February 1, 2010

Feds Respond to Firearms Freedom Act Lawsuit; Motion to Dismiss “Expected”

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: )

The U.S.’s Motion to Dismiss and Brief in Support are viewable here.

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’.” (Click here)

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.

Comments (3)

God Bless Montana for their bravery in the face of the "Honerable" Eric Holder. I only wish California had such intestinal fortitude to challange the Feds like Montana. @#$%^ you and the horse you rode in on Feds!!! Go Montana!!

Posted by: MasterGuide | February 4, 2010 10:01 PM    Report this comment

The standing issue is a very real hurdle to maintaining this suit. Typically the courts want someone who has run afoul of a law to grant them standing to seek to invalidate it, which is the reverse of this lawsuit. But few manufacturers/retailers/buyers will want to risk federal prosecution for selling a firearm to a Montana resident without collecting all the federal excise taxes or filling out the federal paperwork. This standing issue here could be a real battle all by itself.

Posted by: JOHN C | February 4, 2010 2:45 PM    Report this comment

The standing issue is a very real hurdle to maintaining this suit. Typically the courts want someone who has run afoul of a law to grant them standing to seek to invalidate it, which is the reverse of this lawsuit. But few manufacturers/retailers/buyers will want to risk federal prosecution for selling a firearm to a Montana resident without collecting all the federal excise taxes or filling out the federal paperwork. This standing issue here could be a real battle all by itself.

Posted by: JOHN C | February 4, 2010 2:43 PM    Report this comment

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