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June 15, 2011

Montana Firearms Freedom Act: Tilting At Windmills

by Brad Warbiany

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.

PS – Please note, of course, that I am not a lawyer. I don’t play one on TV, and I barely do a good impersonation of one in the blogosphere. Take all of the above with a large grain of salt, and I heartily welcome anyone with true legal expertise to tell me where I’m dreadfully wrong in the above.

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6 Comments

  1. Tilting at windmills – that’s mostly what we do here isn’t it?

    As for the chances for this attempt for Montana and other states to reclaim some lost sovereignty via legislation and the courts, with the way the courts have abused the Fourth amendment recently, I think all bets are off (something I’ve been meaning to write about but haven’t got around to – SCOTUS says that the flushing of a toilet or smelling pot can be considered probable cause for the police to break down a door without a warrant).

    I say good for Montana for at the very least being a pain in the ass for the feds.

    Comment by Stephen Littau — June 16, 2011 @ 10:38 am
  2. You two are hardly the first to do, but this usage of the phrase “tilting at windmills” bothers me.

    Quixote’s attacks weren’t foolish because of their futility; his attacks would have been just as foolish even if he had been equipped with the last in cruise missile technology. The foolishness stems from the fact that his targets were purely imagined enemies. Windmills had never done him any harm and it’s safe to assume they never would have.

    Our efforts may prove to be hopelessly futile, but it’s pretty clear that our enemies are very real.

    Comment by Jeff Molby — June 16, 2011 @ 6:43 pm
  3. FYI, I wrote the Montana Firearms Freedom Act to challenge federal Commerce Clause power, am the only individual plaintiff in MSSA v. Holder, our lawsuit to validate the principles of the MFFA, and I orchestrate this (hopefully) landmark litigation.

    This effort may not be as hopeless as Brad thinks.

    See Bond v. US, just released by the USSC today – a unanimous decision that reads like briefs by MSSA and amici in MSSA v. Holder.
    http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

    I’m not and don’t play a lawyer either, but I know more about some areas of law than some lawyers and am an unapologetic proponent of individual liberty. I won’t quit.

    Regards to Brad.

    Comment by Gary Marbut — June 16, 2011 @ 6:53 pm
  4. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.

    Ya know what would be fun to hear them litigate? What if the law was written such that the looser, intrastate regulations would only apply if the purchaser signed an affidavit swearing that he made that particular purchase specifically because it was an intrastate purchase and that he would not have made a similar interstate purchase if the intrastate option had not been available.

    That would seem to take the wind out of the sails of the “economic impact” argument.

    Comment by Jeff Molby — June 16, 2011 @ 8:35 pm
  5. Jeff,

    Point taken on the windmills phrase usage.

    I like your redirect on the “economic impact” argument BTW.

    Comment by Brad Warbiany — June 17, 2011 @ 9:10 pm
  6. Gary,

    My apologies. I just found your comment in our spam filter (I don’t check it very often), and wanted to let you know that the reason it didn’t show up originally wasn’t deliberate.

    I appreciate the impetus behind the MFFA, and do wish you success.

    Reading the decision in Bond suggests that what was at question was whether Bond had standing to challenge the statute in question, not whether the statute was valid. I would suggest that the positive impact of Bond on what is occurring in Montana would be that you would be granted standing to uphold your claim — but I think the merits of the claim may still be dubious [in the sense that it would contravene long-standing SCOTUS precedent-- not that the claim is wrong].

    Either way, I wish you luck. At the very least, I believe we have similar goals with regards to the RKBA. Keep fighting the good fight.

    Comment by Brad Warbiany — June 28, 2011 @ 9:18 am

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