| Re: Gun Groups File Lawsuit - Montana Firearms Freedom Act |
« Reply #29 on: Today at 12:42:39 PM »
Fwd: Final Briefs Filed- MSSA v. Holder - Analysis
Dear MSSA Friends,
The last briefs of those supporting our side of MSSA v. Holder have been filed with the Ninth Circuit Court of Appeals. Those include the amici Goldwater Institute (joined by the CATO Institute), Gun Owners Foundation (joined by the U.S. Justice Foundation), and the State of Montana. These additional briefs should soon be posted to and available to peruse at:
Next, the U.S. DoJ (Holder) will submit its reply brief, rebutting arguments made in Appellants' (MSSA, SAF and myself) Principle Brief, and the briefs of various supporting amici (friends of us or of the Court). Then, any amici may submit briefs supporting the U.S. position (the Brady Center for Whatever submitted an opposing brief at the District Court rehashing their standard, anti-gun rhetoric). Then, Appellants (us again) will have the opportunity to submit a reply brief, rebutting arguments made by the U.S.
The case on appeal will then be assigned to a three-judge panel of the Ninth Circuit. The Ninth is the busiest federal appeals court in the U.S., and simply doesn't have the time or resources to hear cases en banc (full court). Oral argument may or may not be requested by the Court. The decision of this three-judge panel will carry the full weight of a Ninth Circuit decision, although a motion for en banc review of the three-judge panel decision would then be ripe and might be a possibility down the road.
Remember, the purpose of MSSA v. Holder is to validate the principles of the Montana Firearms Freedom Act, and by doing so to BOTH breathe effective life back into the Ninth and Tenth Amendments AND to roll back federal power claimed under the guise of regulating "commerce" "among the several states" (the Commerce Clause of the U.S. Constitution) - generally to set precedent for states' rights and state sovereignty.
What can the Ninth Circuit do with MSSA v. Holder? There are many options. They can remand back to the District Court for an actual trial on the merits of the case (the case was dismissed by the District Court prior to trial, which dismissal is now the subject of the appeal to the Ninth). They can uphold the dismissal, upon which we would have the alternatives of moving for an en banc review or of appealing to the U.S. Supreme Court (where we actually need to get with this lawsuit). The Ninth could give us a win on merit while upholding our standing and jurisdiction (unlikely, but in which the U.S. would probably appeal to the USSC). The Ninth could also give us a partial win and partial loss, while also recognizing that we have standing and jurisdiction. While there is absolutely no way to actually predict what the Ninth will do with MSSA v. Holder, the two most likely options are probably to either uphold the District Court's dismissal, or to reverse the District Court's dismissal and remand the case to the District Court for actual trial.
Regardless, it's a fascinating exercise in liberty, and will (has already) ratchet up the national dialog about the import of the Tenth Amendment.
Stay tuned ... "May you live in interesting times." (Old Chinese curse.)
Gary Marbut, president
Montana Shooting Sports Association
author, Gun Laws of Montana