The Montana Firearms Freedom Act came under fire before the Ninth Circuit this past Monday. Appellants Gary Marbut, the Montana Shooting Sports Association, and their attorney Quentin Rhoades advanced the unusual strategy of declaring they should lose under current Supreme Court precedent. Victory for them would consist of nothing short of overturning the decades-old case law underpinning the federal firearms regulatory regime that conflicts with the Montana Firearms Freedom Act’s declaration that firearms may be freely manufactured and sold within the state primarily from components that originate from the state. They wanted to force a loss in the Ninth Circuit so that they would be able to petition the Supreme Court for certiorari to reconsider and overturn its expansive post-New Deal Commerce Clause precedent, including Gonzales vs. Raich and the infamous Wickard vs. Filburn.
Appellants’ argument—if it can be called that—was quite a gamble; and an admirable one if only for its Western State gutsiness. But it is debatable whether the gamble was a wise one. The panel consisting of two conservative jurists and one liberal jurist—a rare composition for the Ninth Circuit—looked perplexed when Attorney Rhoades repeatedly confirmed that their courtroom was merely a way station on the road to the Supreme Court.
The Goldwater Institute and the Cato Institute took a different approach as amici curiae. In an unusual move, the Ninth Circuit allowed the amici 10 minutes of additional time to argue in support of the constitutionality of the Montana Firearms Freedom Act. We seized the opportunity.
Our argument opened with the observation that the case presented a question of first impression and one that should prevail under current Supreme Court precedent—especially in view of the Court’s emphasis in NFIB vs. Sebelius that the “letter and spirit” of the Constitution limits claims of implied power under the Commerce Clause, as confirmed by the Necessary and Proper Clause. Based on Federalist Nos. 28, 31, 33 and 51, we contended that the Ninth and Tenth Amendments were meant to work in tandem to confirm that the states may exercise their reserved powers to secure constitutional liberty against federal overreach. In other words, the Founders fully intended for the people to resist federal usurpation by passing laws such as the Montana Firearms Freedom Act to protect freedoms guaranteed by the Second and Ninth Amendments. Consequently, the “letter and spirit” of the Constitution prohibited preemption of the Montana Firearms Freedom Act to the very extent that such preemption was premised on implied power under the Commerce Clause.
We also argued that any exercise of implied power under the Commerce Clause should be subjected to heightened judicial scrutiny. Relying on Fourteenth Amendment enforcement clause precedent, such as Horne vs. Flores, we contended that the scrutiny should ask whether the claimed exercise of power is proportionate to and congruent with regulating actual interstate commerce to ensure that the exercise of power did not exceed the principal Commerce Clause power to which it was supposed to be merely incidental. In other words, the case should be allowed to proceed through discovery to assess whether the manufacturing of firearms under the Montana Firearms Freedom Act would, in fact, have a trivial or substantial effect on interstate commerce.
In response, the ever-ironically-named Department of Justice ably presented the standard defense offered by the federal government to just about any constitutional challenge—the argument that Appellants did not have standing to bring their case. Eventually, however, the DOJ urged the Court to rule on the merits and affirm the dismissal of the lawsuit, arguing that comprehensive federal firearms regulations should preempt the Montana Firearms Freedom Act for the same reasons that comprehensive federal drug regulations preempted medical marijuana laws in Raich.
Although dancing away from the question implies a nimbleness that was absent from its argument, the federal government pointedly never grappled with our key argument that Congress’ implied power under the Commerce Clause is limited by state laws that protect constitutional liberties guaranteed by the Second and Ninth Amendments. Nor did the DOJ address the need for heightened scrutiny to ensure that any claim of implied power under the Commerce Clause truly is incidental to the main power of regulating actual interstate commerce. Hopefully, the unusual majority-conservative panel will address these issues—even if the Ninth Circuit does prove to be a way station to the Supreme Court after all.