Oleg Volk’s The High Road board posted this email from Gary Marbut, the President of the Montana Shooting Sports Association. MSSA and Marbut had sued the Federal government over the Montana Firearm Freedom Act.
Sender: Gary Marbut-MSSA
Subject: Report – Oral argument; MSSA v Holder US Motion to Dismiss
Date: Thu, 15 Jul 2010 21:55:17 -0600
Dear MSSA Friends,
Oral argument was held today on the U.S. Motion to Dismiss MSSA v. Holder, our lawsuit to validate the principles of the Montana Firearms Freedom Act.
The hearing took place in the U.S. Courthouse at the corner of Broadway and Pattee in Missoula, beginning at 9:00 AM, and finished shortly after 11:00 AM.
The U.S. moved to dismiss the lawsuit (standard, boilerplate move) based on standing, jurisdiction, and merit.
Concerning standing, the U.S. argues that I, as the sole individual plaintiff, don’t face imminent injury to allow me to obtain judicial relief because there is no certainty that the BATFE will arrest me and the U.S. will prosecute me if I forge ahead with plans to make MFFA items without federal permission (licensure).
About jurisdiction, the feds say the U.S. is sovereign and cannot be sued, except under the provisions of the Administrative Procedures Act which allows suit to clarify rights and responsibilities only after “final agency action.” The U.S. says that the BATFE letter to me advising me that I will be prosecuted if I make any MFFA items for resale is not final agency action, although the U.S. cannot say what other position the BATFE could take to grant me any relief beyond what it already has done (threaten me with prosecution if I make MFFA-protected items).
About merit, the U.S. says that precedent is against the MFFA concept, our side is bound to lose, so the court might as well just dismiss the lawsuit now.
In this hearing, the U.S. was represented by Jessica Leinwand, a young Department of Justice attorney from D.C. Jessica seemed bright, competent, well prepared, but only knowledgeable in a bookish way. That is, she seemed quick with and knowledgeable about case citations that supported her side of the argument, but she did not mount or support any philosophically-based arguments. Although Jessica’s arguments seemed to be competently mounted, they also seemed to lack any touch of passion or personal vestment. One may suppose it’s difficult to wax passionate about arguing the federal government position.
For a young attorney with limited experience to travel half way across the country to a strange place and stand in opposition to a half-dozen other experienced attorneys must be a nervous-making, intimidating experience. However nervous, Jessica did not let it show and did a good job of focusing on business at hand.
There were a whole string of attorneys representing our side of this contest. Lead attorney for Plaintiffs (MSSA, SAF, and me) was Quentin Rhoades, a partner with the Missoula firm of Sullivan, Tabaracci and Rhoades. Quentin has been lead counsel for Plaintiffs on this case since the inception, and has done other litigation for MSSA. Quentin was accompanied by ST&R attorney Rob Erickson, although Rob did not argue.
Plaintiffs had arranged in advance to give some of our argument time to two other attorneys representing amici parties to the lawsuit. One is Nick Dranias of the Goldwater Institute in Arizona. Montana federal court rules require that attorneys from out of state must associate with and be “sponsored by” a Montana attorney in order to appear in federal court in Montana. Nick was sponsored by attorney Tim Fox of Helena, recent candidate for Montana Attorney General.
The other amicus to whom Plaintiffs ceded some argument time was Virginian attorney Herb Titus, who represents Gun Owners of America and Gun Owners Foundation. Herb was sponsored in Montana by attorney Greg Jackson of Helena.
The Attorney General of Montana has intervened in this lawsuit to defend the constitutionality of a statute enacted by the Montana Legislature and was given oral argument time separate from that given to Plaintiffs and Defendant U.S. The Montana AG was represented by attorney Chris Tweeten from the Montana Department of Justice in Helena.
The AG was persuaded to cede some of his allocated oral argument time to Professor Jeff Renz of the U. of M. School of Law, who argued for another amicus group of Montana legislators.
Forward of the bar in the courtroom were the judge – Magistrate Judge Jeremiah Lynch, the court secretary, the judge’s two law clerks, Quentin, me, Jessica (and Jessica’s unnamed assistant), Tim, Nick, Greg, Herb, Chris and Jeff. There were about 40 people in the audience, including MSSA Board Member and State Representative Cary Smith from Billings, State Senator Jim Shockley from Victor, Idaho Representative Dick Harwood who sponsored the Idaho Firearms Freedom Act, a delegate from Congressman Denny Rehberg’s office and interesting others.
The order of presentation was this:
Magistrate Lynch introduced the case.
Quentin explained time ceded to Nick and Herb and introduced the Montana sponsors for each who introduced Nick and Herb to the court.
Chris introduced himself and introduced Jeff.
Then the hearing began.
Jessica went first for 35 minutes (all times approximate), and reserved 15 minutes for rebuttal at the end.
Quentin went next for 20 minutes, then Nick for 10 minutes, and Herb for another 10 minutes.
Following those, Chris argued for 15 minutes, and finally Jeff for 10 minutes.
Last, Jessica used her reserved 15 minutes for rebuttal/closing.
I will not attempt to cover all of the arguments made or questions asked by Magistrate Lynch. There was not a lot of new material that was not already in briefs provided by various parties, all of which is available from the FFA Website.
Although all attorneys involved (including Jessica) did a great job, Jeff carved out for himself the role of a cleanup batter. He used his final ten minutes primarily to address issues left in play by questions from Magistrate Lynch. In jumping into that cleanup role, I thought Jeff did an especially helpful job.
I have asked ALL others present (including audience members) to offer personal comment about the hearing today, and I will post those comments Online when available and send you a link. This location will also offer digital pics of all the folks involved (outside the Courthouse).
I will say that I thought we had a powerful presentation by those on our side (i.e., everyone but Jessica). Our net argument was that the lawsuit should not be dismissed, but should go to trial for development of relevant facts. There are far too many legal issues and subtleties at work to attempt to brief you on all of them here. However, if an entirely neutral judge were presented with all the briefs submitted and arguments heard today, I believe he’d let the matter go to trial. Of course, I’m not prejudiced.
Whether or not that will actually happen remains to be seen. Quentin thinks we may have a decision within two weeks, but I don’t think anyone really knows for sure.
No matter, the game is now engaged – we are on the field. We are in play with MSSA v. Holder and at the wave front of a tsunami of interest in states rights sweeping the U.S.
Gary Marbut, president
Montana Shooting Sports Association
author, Gun Laws of Montana
Another commenter, who goes by Proficient Rifleman, was in the courtroom as an observer and had this to say:
I was in the courtroom and can tell you that Quintin Rhoades did a very good job in his oral arguments. He presented the case that Mr. Gary Marbut and the Montana Shooting Sports Association are suffering harm by NOT being able to produce firearms under the MFFA, due to legitimate threat of prosecution by the Federal Government.
The attorney for the Goldwater Institute did a very good job also, as did the attorney for Gun Owners of America and Gun Owners Foundation. A representative for the Montana Attorney General’s Office also made a brief statement on behalf of Montana and the MFFA.
The Federal Government’s attorney made the case that Marbut and MSSA had no standing, since he has not produced a single firearm, has not lost any business from his non-production, and currently is not being prosecuted for violating the Gun Control Act. The Government also argued that Federal regulatory authority extends to purely intra-state activities pretty much anytime congress decides it should.
Marbut’s argument, and that of all the amici, though coming from slightly different directions, was that the threat of prosecution was enough to chill commerce. That the Federal Government does have the authority to regulate interstate commerce, but not intra-state (limited by the 10th amendment), and that various precedents may not apply since McDonald was decided.
Overall it was a good way to spend the morning.
Oral argument transcripts will be available soon.