Marbut Has Standing And Opens the Door for Future Litigants but the Montana Firearms Freedom Act (MFFA) Fails to Escape Federal Preemption

August 24, 2013

On Friday August 23, 2013, the Ninth Circuit issued its opinion in Montana Shooting Sports Association; Second Amendment Foundation; Gary Marbut  v. Holder, (Case No. 10-36094) (Aug. 23, 2013) (Judges A. Wallace Tashima, Richard R. Clifton, and Carlos T. Bea).

When enacting the Montana Firearms Freedom Act, the State of Montana attempted to limit the federal government’s power to regulate firearms. It expressly states that  a firearm or ammunition “manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation.”After Montana passed the MFFA, the federal government (Federal Bureau of Alcohol, Tobacco, Firearms & Explosives) sent an “Open Letter to All Montana Federal Firearm Licenses” putting them on notice that the MFFA conflicts with federal law. Plaintiff Gary Marbut (more here & here) wants to manufacture firearms under the MFFA and not comply with applicable federal laws.  Marbut sent at letter to the ATF asking whether he could manufacture his .22 caliber rifle, the “Montana Buckaroo” under the MFFA and “without complying with federal statutes” and be “without fear of criminal prosecution.” In a nutshell, the ATF said no. So Marbut sued.

The question was whether Marbut had standing to sue considering that that he had not manufactured the “Montana Buckaroo” yet, hadn’t been stopped from selling them yet, and essentially (arguably) hadn’t been economically injured – yet.  (Montana Shooting Sports Association, at 6.)

The Ninth Circuit noted that, like prior precedent, Marbut alleged “an economic injury resulting from laws explicitly prohibiting a business activity that he would otherwise engage in.” (Id. at. 9.)  But Marbut hadn’t participated in this particular business activity yet. Arguably, it was speculative.

In finding that Marbut has standing to bring his claims, the court opened the door for future litigants with the following: “But having operated a business enterprise in the past based on a now-prohibited activity is not a necessary condition for standing.) (Id. at 9.) For future litigants needing to establish standing to challenge a law prohibiting conduct that they wish to engage in, this case is a good example of how to establish a future economic injury

Here, it was enough that Marbut “made specific allegations substantiating” his claim that but for the threat of criminal prosecution, he would engage in the otherwise prohibited activity. (Id. at 10.) He declared that he would manufacture the Montana Buckaroo. He had suppliers for the Buckaroo’s component parts. He had design plans. And he had customers ready to order.  Marbut wasn’t just thinking about “maybe someday, if I get around to it.” He was ready to go. The Court found Marbut’s showing of an economic injury sufficient to convey standing.

But Marbut’s case ends – at least temporarily – here at the Ninth Circuit.  Even though he has standing to challenge the enforcement of federal firearm regulations, the court held that clear federal precedent brings the manufacture and sale of Marbut’s “Montana Buckaroo” within the scope of the Commerce Clause.

Relying on Gonzales v. Raich, 545 U.S. 1 (2005) (marijuana), United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006) (homemade machine gun), and the law school classic case involving Wickard and his wheat, Wickard v. Filburn, 317 U.S. 111 (1942), the court held that Marbut’s Buckaroo fell within the reach of federal law.

Had the court stopped there, Jude Bea likely would have not written his partial dissent and says as much. (Id. at 16.) But the court didn’t stop and went on to hold that because the MFFA provides that conduct conforming with the MFFA is “not subject to federal law or regulation,”  that the MFFA is “necessarily preempted and invalid.” (Id. at 15.)

Nobody should think that this particular gunfight is over. It’s just getting started. Reconsideration? Rehearing? Likely denied. But expect to see a Supreme Court Cert Petition in the coming months.

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