June 20, 2011
Several of you have expressed interest in Bond v. US, a decision handed down earlier this week by the U.S. Supreme Court.
You know our goal for MSSA v. Holder is to roll back federal power by asserting state sovereignty and breathing life back into the neglected Ninth and Tenth Amendments.
Bond v. US does this, in spades. Bond reads like our briefs in support of MSSA v. Holder. It is stunning! Even more encouraging, Bond was a UNANIMOUS Supreme Court decision.
This apparent change in direction and sympathy by the Supreme Court indicates a much improved chance that the Supreme Court will look favorably on MSSA v. Holder when it gets before the Court (still no guarantee). Much more likely.
I’ve long had confidence that the Montana Firearms Freedom Act and MSSA v. Holder to validate the principles of the MFFA were the right things to do, and because they were so right they have special power. Bond is now infecting others with this same confidence.
The Bond decision is not a long read, but it’s a good one. You can read it at:
June 17, 2011
Some of you may be wondering why today’s Washington Times editorial about the Montana Firearms Freedom Act and our lawsuit to validate that, MSSA v. Holder, is important.
The purpose for the Montana Firearms Freedom Act is to use it and firearms as the vehicle to roll back a half-century-plus of bad Commerce Clause judicial precedent, power the federal government has been allowed by the courts to use improperly to regulate everything and anything it chooses. Only the U.S. Supreme Court can effectively reverse this history of bad precedent, so we’re playing for our case, MSSA v. Holder, to be heard and decided positively by the USSC.
However, the USSC only accepts (grants certiorari for) 5% of the cases appealed to it. There are two features of a case that cause the USSC to be more inclined to accept a case on appeal: 1) that it is about a core constitutional issue (which our case certainly is), and 2) that there are differences between or among the various circuit courts of appeal concerning how they’ve ruled on the same issue.
This case is certainly about a core constitutional issue. However, there have not yet been any lawsuits parallel to ours in other federal circuits. Replacing that impetus in part are the many other states that have enacted or introduced Firearms Freedom Acts. Still, this case needs to catch the attention of three or more justices on the USSC to cause them to vote to accept the case.
For building awareness among USSC justices that this case is percolating towards them and for sparking their interest, this Washington-local editorial is invaluable, as will be a front page story about the case due to soon appear in the Wall Street Journal. You can just bet that the USSC justices and their law clerks read the Washington Times and the Wall Street Journal. Having such seeds planted before the case is appealed to the USSC may well make the difference, causing MSSA v. Holder to be one of the few cases the USSC chooses to accept and decide.
June 17, 2011
The last briefs of those supporting our side of MSSA v. Holder have been filed with the Ninth Circuit Court of Appeals. Those include the amici Goldwater Institute (joined by the CATO Institute), Gun Owners Foundation (joined by the U.S. Justice Foundation), and the State of Montana. These additional briefs should soon be posted to and available to peruse at:
Next, the U.S. DoJ (Holder) will submit its reply brief, rebutting arguments made in Appellants’ (MSSA, SAF and myself) Principle Brief, and the briefs of various supporting amici (friends of us or of the Court). Then, any amici may submit briefs supporting the U.S. position (the Brady Center for Whatever submitted an opposing brief at the District Court rehashing their standard, anti-gun rhetoric). Then, Appellants (us again) will have the opportunity to submit a reply brief, rebutting arguments made by the U.S.
The case on appeal will then be assigned to a three-judge panel of the Ninth Circuit. The Ninth is the busiest federal appeals court in the U.S., and simply doesn’t have the time or resources to hear cases en banc (full court). Oral argument may or may not be requested by the Court. The decision of this three-judge panel will carry the full weight of a Ninth Circuit decision, although a motion for en banc review of the three-judge panel decision would then be ripe and might be a possibility down the road.
Remember, the purpose of MSSA v. Holder is to validate the principles of the Montana Firearms Freedom Act, and by doing so to BOTH breathe effective life back into the Ninth and Tenth Amendments AND to roll back federal power claimed under the guise of regulating “commerce” “among the several states” (the Commerce Clause of the U.S. Constitution) – generally to set precedent for states’ rights and state sovereignty.
What can the Ninth Circuit do with MSSA v. Holder? There are many options. They can remand back to the District Court for an actual trial on the merits of the case (the case was dismissed by the District Court prior to trial, which dismissal is now the subject of the appeal to the Ninth). They can uphold the dismissal, upon which we would have the alternatives of moving for an en banc review or of appealing to the U.S. Supreme Court (where we actually need to get with this lawsuit). The Ninth could give us a win on merit while upholding our standing and jurisdiction (unlikely, but in which the U.S. would probably appeal to the USSC). The Ninth could also give us a partial win and partial loss, while also recognizing that we have standing and jurisdiction. While there is absolutely no way to actually predict what the Ninth will do with MSSA v. Holder, the two most likely options are probably to either uphold the District Court’s dismissal, or to reverse the District Court’s dismissal and remand the case to the District Court for actual trial.
Regardless, it’s a fascinating exercise in liberty, and will (has already) ratchet up the national dialog about the import of the Tenth Amendment.
Stay tuned … “May you live in interesting times.” (Old Chinese curse.)
June 10, 2011
Briefs are getting filed in MSSA v. Holder before the Ninth Circuit Court of Appeals. This is MSSA’s lawsuit to validate the principles of the Montana Firearms Freedom Act. this a challenge to federal power asserted under the Commerce Clause of the U.S. Constitution to regulate every human (and non-human) activity under the guise of regulating “commerce … among the several states.”
As more briefs become available, we will continue to post them at:
Appellants (those of us appealing the adverse decision of the federal District Court) include MSSA, the Second Amendment Foundation, and myself as the sole individual plaintiff.
Available so far are Appellants’ Principal Brief, the brief of the Center for Constitutional Jurisprudence and the brief of the Pacific Legal Foundation.
Expected by the deadline next Monday are the briefs of the Goldwater Institute (now including CATO), the State of Utah (also representing several other states), the State of Montana (now backed down from Intervenor status to amicus status), Montana Legislators, Gun Owner’s Foundation (Gun Owners of America [also with U.S. Justice's Gary Kreep] ), the Weapons Collectors Society of Montana and perhaps even some of the anti-gun crowd such as the Brady Center For The Idiotic Idea That Guns Must Somehow Cause Violence.
Stay tuned. We’ll post more briefs to the Website as they become available.
May 11, 2011
An MSSA e-list member asked me to clarify where and how what sort of carry is legal in Montana, since the Governor vetoed HB 271.
If you want to know about all the gun laws in Montana, get my book, Gun Laws of Montana.
First, the definition of “concealed” for concealed weapons in Montana is not a dictionary definition as in hidden from view. Rather, the definition is specified in law as “wholly or partially covered by clothing or wearing apparel.” Thus, under the seat of your car (in Montana – different in other states), in the console between the seats, in the glove box, in a backpack, in a briefcase, and even in a woman’s purse are not considered to be “concealed” for the purpose of Montana concealed weapon law.
Under current law you may carry openly most places, regardless of city limits. You may carry concealed outside city limits without a permit. You may carry concealed inside city limits without a permit in your home or place of business (presumably with your employer’s permission). You may also carry concealed inside city limits without a permit if you are a person “who is lawfully engaged in hunting, fishing, trapping, camping, hiking, backpacking, farming, ranching, or other outdoor activity in which weapons are often carried for recreation or protection;”, says current law.
So, if you are inside city limits, outside your home or place of business, and not doing one of the list of outdoor things exempted in the law, and have a firearm “wholly or partially covered by clothing or wearing apparel,” you must have a concealed weapon permit to be legal.
April 30, 2011
There are three MSSA bills on Governor Brian Schweitzer’s desk. The Governor needs messages asking him to sign these bills.
You can phone messages to the Governor’s office at 444-3111, or you can email the Governor at:
I doubt that the Governor’s staff are actually reading the text of emails, so be sure to put what you want in the Subject line, such as “Please sign HB XX.”
Here are the bills.
HB 159, to prevent FWP from regulating ammunition. We asked for this bill because of FWP’s ill-conceived proposal last year to ban lead shot for upland game bird hunting. HB 159 would reserve future such decisions to the Legislature. If FWP had a history of responsible conduct, HB 159 wouldn’t be necessary.
HB 271, permitless carry. There’s been no problem with permitless concealed carry in 99.4% of Montana (outside cities) for two decades, and with permitless open carry in and out of cities forever. When the Governor signed HB 228 (our Self Defense bill) in 2009, he commented that he was disappointed that the permitless carry feature had not stayed in that bill. If he liked permitless carry then, he should like it now.
SB 136, born in Montana, hunt in Montana. The conference committee, final version of SB 136 allows a nonresident to come home to hunt with family for FOUR times the cost of a resident license, but without going through the chancy license drawing process.
April 28, 2011
MSSA’s permitless carry bill, HB 271, has passed the Senate with a vote of 30-20. More properly said, the Senate has concurred in the conference committee report on HB 271 by a vote of 30-20.
The conference committee version only affects concealed carry INSIDE the city limits of an incorporated city or town. Concealed carry outside city limits (99.4% of Montana) has not required a permit since 1991. Open carry inside city limits has never required a permit in Montana.
The CC version of HB 271 allows a person to carry concealed (“wholly or partially covered by clothing or wearing apparel”) inside city limits if that person is eligible to possess a handgun under state or federal law.
The Senate must still approve adoption of the CC report with a Third Reading vote, either later today or tomorrow (last day of the session). I expect the vote for HB 271 to hold for Third Reading, but there are no guarantees. You can bet opponents will be trying for a Hail Mary effort to turn five Senate votes against HB 271 on Third Reading.
Once the Senate approves HB 271 on Third Reading, it will go to the Governor for his signature. Governor Schweitzer has opined before that he likes the concept, but who knows if that attitude continues.
In the 30-20 vote, all Republicans voted for HB 271, plus Democrats Gillan and Hamlett. If you can send messages to the Senate, you should thank those senators who supported HB 271 and urge them to continue their support on Third Reading.
April 28, 2011
MSSA’s bill to repeal the archaic firearm suppressor law criminalizing possession of a suppressor in the “field or forest,” HB 174, was sprung from the Senate Judiciary Committee today on a “blast” motion, a motion to override an adverse committee report. Senator Chas Vincent made and defended the motion (thanks Chas!!)
All Democrats voted against the motion except for Senator Blewett (for), and all Republicans voted for the motion except for Senators Moore, Ripley and Tutvedt (they were against). The final vote was 26-24 – a squeaker.
HB 174 will be up for Second Reading maybe this afternoon (Wednesday) at 4:30, or maybe tomorrow (Thursday) morning. We need a landslide of messages to senators to support HB 174, but ESPECIALLY senators Moore, Ripley and Tutvedt. I suspect their problem is complaints from landowners regurgitating the FWP misinformation that HB 174 is the “poachers bill.”
There has never been a crime committed in the U.S. with a lawfully-owned suppressor, I’m told, since registration was first required in 1968. Supposing that HB 174 would turn lawful suppressor owners into poachers is as irrational as supposing the owner of a new Cadillac would use the Cadillac as the getaway car in a quick-stop robbery. Irrational!
Senator Moore is from Miles City and has an email of email@example.com
Senator Tutbedt is from Kalispell and has an email of firstname.lastname@example.org
Senator Ripley is from Wolf Creek and has no email
Voice messages may be phoned to 444-4800
Online messages may be sent from:
We need LOTS of messages to senators SOONEST asking for support of HB 174.
April 18, 2011
The Legislature will adjourn this coming week. We have several bills in some sort of limbo that need a final push. Here’s the wrap-up.
HB 271, permitless carry. Senate concurrence with the conference committee report will come before the Senate on Second Reading tomorrow (Monday). See my previous email about HB 271. All senators need to be urged to vote to accept the conference committee report on HB 271.
SB 371, ammunition component manufacture. SB 371 was amended in the House to restore two incentives for manufacturers that had been stripped in the Senate upon the motion of Senator Bob Lake and with the active support of Senator Bruce Tutvedt. When SB 371 came back to the Senate for acceptance of House amendments, the motion to accept failed by a vote of 20-30. Senators Lake, Tutvedt and Ryan Zinke spoke actively against accepting House amendments. MSSA grades and endorses candidates based on their answers to the questions on MSSA’s Candidate Questionnaire. On our 2010 CQ, Senators Bob Lake, Alan Olson, Chas Vincent and Ron Arthun all promised to support this bill, yet voted against in the 20-30 Senate vote to reject House amendments. See my previous email about an intended motion to reconsider the 20-30 vote tomorrow (Monday). The senators listed there need to be barraged with messages to support a motion to reconsider and accept House amendments to SB 371.
SB 414, wolf control. Up for Second Reading in the House tomorrow (Monday). The 68-32 previous reconsideration vote should hold on this, but then it will go to the Senate for acceptance of House amendments. That will be a hard sell in the Senate because of the recent action by Congress to delist wolves. The problem is that the congressional action doesn’t help us much because it requires 1) management for far more wolves than Montana can afford, and 2) because it relies on the existing Montana Wolf Management Plan which was written to satisfy the wolf game plan of the feds. Stay tuned.
HB 174, suppressors. This bill to repeal the archaic fish and game law that makes it illegal to possess a suppressor in the “field or forest” is stuck in the Senate Judiciary Committee, being held up by four Republicans, Senators Rowlie Hutton (Havre), Jeff Essman (Billings), Jim Peterson (Buffalo) and Terry Murphy (Cardwell). These senators oppose because of pressure from ranchers who call this the “poacher bill.” Ranchers oppose because FWP told them that if the bill passes it will open the floodgates of private property poaching and FWP will not be able to save them from this disaster. After they learned more about what suppressors don’t do, the Montana Stockgrowers Association notified Committee members that they no longer oppose the bill. So now the only opposition is from ranchers who were stirred up with misinformation by FWP. These four senators need to be barraged with requests to approve HB 174.
That’s it folks. We have about three more days to get these bills passed. Thanks loads for your help.
April 13, 2011
For some of you, the BOLD of legislators possibly susceptible to changing their votes on SB 414 did not come through.
I have reworked the list of legislators below to include only those who voted against SB 414 yesterday and who MIGHT be susceptible to changing their vote today.
Dear MSSA Friends,
I missed that yesterday (Tuesday) the House committee report on our wolf control bill, SB 414 went down on a vote of 49-50.
THERE IS ONE CHANCE FOR RECOVERY. Today, some member of the House who voted against SB 414 yesterday can move to reconsider and change his or her vote- today only!
All of you who get this early email (Wednesday) need to get messages to House members THIS MORNING asking them to reconsider and SUPPORT SB 414.
ONLY people who voted AGAINST SB 414 yesterday can move to reconsider and change their vote, and ONLY TODAY. The House floor session convenes at 1 PM this afternoon.
I’ll bold some of the legislators on the list below who I think are possible candidates to switch and reconsider. They will have been told that if SB 414 passes it will achieve the opposite of what is intended and will NOT allow Montana management of wolves – that it will interfere with the promised action in Congress. What is pending in Congress will ONLY maintain wolves at currently too-high numbers, so it will not amount to much relief, if any. Tell Representatives that SB 414 is Montana’s last chance to save our game herds.
Gary Marbut, president
Montana Shooting Sports Association
author, Gun Laws of Montana
YEAS NAYS EXCUSED ABSENT
N Ankney, Duane
N Flynn, KellyN
N MacLaren, Gary
N Greef, Edward
N McNutt, Walter
N Mehlhoff, Robert (Bob)
N Milburn, Mike
N Miller, Mike
N Connell, Pat
N Peterson, Ken
N Klock, Harry
N Fitzpatrick, Steve
N Yates, Max