when compared with others of similar interest.

All the details about this match, and scores and pictures of previous matches, are at:
http://marbut.com/Rifle/

I maintain a separate email list for people who wish to be notified about rifle matches. If you wish to be on that Rifle email list, reply to this email and ask me to put you on the Rifle list. If you want today’s Rifle List announcement about the upcoming 9/18 rifle match, ask me for that too.

As a personal note, you all know that I believe passionately about the right to bear arms. I sincerely believe that the right to bear arms should be claimed and asserted especially by people who shoot well (and that people who assert the RKBA dang well ought be able to shoot adequately). The Potomac Rifle Matches are intended to allow you to be informed about whether or not you are competent at distance shooting with a rifle, and to associate you with other folks who can and will collaborate on upgrading your equipment and skills.

Finally, the Potomac Rifle Matches are the ONLY fundraiser our separate MSSA Political Committee has to raise much needed funds for MSSA to be a player in the upcoming elections. So, your match fees for this match go to help MSSA achieve its pro-gun political goals.

Come shoot the match with us. It’s really a lot of fun – a lot – really!

Best wishes,

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

MSSA is the primary political action organization for gun owners and hunters in Montana and has gotten 54 pro-gun and pro-hunting bills through the Montana Legislature in the past 25 years. (See MSSA Successes.) MSSA has been evaluating, grading and endorsing candidates, and publicizing those grades for 20 years as well. Unlike some groups that drift onto the scene only prior to elections to give cover to candidates weak on gun issues, MSSA is active in Montana throughout each year.

MSSA’s candidate evaluations are based on candidate questionnaires MSSA sends to all candidates, on voting records of incumbents, on information from public sources such as news stories, information shared from other pro-gun organizations, and on other information available about candidates. Some candidates lacking voting records do not return MSSA Candidate Questionnaires, a noncompliance seen by MSSA as indicating that a candidate either lacks interest in the right to bear arms or that the candidate is actually hostile to gun rights.

MSSA president Gary Marbut commented, “The right to bear arms and hunting are incredibly important to people in Montana, but sometimes it’s difficult for voters to know exactly where candidates actually stand on these issues. Some candidates with an absolute anti-gun voting record actually claim to be pro-gun. That’s why MSSA does in-depth research on candidates to make informed recommendations to voters. Voters need a credible source for accurate and distilled information about candidates.”

Marbut explained that MSSA is nonpartisan and grades and endorses candidates based on merit alone. MSSA has endorsed Republicans, Democrats, Independents and candidates from the Constitution Party. Most MSSA endorsements go to Republicans because the Republican Party fields candidates in most races and because Republicans are more likely to return candidate questionnaires and support the right to bear arms.

MSSA is a statewide organization and is affiliated with the National Rifle Association and associated with Gun Owners of America and Citizens Committee for the Right to Keep and Bear Arms.

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.
- 30 -

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