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Good Luck, But I’m Not Optimistic

Looks like MSSA and SAF are getting ready to go to court over the Montana Firearms Freedom Act:

“If a gun is made in Montana and stays in Montana, it isn’t engaging in interstate commerce,” said Alan Gottlieb, of the Second Amendment Foundation. “The federal government really should butt out.”

At issue is the Montana Firearms Freedom Act, which passed the 2009 Legislature and was signed into law by Gov. Brian Schweitzer. That law states that guns, ammunition and certain gun parts manufactured and used in Montana are not subject to federal gun laws.

No doubt they will try to distinguish their case from Raich, but I doubt the courts will bite.  There was a successful case involving a home made machine gun, US v. Stewart, that had prevailed in the 9th circuit, which Montana resides in.  The Supreme Court vacated the ruling and remanded it for reconsideration in light of Raich.  That to me speaks strongly that the Supreme Court views Raich as applying to unregistered machine guns just as readily as state-approved medical marijuana.

As much as I wish this really had legs, it looks to me more like SAF and MSSA boosting their pro-gun bonafides, than a serious legal challenge.

4 Responses to “Good Luck, But I’m Not Optimistic”

  1. Carl in Chicago says:

    I am not optimistic either, at least about the initial legal challenges. But I think the most significant issue is this (quoted from the SAFs press release):

    This wave of interest across the Nation is what the federal judiciary calls “emerging consensus” and will play an important role in validating the principles of the MFFA.

    Consensus is very important … what if 10 states pass such a law? Twenty? Thirty?

    Also and as an aside, I don’t like how the SAF and MSSA discuss this as an issue of “state’s rights.” Frankly, there is no such damned thing as the “rights” of a government at any level. There are powers. This is a 10th Amendment issue, and the 10A doesn’t mention state’s “rights.”

    Amendment 10 – Ratified 12/15/1791
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  2. Jessup says:

    Filing glitzy but essentially frivolous lawsuits that will be enormously popular with your constituency is a time-proven fund raising tactic. How many times have you received a mailing that said “For only X dollars you can become a co-plaintiff in this history making lawsuit?”

    SAF if nothing else is a past master at fund raising.

  3. Sebastian says:

    Carl:

    Asking that the lower courts take some vague sounding dicta over controlling precedent is asking for a lot. That might give me a glimmer of hope otherwise. But the case law on this is pretty clear and not terribly ambiguous.

  4. noflashbang says:

    You only need to look at Montana’s Constitution to see how we feel:

    Section 1. Popular sovereignty. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.

    Section 2. Self-government. The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.

    While I don’t think anything worse that a few grumpy people will come of this situation, it will change how people feel about the federal goverment. People in Montana don’t like the federal goverment getting in our way. Everytime the feds do somthing like this it give us another reason to hate them, and we come one step closer to saying “Screw it, you’ve become more of a problem than your worth. We are done.”

    Oh, and did I mention that we like guns?
    http://www.youtube.com/watch?v=tK9KuIiugT4

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