MSSA president Gary Marbut commented, “We’ve believed all along that the federal District Court cannot grant the relief we request. We seek to overturn a half-century of bad precedent. Only the U.S. Supreme Court can do that. In that light the pending dismissal by the District Court means little except that we are now free to move to the next step of the process.”

MSSA and its partner the Second Amendment Foundation filed MSSA v. Holder on October 1, 2009, to validate the principles of the MFFA. Enacted by the 2009 Montana Legislature, the MFFA declares that any firearms made and retained in Montana are simply not subject to any federal authority under the power given to Congress in the Constitution to “regulate commerce … among the states.” The MFFA is part of a growing national effort by states to reject federal authority and control over everything. It is an assertion of states rights, and the Ninth and Tenth Amendments to the U.S. Constitution

Since the MFFA was enacted in Montana, it has been cloned and enacted in seven other states: Tennessee, Utah, Wyoming, South Dakota, Alaska, Idaho and Arizona. Other clones have been introduced in the legislatures of 20 other states.
(See: http://www.FirearmsFreedomAct.com)

MSSA v. Holder has attracted numerous amicus curiae parties that have filed supporting briefs, including the State of Utah (also representing other states), the Goldwater Institute, the Paragon Foundation, Gun Owners of America, the Weapons Collectors Society of Montana, Montana Legislators, and Legislators from other states. It is expected that other amici will join as this suit is appealed to the Ninth Circuit.

Once the Ninth Circuit rules on the appeal, plaintiffs intend to appeal any continuation of the dismissal to the U.S. Supreme Court, at which point in the process plaintiffs could get an actual ruling on the merits of the case. Or, the Ninth circuit could recognize the merit of the issues involved and remand the matter to the District Court for an actual trial.

“That the U.S. is so desperate to keep this matter from going to trial,” Marbut said, “tells me that they are very afraid of any precedent that might be established. Normally, a Motion to Dismiss is to preserve judicial economy. In this case it is to prevent a fair hearing on the significant issues we raise. The federal government doesn’t want any questions about the extent of its power.”

“The vehemence of the recommendations by the magistrate involved” Marbut continued, “demonstrates the desperation of the federal government, including its judicial branch, to prevent a fair adjudication of the issues underlying the MFFA.”

The city of Chicago threw together a gun ordinance after McDonald v. Chicago, which is nothing more than an in-your-face scoffing of the United States Supreme Court, much the same way that Washington, D.C. did after District of Columbia v. Heller. Why wouldn’t Chicago do similar things? D.C. has not really been tested as to the Constitutionality of their restrictive gun laws. After all, District of Columbia v. Heller only ruled that the District’s gun ban was unconstitutional. It did not define what can and cannot be used for gun restrictions.

Chicago’s continued gun ban ordinance – because that’s what it is – requires everyone to register their guns. The city has 120 days in order to process an application (in six months that is reduced to 45 days). A person cannot purchase and register more than one gun every 30 days and there will be restrictions of the type of guns allowed. But this “gray” area concerns me.

Guns deemed “unsafe” because of safety recalls or poor quality can’t be registered.

A safety recall on guns might be a bit more clear cut but who is going to make the determination that a gun is “poor quality”? By many people’s standards, there are a lot of “poor quality” guns readily available to purchase. This reeks of manipulation. Also don’t be fooled by this statement. If a gun cannot be “registered” it cannot be purchased and possessed within the city.

So, for those living in Chicago, once you’ve jumped through the hoops of registering your firearm, which will take up to 6 months to do, you can keep it in your house but not be allowed to have it outside, including on your porch or in your garage.

So, tell me what you think. Do you think the McDonald v. Chicago ruling provides that states cannot create any gun laws that exceed those of the Federal Government? Obama and his administration are suing the state of Arizona claiming that Arizona does not have the authority to eclipse the immigration laws of the Federal Government. Does this also mean that Illinois and specifically the city of Chicago, doesn’t have the authority to transcend Federal gun laws?

If and when this all gets sorted out, will it be determined that the Federal Government determines what gun laws will exist? And will this open the door for Federal Government to intrude further into our inalienable rights and craft stricter gun laws?

How does this all align with those states pushing back against the Federal Government in attempts to reaffirm state sovereignty?

I’m sure it began long before our obsession with self-esteem. So consumed we became with making sure our kids’ feelings were never hurt, we lost all reason and understanding and began teaching that exceptionalism wasn’t “fair”. (Oh, there’s the four-letter word that should be banned.)

Was it diversity? We were being indoctrinated that diversity was admirable, that some was good and more was better. Lost in all this was the importance of retaining identity, for without identity how can a child’s self-esteem have a foundation?

I’m afraid it all began a long time ago. Little by little we lost the focus of what made America great.

Benjamin Rush, Benjamin Franklin, John Adams, John Hancock, Samuel Adams, Elbridge Gerry, Thomas Jefferson, Benjamin Harrison and Edward Rutledge, are only a few of the exceptional people who signed our Declaration of Independence. One trait that made them exceptional was their desire for and understanding of freedom. They didn’t want to be like England or any other. They wanted to be like America.

John Adams at a very young age wrote of his dreams that someday America would be the greatest nation on earth, not to look down on others but to draw them up unto this country’s greatness. Adams’ dream came true. America did become the greatest nation on earth, doing more to help other people than any other nation. It came from liberty, the freedom to excel, the desire to be the best of the best. It was called exceptionalism. It is what made America a magnet that draws others to come here. Why do we want to extinguish the magnetism?

As I sat yesterday and watched the President of Mexico, Felipe Calderone, stand at the stage of the greatest legislative conclave on earth, the symbol of liberty and everything great, and ridicule America while members of that Congress stood in applause for such treasonous, anti-American sentiments, I wondered if the above mentioned exceptional men had been sitting in that audience, what their reaction would have been.

As President Barack Obama stood outside the White House with Calderone, in what certainly appeared to be an affirmation from our President of his hatred toward America, I pictured George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson gathered amongst the bushes of the Rose Garden, standing in utter disbelief.

Tom Remington

We learned yesterday that Kagan was “not sympathetic” to one man fighting for his Constitutional right to keep and bear arms. According to Klukowski, as Solicitor General, Kagan did not seek oral argument time or even file a brief in the recent case of McDonald v. Chicago.

As Klukowski points out, Kagan should have at least filed a brief in this case as the crux of the entire appeal is to whether or not the 14th Amendment to the United States Constitution incorporates the Second Amendment, an obvious federal issue. Instead, she remained silent. Was this a blatant attempt to stay “off record” on gun rights as Obama and Kagan had previously conspired to sterilize her record as much as possible so she could more easily fill a vacant seat on the Court? It would appear as such.

Also remember that Kagan was part of the Bill Clinton Administration that destroyed our Second Amendment rights through the Assault Weapons Ban in which they created lists of guns to ban that stretched even the wildest of imaginations as to what might constitute an “assault” weapon.

It is Klukowski’s contention that Obama intends to attack the Second Amendment right and destroy it through building a Supreme Court comprised of anti gun justices who will approve any kind of ban of guns. He was able to place Sotomayor there and we are all quite familiar with her past record on gun rights cases.

On this very blog, I have been vigilant in posting information about states proposing, passing and signing legislation in attempts to nullify federal authority of gun control laws forced onto them. But this push back we are witness to is now reaching beyond the Second Amendment. States are passing bills declaring the federal government can’t force them to “buy into” federal run health care. Utah has effectively told the federal government it’s taking back some of it’s lands. Other states don’t want anything to do with federal ID cards, they’re ignoring federal marijuana laws, have put the feds on notice that their local police departments have more authority than they do and that National Guard troops can be recalled by states.

These are just some samples of a movement that has at least 26 states proposing, passing or signing “Firearms Freedom” bills that tell the federal government to back off. This spreading action is a pretty good indication that states are fed up with an overreaching federal government but will it do any good? More importantly does any of this hold any legal strength? The New York Times has more.

It is unfortunate that Americans have sat by essentially doing nothing while states’ rights have been usurped. It is obvious the stealing of rights has gone too far and some want to reclaim that power and sovereignty. Only time and years of litigation can answer many of the questions. The immediate affect might come at the polls in November.

The model for most of these bills came from Montana’s Firearms Freedom Act, a bill that basically states that any gun or gun accessory manufactured in Montana that is purchased and remains in Montana, cannot be regulated by the Federal Government of the United States. Montana is seeking “Declaratory Judgment” before suggesting that anyone proceed with the manufacturing of guns and accessories.

In reality what these Firearms Freedom Acts are doing is “nullifying” the authority of the Federal Government to regulate guns within the borders of each state when none of the guns or related products ever leave the state. The Federal Government has been very successful in the past in regulating all guns through the “Commerce Clause” of the Constitution. Montana’s bone of contention is that the Commerce Clause has regulated interstate commerce and has no authority over intrastate commerce.

One might ask if this is a full blown act of nullification. It’s not that Montana and other states are saying that any or a specific federal law is being declared unconstitutional in it’s entirety. In this case any law that the Federal Government thinks gives them authority to regulate intrastate gun manufacturing, is being challenged.

Gary Marbut, President of the Montana Shooting Sports Association and one of the sponsors of the MFFA, says this is a states’ rights issue.

This is a states’ rights effort, using firearms as the object of the exercise. The MFFA exempts Montana-made and retained firearms, firearm accessories and ammunition from federal power, saying that if these items do not cross state lines, they are strictly INTRAstate commerce, not INTERstate commerce, and not subject to federal authority.

Although nullification isn’t a term that is widely used these days, there are other examples of modern day nullification or challenges to certain federal laws. Two that come to mind are the REAL ID Act and marijuana laws. Some states have passed legislation challenging the constitutionality of forcing citizens to have to carry an identification card they believe infringes on their right to privacy and the Constitution. And, some states have passed their own laws authorizing marijuana for medical use where the Federal Government bans all uses and possession of the drug.

We may also be staring down the barrel of nullification depending on what happens with President Obama’s proposed National Health Care plan. If it is mandated that every American citizen have health insurance, many have asked where in the Constitution does the Federal Government have that kind of authority.

Probably the most recent case that expanded the power of the Federal Government to regulate commerce, came in 1942 in the Wickard v. Filburn case. This came at a time when President Roosevelt demanded the power to institute his programs he thought where going to get us on the road to recovery after the Depression. Scary isn’t it.

One of the more notable accounts of nullification was in 1832 in South Carolina. South Carolina’s “Ordinance of Nullification” declared the Tariff of 1828 and Tariff of 1832 unconstitutional. This put President Andrew Jackson in quite the predicament. While Jackson quietly assembled his army, ready to invade South Carolina, negotiations continued. Jackson’s fear was that if South Carolina were to be allowed nullification, many of the southern states would follow suit. Also many of the New England states apposed the tariffs. Jackson feared that secession would follow the nullification and this would lead to the demise of the Union. He also feared that an invasion of South Carolina could just as easily lead to civil war.

Other than President Jackson’s fear of the trouble in South Carolina, his bigger deterrent was coming from the fact that several other states, although never officially declaring nullification, were poised to do so.

Perhaps it is telling that so many states are seeking some form of nullification, some dealing with REAL ID, others medical marijuana and 25 states or more, opting to use gun rights as their tools to seek out a return of more state sovereignty, as is granted us in the Tenth Amendment. What does it tell us that so many states chose gun rights as their tool? And what does it tell us about the people’s attitudes toward the expansion of government.

Where will this go? First we should wait to see what the Court rules in the Montana Firearms Freedom Act case and watch to see how many other states pass and get signed their “nullification” bills. Soon, then, we can declare, “Balls in your court!

Tom Remington

Photo from fOTOGLIF

The TPM has become a powerful force. Why? Because it is of the people and by the people. Because of the TPM business as usual in the political sphere got upended. We saw that in Virginia and New Jersey. When Scott Brown got elected to the Senate seat in Massachusetts, that is when it become clear to me that Republicans didn’t know what the Tea Party Movement was about either.

The next day Washington was abuzz. Politicians were scrambling around and doing one of two things – resigning or spinning their cocoons preparing to metamorphose into something they really weren’t out of fear for the life of luxury on Capital Hill they might lose.

The Democrats are running scared of the TPM because it has hurt them and they are clueless as to what it is and why. They rage on claiming “teabaggers” are just angry conservatives propped up by icons like Rush Limbaugh, Sean Hannity, Mark Levin and others. On the other hand, the Republicans think they “own” the TPM, as if it is just a tool of their party. Some republicans are even saying that the TPM could destroy the Republican Party.

Recently Sarah Palin, former governor of Alaska and Vice Presidential candidate under John McCain in 2010, said the Tea Partiers had to chose a party, I assume meaning they couldn’t form a third party, with strong hints they needed to morph into the Republican Party.

But Palin is not alone. Some political hopefuls, who have benefited greatly from the Tea Party Movement, are also encouraging the TPM to join forces with the Republican Party. Marco Rubio of Florida comes to mind. The list continues.

Speaking of Marco Rubio, I just got off the phone with one of his volunteers here in Florida. He was asking if Mr. Rubio could count on my vote in the upcoming primary. My answer was a simple yes, provided that he sticks to his conservative principles. I also mentioned about Rubio’s statement yesterday at CPAC that the Tea Party Movement had to join with the Republican Party. I explained my position and told him that what was good about the TPM as it stands is that if these candidates are the right ones, they will get the TPM votes. What’s more American than that?

So, is this joining forces really a good thing? I don’t think so. I am no suggesting a third party but certainly would not oppose the wishes of the majority of Americans. I think that it has become clear through witness of what the TPM has been able to achieve, it could possibly become a viable third party. Many oppose that claiming it would water down the Democrat and Republican parties. Perhaps but isn’t the meat and potatoes of the TPM all about destroying “politics as usual” in Washington? Serious argument can be made as to whether any of the existing parties really do represent the wishes of the American people.

I don’t think the TPM should become a third party but I also don’t believe merging into the Republican Party is the right move either. Both major political parties survive and rule over us by having far too much power, both within their own respective parties and on Capital Hill. This runs anti to the TPM.

The Tea Party Movement is powerful but they shouldn’t believe for a moment that they can meld into the Republican Party and still retain that power; the power of the people and by the people. Once the Republicans can seize the reins of the TPM, Washington will be back to business as usual without a very powerful watchdog group interested in real change – change back to a constitutionally run limited government.

The Tea Party Movement needs to pride itself on what it has accomplished and proudly stand alone sending a message to all party members, all politicians and all hopefuls that there is accountability. As a government of the people and by the people should be, representatives who go to Washington serve at the behest of the voters not via the powers of their parties. This country will return to its strength once the Tea Party Movement can reeducate Washington.

No more business as usual. It’s about the people.

Tom Remington

Photo from fOTOGLIF

Heller was a victory for gun rights as the ruling declared that the Second Amendment did guarantee an individual, not a state-run militia, the right to keep and bear arms. But it didn’t answer the question as to whether the states and the cities and towns within those states, have the right to limit or restrict gun ownership based on a degree of sovereignty from the federal government. Hopefully, this is what McDonald v. Chicago will answer for us.

But hold on. It’s not quite that simple. The Second Amendment, which is the one most Americans believe guarantees them the right to own a gun, says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We know that everybody and his brother have twisted, spun, manipulated, redefined and reprocessed the Second Amendment hoping they could convince the people what they think the Second Amendment is “meaning” to say. We now know from Heller, that Justice Scalia’s majority opinion stated very clearly that the Second Amendment guarantees an individual that right.

McDonald, however, is a bit more complicated. Lawyers for McDonald are hoping to convince the Supreme Court that the Second Amendment, as defined by Scalia’s Heller decision, has to be applied to the states because of the Fourteenth Amendment, which, as it might apply to McDonald, says: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Whether we like it or not or agree, over the years the Due Process Clause of the Fourteenth Amendment has been used repeatedly to apply our rights under the Constitution. I have often asked why the Second Amendment cannot stand along and have never received what I would call a satisfactory answer. Nevertheless, McDonald will ague accordingly in hopes that the Supreme Court will agree.

I have repeatedly stated that I thought the use of the Fourteenth Amendment to apply the Second Amendment to the states comes at us as a bit of a two-edged sword. I still think I’m right in that analysis. States are scrambling around finding ways of reestablishing their sovereignty. Because the Fourteenth Amendment utilizes the power of the Federal Government to apply a Constitutional right, isn’t that somehow calling upon the authority to exert the power one is seeking to get out from under?

Ken Klukowski for Townhall, makes a stab at trying to explain how lawyers for McDonald will use the Fourteenth Amendment to win their case.

The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts.

The National Rifle Association, considered a “respondent” in this case, has been granted time on the floor to argue their side of this case in hopes to keep the court focused on gun rights and not allow the “Privileges and Immunities Clause” argument to become so broad based the court balks on making any ruling. The NRA would like to use the Fourteenth Amendment to only apply to the Second Amendment in this case.

The NRA’s argument therefore stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the Fourteenth Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.

On March 2, 2010, the Supreme Court is scheduled to hear oral arguments in this case. How focused it will be remains to be seen. Potentially, this ruling, as it might pertain to our Second Amendment, could be huge. In this modern era of gun laws and battles over gun rights, each step taken to define our right to own guns is monumental. We must remember that the Supreme Court has tended to shy away from Second Amendment interpretations. Should the Court opt to define for us the powers of the states in forcing gun laws, would be historical.

Tom Remington

MISSOULA – The United States has made its first response to a lawsuit filed in federal district court in Missoula to test the Montana Firearms Freedom Act (MFFA), passed by the 2009 Legislature and signed into law by Governor Schweitzer.

The MFFA declares that any firearms, ammunition or firearms accessories made and retained in Montana are not subject to federal regulation under the power given to Congress in the U.S. Constitution to regulate commerce “among the several states.” The MFFA is a states’ rights challenge on Tenth Amendment grounds, with firearms serving as the vehicle for the challenge.

This lawsuit to validate the MFFA was brought by the Montana Shooting Sports Association (MSSA) and Second Amendment Foundation (SAF). The suit names U.S. Attorney General Eric Holder as defendant, and is referred to as MSSA v. Holder.

The first response to the lawsuit by the United States is a Motion to Dismiss, submitted January 19th and considered to be a standard procedural maneuver in lawsuits against the U.S government . This motion seeks to avoid the legal merits by asserting that the Plaintiffs lack standing to sue, that a justiciable controversy does not exist, and that prevailing case law is against Plaintiffs.

MSSA President Gary Marbut, also a Plaintiff in the lawsuit explained, “The first import of this response is that the legal game is now on. There was some concern that the defendants would forfeit the game with no response in an effort to prevent this important issue from being adjudicated properly. We are now beyond that hurdle.” However, the Motion to Dismiss by Washington also seeks to sidestep proper adjudication.

SAF Chairman Alan Gottlieb said, “We are disappointed but not surprised that the government would try to kill this suit on standing, rather than arguing about the merits of the case.”

The MFFA concept has gained traction across the Nation since its passage in Montana. Tennessee has enacted a clone of the MFFA, and other clones have been introduced in the state legislatures of 19 other states, including: Alabama, Alaska, Arizona Florida, Georgia, Indiana, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wyoming. . Ten or more additional states are expected to introduce yet more MFFA clones in the next few weeks. (See: http://www.FirearmsFreedomAct.com)

The U.S.’s Motion to Dismiss and Brief in Support are viewable at: http://FirearmsFreedomAct.com/montana-lawsuit-updates/

MSSA and SAF have assembled a litigation team for this effort consisting of three attorneys from Montana, one from New York, one from Florida and one from Arizona. Lead attorney for the Plaintiffs is Quentin Rhoades, partner the Missoula firm of Sullivan, Tabaracci and Rhoades. Other interested parties from both in and out of Montana are preparing to weigh in on this issue of national interest and national importance as amicus curiae (friends of the court).

Marbut commented, “The FFA concept has created a firestorm of interest nationwide. Lots of people and other states are watching carefully to see how Montana fares in this challenge to overbearing federal authority and to Washington’s attempt to control every detail of commerce in the Nation, especially including activity wholly confined within an individual state. That level of micro management certainly was not the intent of our founders when they gave Congress limited power in the Constitution to regulate commerce ‘among the states’.” (See: http://FirearmsFreedomAct.com/what-is-the-commerce-clause/)

MSSA is the primary political advocate for gun owners and hunters in Montana, having gotten 54 pro-gun and pro-hunting bills through the Montana Legislature in the past 25 years. SAF is a pro-gun foundation in Bellevue, Washington, established to press the rights of gun owners primarily in judicial fora. SAF has been a party to numerous lawsuits to assert the rights of gun owners across the Nation.