Montana Gun Law Is a Barren Golden Goose

(CN) - High hopes to market a rifle called the Montana Buckaroo, which would be free from federal firearms licensing requirements, deflated in the 9th Circuit on Friday.

Montana had tried to make such a weapon possible with its Firearms Freedom Act, which would allow the manufacture of some firearms within the state and outside the purview of the federal commerce clause.

This led the Bureau of Alcohol, Tobacco and Firearms to warn in an "Open Letter to All Montana Federal Firearms Licensees" that federal law superseded the act.

Gary Marbut, a manufacturer of shooting range equipment for law enforcement agencies, asked the ATF if the Montana law allowed him to manufacture guns and ammunition within the state without obtaining a federal license.

The agency told him that he would likely face criminal prosecution if he did.

Marbut then filed suit alongside the Montana Shooting Sports Association, of which he is also president, and the Second Amendment Foundation in 2009 to determine their rights under the Montana law.

In the lawsuit, Marbut claims that he is all set up to begin manufacturing the Montana Buckaroo, a .22 caliber rifle that he says "several hundred" Montanans have already said they would buy.

U.S. District Judge Donald Molloy dismissed the case in Missoula, however, after finding that none of the plaintiffs had standing to sue.

Molloy had also said that the commerce clause, and the U.S. Supreme Court's interpretation of it, doomed their claims.

After a hearing in March, the federal appeals court unanimously affirmed on Friday from Portland. Though the three-judge panel disagreed with the lower court as to Marbut's standing, it found that it was not "free to disregard" decades of "commerce clause jurisprudence."

"Marbut argues that the manufacture and sale of the Buckaroo are outside the scope of the Commerce Clause, and that federal licensing laws do not apply as a result," Judge Richard Clifton wrote for the panel. "His primary argument is that an expansive interpretation of the Commerce Clause is inconsistent with dual sovereignty, and he laments the trajectory of the Supreme Court's Commerce Clause jurisprudence. Marbut argues, for example, that 'the Supreme Court's Commerce Clause jurisprudence has improvidently altered the very form of American government, reading out dual sovereignty, and stripping from the States all independence of policy or action.'

"Whether or not Marbut is correct in his critique of that jurisprudence, we are not free to disregard it."

Quentin Rhoades, a lawyer with Sullivan, Tabaracci & Rhoades for the plaintiffs, said he was pleased that the judges found Marbut has standing in the case.

He said in an interview that he will file a petition for review with the U.S. Supreme Court as part of his admittedly "unlikely" quest to convince the high court to rethink its expansive "post-New Deal" interpretation of the commerce clause.

"They need to overrule the New Deal commerce clause precedent that says Congress can regulate any activity, not just commerce," Rhoades said.

At oral arguments in the 9th Circuit, Rhoades told the panel that the Montana Firearms Freedom Act was an "attempt by the state to carve out dual sovereignty for itself when it comes to gun regulation."

Rhoades also called the case a partial attempt to "raise consciousness among the people that they have no power at the state level."

The panel ultimately found that, because Congress could "rationally concluded that the manufacture of unlicensed firearms, even if initially sold only within the state of Montana, would in the aggregate substantially affect the interstate market for firearms," the Buckaroo is "within reach of the long arm of federal law."

The panel went on to conclude that the Montana Firearms Freedom Act is "necessarily preempted and invalid," prompting a brief dissent from Judge Carlos Bea, who called this final shot "unnecessary."

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