Gary Marbut asked me to post this rebuttal.
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Hold the Fort - Don't Surrender So Quickly
by Gary Marbut, President
Montana Shooting Sports Association
New Hampshire attorney E.F. Nappen writes that the Firearms Freedom Acts being introduced and enacted in various states are subject to " The Achilles Heels of the Firearms Freedom Act." He argues that the inclusion of NFA (National Firearms Act) items (e.g., suppressors or short-barreled rifles) in the asserted exemption from federal authority will cause the Acts to fail in court because the NFA regulates under federal tax power, not federal commerce clause power.
Of course Nappen is correct to assert that getting the permission of federal judges in approval of the Acts will be a difficult exercise. The federal government (including its judicial branch) doesn't surrender power readily.
As the author of the original Montana Firearms Freedom Act (MFFA) that is being cloned around the Nation, I've long known that litigating the MFFA would be a chancy proposition. But, I believe, there is more to hope for than Nappen credits.
Addressing Nappen's concern about NFA items, it is true that the NFA purports to be founded in the power given to Congress in the Constitution to tax. However, there are two sorts of taxes: 1) Those enacted and implemented primarily to raise revenue, and 2) those enacted and implemented to affect commerce. The federal excise tax on firearms and ammunition is clearly the former sort, since it raises millions of dollars the feds dole out to the states for wildlife management. The various firearms freedoms acts do not challenge or affect this genuine revenue raising. It is expected that if litigation under the MFFA is successful, it will still leave the excise tax on state-made and state-retained firearms and ammunition in place, and makers will likely remain liable for this tax.
The taxes levied under the NFA, however, are of the second sort, intended primarily to affect (restrict) commerce in these items. The NFA probably brings in less revenue than the cost of enforcement, so it's probably a net loss to the federal government. Therefore, although it may claim to be done under Congress's tax power, that claim will fail and the fall-back position of the federal government will be Congress's authority to regulate commerce "among the states." Thus, NFA-asserted tax power would actually fall exactly under the commerce clause power challenge that is the core of the MFFA and its clones around the U.S.
Also, it's helpful to keep in mind that the MFFA and its clones are really a states' rights exercise, a challenge to federal commerce clause power on Tenth Amendment and other grounds. It is more about federal power than firearms. States' rights are the subject; firearms are the object.
The Montana Shooting Sports Association has filed its promised legal challenge over the MFFA in federal court. The most powerful card we have to play is "emerging consensus," judicial jargon for "There are mobs of peasants at the palace gates bearing pitchforks and torches and we'd better pay attention to what they want." That two states have enacted Firearms Freedom Acts, eight states have introduced them, and 20 other states are poised to introduce their own is an "emerging consensus" that the federal judiciary probably won't actively acknowledge, but that those in the black robes will be aware of and pay attention to.
Does this mean that litigating the MFFA will be a slam-dunk? Absolutely not! Nappen is correct that the barriers are high and well-established. Still, it's high time for this challenge to be mounted. Nappen would serve us all better by charging his legal musket than by being so ready to concede the field to the other side.
From Nappen's Website: "Aggressive fighting for the right is the noblest sport the world affords." Theodore Roosevelt
Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com
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A dangerous game
Should "town hall terrorists...be declared enemy combatants and bundled off to Bagram with the stroke of a pen"? Ted Rall thinks protests from the political right are cause for "suspending civil rights." And other famous names in the media are right there helping undermine the Second Amendment and demonizing its advocates.
"The Most Dangerous Game" is my Jan. 2010 Rights Watch column for Guns Magazine.
Click here to read it.
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Comments
Not to nitpick or detract from the message of the article, but only people have rights. States have powers.
I hope this wins, big time... I've been considering moving to Montana for awhile now...
The power to tax is the power to destroy. Until that power is eliminated, the destruction will continue.
Nice article, thanks! Living in Cali one just has to look with envy at the Montana and Tennessee legislatures and their support of gun ownership.
I'm with Gary Marbut on this one. I know Evan slightly, he's a fine attorney. But he's focussing on court-room realities that will cost his clients liberty and money, not the larger political situation. That's been the problem for years, really.
I've long felt we could accomplish a lot more in the courts than most lawyers believe. By exactly the sort of exercise MSSA has set up with the FFA. The legal system is heavily rigged against freedom - but they generally do not want to go on record. What we have to always do is set up cases where to rule against freedom will have to be done so blatantly that they are backed into the corner and forced to actually follow the Constitution, not how they REALLY want to rule.
Not a major risk, really, because if they rule against us it convinces more people we're right. (shrug) Creeping tyranny is happening anyway, may as well confront it anywhere and everywhere we can.
Mt's legal challenge will fail, but this is a necessary process. Down the road, when the Feds must be dealt with, our actions will be clearly justified by the Feds' open criminality and disrespect for the law in the courts. This is one of several "olive branch petitions" yet to come, I'm sure of it.
"To prove this, let facts be submitted to a candid world", eh? Worked last time I guess. I rather suspect the FFA is going to work out like the Medical Marijauna fight. They lost a lot of court cases, but the feds ended up dropping enforcement efforts. As Gary Marbut so profoundly put it, this battle is not about guns, nor are any of the other fights in the war for freedom about THEIR specific subject - it is all about power, pure and simple.
"The legal system is heavily rigged against freedom - but they generally do not want to go on record. What we have to always do is set up cases where to rule against freedom will have to be done so blatantly that they are backed into the corner and forced to actually follow the Constitution"
I hope it works that way, but recent examples suggest it won't. Kelo was on record, and it was blatant. The federal government wasn't backed into any corner. There was great national grumbling, but fewer than half the states actually enacted any meaningful reform against their own eminent domain laws. The furor quieted down, and now it's back to political business as usual.
Just as surely as the Thirteenth Amendment removed any protections of chattel slavery found in the body of the 1787 Constitution, the Second Amendment removes "arms" from any infringement enacted under the authority of the Commerce Clause, the Taxation Clause, or the Necessary and Proper Clause. Read the preamble to the Bill of Rights. Those articles, including the Second Amendment, were adopted to "prevent misconstruction and abuse of power" by the national government. If a poll tax is an infringement on the right to vote, then a firearms tax is an infringement on the right to keep and bear arms. The only Supreme Court ruling (US v. Miller) to address the NFA never said the Federal Government has the right to regulate firearms in the manner it claims to do. Read the ruling. This is exactly the argument I am making in my challenge to the NFA and all gun laws, Hamblen v. US, set for oral arguments Dec 4, 2009 in the Sixth Circuit. Contact me at rahamblen@gmail.com for more details.
Didn't know the main component of a right could be directly taxed. That's what the NFA is, a direct tax upon a required instrument that must be attained in order to effectuate the right. At least with SBS's and SBR's which are not "dangerous and unusual"....I predict failure with their current strategy.
I hope they do listen to the pitch-forked mobs.
Make the court understand that their power to rule is limited by our consent to respect them as legitimate and that this consent of the governed is not so unlimited as to permit them to so blatantly ignored the text of the law they rule on. That is the secondary propose of all such challenges in court if we cannot convince them to do the right thing, they must be made aware of the consequence of doing the wrong thing, as to grant them self and their federal appointing masters ever more usurped power.
Make then aware that this bottle of the consent of the governed has just about been pushed to its limits by this long chain of their abuses and usurpations, leading to ever growing and greater degrees of tyranny upon we the people.
Let them know that our patency for these usurpation wears increasingly thin and that their arrogant of power as a consequence treads on ever thinner ice.
Let them know that they now risk losing everything if they continue to push us.
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