9th Circuit Told That Montana Guns are Special

PORTLAND, Ore. (CN) - The 9th Circuit this week heard arguments on whether people who make and sell guns in Montana should be exempted from federal regulations.

The case stems from a 2009 federal lawsuit by the Montana Shooting Sports Association, the Second Amendment Foundation, and Gary Marbut.

They sued U.S. Attorney General Eric Holder, seeking an injunction that would allow them to make and sell small firearms in Montana without complying with federal gun laws.

"In particular, [Gary] Marbut has a substantial opportunity to market a 'Montana Buckaroo'" youth model, single-shot, bolt-action .22 caliber rifle to hundreds of customers who have placed orders for many hundreds of firearms," according to the amended complaint.

To sell that gun, however, Marbut would have to make it based on the Montana Firearms Freedom Act, without licensing it under federal requirements, according to the complaint.

Montana also "expressed keen interest in buying non-lethal ammunition" from Marbut, the complaint states.

But the Bureau of Alcohol, Tobacco, Firearms and Explosives ruled that federal law supersedes the Montana Firearms Freedom Act.

A federal judge dismissed the case in 2010, finding that "guns manufactured in accordance with the Montana Firearms Freedom Act would be interchangeable economic substitutes with other firearms, regardless of the existence of a stamp indicating the weapon was 'Made in Montana.'"

The plaintiffs appealed, and a three-judge panel heard arguments Monday.

Plaintiffs' attorney Quentin Rhoades said the Montana Firearms Freedom Act is an "attempt by the state to carve out dual sovereignty for itself when it comes to gun regulation."

So long as a gun made in Montana is not transported or sold out of state, gun makers should have a "safe harbor" to make guns there, Rhoades said.

He said that federal gun laws apply to a "war on violent crime in urban areas and its violent criminals."

Rhoades claimed the regulations don't apply in Montana, which has only seven cities with a population greater than 20,000.

Judge Paul Clifton noted that the plaintiffs' brief said the Supreme Court's Commerce Clause jurisprudence "improvidently altered ... American government" and that the plaintiffs' "hands are tied."

"Is there anything we can do about this?" Clifton asked. "Or are we just a weigh station in your attempt to go to the Supreme Court and get it to rethink its Commerce Clause jurisprudence?"

Rhoades said the court should apply an intermediary scrutiny test to the case and that the Commerce Clause does not apply.

Clifton grilled Rhoades about the "Made in Montana" guns being transported out of state, saying he was "baffled" that Rhoades suggested Congress would permit the regulations the plaintiffs requested.

"How are you going to keep those firearms from leaving Montana? Guards at the border?" the judge asked. "You don't think there are going to be large shipments of those guns to outside of Montana? "

Judge Wallace Tashima noted that Montana Firearm Freedom Act is only a declaration, and "doesn't give any concrete rights."

Rhoades said the Act gives rights with regard to guns that stay in Montana because the Commerce Clause is not affected, and that the court needs rules for dual sovereignty.

Arguing for the U.S. Attorney General, attorney Mark Freeman said it is worth noting that plaintiff Marbut has never claimed that he has actually made a gun.

"Federal courts generally do not sit to bless in advance business plans that may never come to fruition," Freeman said. "If you did, that would be the only thing federal courts would be doing.

"We don't think it's too much to ask Mr. Marbut that he can show he can at least make a firearm that doesn't blow up when you pull the trigger.

"A sportsman does not a gunsmith make," Freeman said.

"So you want him to assemble a gun and then be busted, and then bring the claim?" Judge Carlos Bea.

Freeman said it is not a violation of federal law to make a gun like the one Marbut wants to make, and he still has the Second Amendment right to keep it in his home and use it for protection.

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