Fwd: Report - Oral argument; MSSA v Holder US Motion to Dismiss
From: Gary Marbut-MSSA
To: mssa@mtssa.org
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
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
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
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
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
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
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.
Best wishes,
Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com
Re: Gun Groups File Lawsuit - Montana Firearms Freedom Act
« Reply #10 on: July 18, 2010, 02:23:00 AM »
Fwd: Some comments - MSSA v. Holder hearing
From: Gary Marbut-MSSA
To: mssa@mtssa.org
FYI.
Here are some comments by some folks who attended the oral argument
hearing in MSSA v. Holder on Thursday. I expect some other comments
to come in and I will post those as they become available, so check
back. There are pictures here too.
http://marbut.com/MSSAHolderHearing/
Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com
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