Appeals Court Tosses Montana’s Firearms Freedom Act

Posted August 26, 2013 in gun rights by

Small boy with a rifle


A federal appeals court Friday upheld a ruling against a Montana law that purports to exempt guns that are manufactured and traded within the state from federal firearm regulations.

The Montana Firearms Freedom Act said that guns that never leave state borders need not be regulated under federal law, for purposes such as background checks or requirements that dealers be federally licensed. 

Montana enacted the law in 2009, and similar statutes have since been passed in nine other states.

The law’s proponents have vowed to appeal to the U.S. Supreme Court, claiming that the federal government’s use of the Commerce Clause to regulate trade within a state is a gross overreach of its constitutional authority.

The plaintiff was a man named Gary Marbut, president of the Montana Shooting Sports Association, who wanted to make a “Montana Buckaroo” .22 rifle to market to children. To qualify for the exemption from federal law, the guns would have the phrase “Made in Montana” stamped on them.

According to the original lawsuit, the prospective purchasers of the Montana Buckaroo “do not want . . . and will not buy” the gun if he obtained a federal license to manufacture it. After the Bureau of Alcohol, Tobacco and Firearms confirmed to Marbut that he could be subject to prosecution if he were to make the guns, state law be darned, he took his case to court.


Supreme Court Challenge

After a district court initially dismissed Marbut’s claim, the 9th U.S. Circuit Court of Appeals weighed in, affirming that the Commerce Clause does allow Congress to regulate trade within states, reasoning that if the specific item in question never actually crosses a state border it could still affect the market for other goods that are clearly identifiable as being involved in interstate commerce.

“Congress may regulate even purely intrastate activity ‘if it concludes that the failure to regulate that class of activity would undercut the regulation of the interstate market
in that commodity,’” the opinion states

Specifically, “even if Marbut never sells the Buckaroo outside of Montana, Congress could rationally conclude that unlicensed firearms would make their way into the interstate market,” the court said. “This result does not change because the Buckaroo will bear a ‘Made in Montana’ stamp to distinguish it from firearms that may be sold in the interstate market.”

The plaintiffs had acknowledged in advance that their claim could not stand up to Supreme Court precedent, but say the plan all along was to have a case to bring before the high court to get it to take another look at the breadth of the Commerce Clause. 

“The Supreme Court’s Commerce Clause jurisprudence has improvidently altered the very form of American government, reading out dual sovereignty, and stripping from the States all independence of policy or action,” the original claim states.

“This was about as good of a ruling as we could have expected from the Ninth Circuit. We must get to the U.S. Supreme Court to accomplish our goal of overturning 70 years of flawed Supreme Court rulings on the Interstate Commerce Clause,” Marbut said to WND after the decision was released. “We knew that the Ninth Circuit couldn’t help us with that. Only the Supreme Court can overturn Supreme Court precedent.”

Work on the appeal is already underway.

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