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Montana law before supremes

Americans ‘collecting torches,

pitchforks’ over feds’ arrogance

Montana lawsuit plaintiff tells Supreme Court

justices to rein in Washington


The plaintiff in a Montana lawsuit has written an open letter to members of the U.S. Supreme Court, where his case soon is to be appealed, pleading with them to rein in the federal government’s arrogance and conceit.

The letter from Gary Marbut, president of Montana Shooting Sports Association and author of “Gun Laws of Montana,” actually described the problem as the “overweening federal power,” and that’s defined as “overconfident, conceited, cocksure, cocky, smug, haughty, supercilious, lofty, patronizing, arrogant, proud, vain, self-important, imperious and overbearing.”

Sound like Washington?

“The natives are beyond restless,” Marbut wrote to the justices. “They are at the stage of collecting torches and pitchforks and preparing to head for the castle gates en masse.”

He continued, “There is plenty of evidence for this assertion. Nine states have enacted Firearms Freedom Acts, and 23 others have introduced FFA clones and may yet enact them. Other states have enacted or introduced other ‘Freedom Acts,’ such as the Whiskey Freedom Act, the Light Bulb Freedom Act, and the Healthcare Freedom Act. But those only tell part of the story. States are passing laws prohibiting enforcement of indefinite detention under the NDAA, there are police agencies that have publicly declared refusal to enforce provisions of the Patriot Act(s), there are the states that have enacted various marijuana tolerance laws in defiance of federal law, and much more. These rejections of overweening federal power are happening not only at the state level, but at the county, city level, and with individual citizens.

“Frankly,” he wrote, “the working people of America are fed up with an overbearing federal government bent on regulating everyone and everything.”

His lawsuit seeks a court decision that his state’s Montana Firearms Freedom Act allows him to manufacture and sell within Montana a “Montana Buckeroo” .22 rifle.

Without oversight from the federal government.

Read the letter itself.

The federal bureaucracy responded to his plan by threatening him with criminal charges.

However, he lays out an argument that Washington has stepped so far beyond its constitutional authority that unless it is reined in, bad things are bound to happen.

Peaceful revolution

“President John F. Kennedy informed us, ‘Those who make peaceful revolution impossible make violent revolution inevitable.’ MSSA v. Holder is our best, and could be the last or near last, attempt at the peaceful revolution we’d all emphatically prefer to the alternative Kennedy asserted,” Marbut wrote.

“It could well be that MSSA v. Holder marks an historical cusp similar to that served up to SCOTUS in Scott v. Sandford. (For any non-attorneys reading this, Scott v. Sandford is often known as the ‘Dred Scott decision,’ a Supreme Court decision thought by many historians to have been the spark that set off the Civil War, a decision that effectively upheld the institution of slavery.)”

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The lawsuit was filed by Marbut and several firearms organizations in Montana after the state legislature there adopted the Montana Firearms Freedom Act. It simply states that firearms made and sold inside Montana’s borders are exempt from federal regulation.

Washington disagrees. It maintains that under the Interstate Commerce Clause, it has the right to control commerce inside states, even though the constitutional provision specifies it’s for commerce “among” the states.

Montana Buckaroo

The case never was about just a Montana Buckaroo, though.

“I wrote the Montana Firearms Freedom Act (MFFA) in 2004, specifically to use firearms as the vehicle to challenge federal power under the Constitution’s Interstate Commerce Clause (ICC),” Marbut explains.

The lawsuit was thrown out by a federal district judge on grounds of standing and merit. The far-left leaning 9th U.S. Circuit Court of Appeals disagreed, stating that the plaintiffs do have standing, but it affirmed the ruling on merit, opening the door to appeal to the U.S. Supreme Court.

Marbut argues in his letter that the problem traces back to President Franklin D. Roosevelt, who in a fight over wheat price supports threatened to “pack” a Supreme Court with six extra justices so he could ram through his agenda of government control.

The then-members of the Supreme Court folded, deciding the “Wickard” case in Roosevelt’s favor, creating the basis for the long string of later decisions that continued to tighten the federal grip on instate activities.

New Definitions

Marbut explained the court did its work by creating new definitions for “regulate,” “commerce” and “among,” which resulted practically in an amendment to the U.S. Constitution, since the existing understanding would be changed.

He said commerce was changed to mean “any economic activity, no matter how minor,” regulate was given the meaning “prohibit” and among was made to mean “within.”

“The word ‘among’ is a bit slippery to define, although we all grasp what it means. However, we can easily define what it does NOT mean with a simple thought experiment: You say, ‘Among the three children they had enough money for two ice cream cones.’ I ask, ‘Is an X-ray machine required to find the money.’ You answer, ‘No, because the money is not within them, it is among them.’ Thus, we see clearly that the meaning of ‘among’ does NOT include ‘within.’ Yet to make the Wickard decision do what FDR wanted, SCOTUS had to redefine ‘among’ to mean ‘within.’

Read Wayne LaPierre’s documentation of “America Disarmed: Inside the U.N. & Obama’s Scheme to Destroy the Second Amendment.”


He also points out that a standard principle of law is that provisions adopted later amends those adopted earlier. Marbut pointed out that the Second Amendment, as well as the Ninth and Tenth, were adopted after the commerce clause, and thus amended it.

And he noted, “The laws that the U.S. asserts prohibit Montana from implementing the MFFA, and that prohibit me from making and selling the Montana Buckaroo sans federal regulation, are clearly a form of prior restraint. SCOTUS has been clear that prior restraint upon the exercise of constitutionally-protected rights is not to be lightly tolerated. Because federal laws being applied inhibit exercise of Second, Ninth and Tenth Amendment reserved rights in advance, those laws neatly fit the prior restraint definition. Generically, prior restraint of a reserved constitutional right may not be done when supported only by a rational basis. It will be difficult or impossible for the U.S. to muster persuasive arguments to satisfy a level of review more strict than a simple rational basis concerning an asserted federal trump of the MFFA.”

He also argues that Montana entered statehood in 1889 under a compact, or contract, and the state accepted the U.S. Constitution as it was understood at the time.

“If the people of Montana had understood in 1889 that this proposed Compact would preclude them from being able to make firearms, or even repair firearms, without a federal license, I seriously doubt that the Montana Legislature would have approved the Compact and Ordinance 1.”

Specific performance of that contract would be an appropriate remedy, or in the alternative, “rescission.”


“We prefer not to rattle that particular saber, but that ultimate remedy remains an inescapable final option that cannot be blinked away,” he said.

What the court needs to do, he said, “reverse Wickard and all of its progeny, based on demonstration that the Wickard Court improperly amended the Constitution.”

“That would certainly take courage. But such a decision would repair a lot of wrong that has happened in our nation, and would reaffirm the proper principles by which our federal government is supposed to be governed.”

Or it could simply leave the federal bureaucracy untouched, he noted.

“Suffice it to say that where the primary role of government is supposed to be to protect the liberties of the people, our federal government is charging madly down the road to transform the U.S. into some form of police state where everything that is not permitted by government is forbidden. That is simply unacceptable.

“The time will come very soon when the Kennedy equation is likely to tip decisively in one direction or the other. I dearly hope that SCOTUS will avail itself of MSSA v. Holder to shepherd in the much preferred peaceful revolution in President Kennedy’s equation. The alternative is too dire to contemplate, but remains clearly potential.”

Attorney Nick Dranias represented friend-of-the-court party the Goldwater Institute and others in the 9th Circuit’s oral arguments, and Quentin Rhoades represented Marbut and Montana shooting interests.

The arguments before the 9th Circuit have been posted online: