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A Gun Activist Takes Aim at U.S. Regulatory Power
wsj.com ^ | 14 July, 2011 | JESS BRAVIN

Posted on 07/14/2011 4:41:12 AM PDT by marktwain

MISSOULA, Mont.—With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.

He's not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.

For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.

Eight states have adopted his Firearms Freedom Act, which Mr. Marbut conceived as a vehicle to undermine federal authority over commerce.

Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.

Mr. Marbut isn't basing his pro-gun effort on the Second Amendment, the one that talks about a right to bear arms, but on the 10th, which discusses the limits of federal power.

"This is really about states' rights and federal power rather than gun control," Mr. Marbut says. There is "an emerging awareness by the people of America that the federal government has gone too far," he maintains, "and it's dependent on a really weird interpretation."

He is talking about the 1942 Supreme Court case of Wickard v. Filburn, which looms for him the way the Dred Scott decision denying rights to blacks did to antebellum abolitionists.

(Excerpt) Read more at online.wsj.com ...


TOPICS: Constitution/Conservatism; Front Page News; Government; News/Current Events; Politics/Elections; US: Montana
KEYWORDS: 10thamendment; banglist; commerceclause; constitution; marbut; montana; statesrights
Wickard v. Filburn is at the heart of the modern regulatory state. The author of the article neglects a whole raft of supreme court precident that was overruled by the Wickard decision.

It was a revolutionary decision at the time, coming from the revolutionary Roosevelt new deal court.

1 posted on 07/14/2011 4:41:23 AM PDT by marktwain
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To: marktwain
A few years ago I read Amity Shlaes' "The Forgotten Man." In response to Wickard, she quoted a law professor as saying it didn't pass the giggle test. It still doesn't.

There is nothing in the Constitutional Convention record to support, and everything to oppose Wickard, as I show Here.

The Constitution still means what it says. We can return.

2 posted on 07/14/2011 4:53:40 AM PDT by Jacquerie (It is only in the context of Natural Law that our Declaration and Constitution form a coherent whole)
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To: Jacquerie

I certainly hope you’re right. The opportunity to “return” is at hand.


3 posted on 07/14/2011 5:02:26 AM PDT by Eric in the Ozarks (Eh ?)
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To: marktwain

Here are the details of what he has in mind in .pdf format:

http://firearmsfreedomact.com/updates/86.6%20Buckaroo%20Report%20-%20Exhibit%20C%20to%20Declaration.pdf

Case 9:09-cv-00147-DWM-JCL Document 86-6

Filed 06/02/10 Page 1 of 5

B.I.T. Enterprises

Montana Buckaroo

A youth model, single shot, bolt-action .22 Caliber rifle To be manufactured pursuant to the Montana Firearms Freedom Act

by

B.I.T. Enterprises
P.O. Box 16106
Missoula, Montana 59808

Design characteristics

Action type. Several different action types were considered, included break-open, falling-block, and bolt-action. A bolt-action design with a manually-operated cocking device was selected both because if its suitability for young shooters and because of simplicity of production.

Models.

Many different models were reviewed for design suitability. The brands/models under final consideration for design influence for the Buckaroo included:

1. Chipmunk (now produced as the Crickett);
2. Remington Model 514;
3. Winchester Model 67A; and
4. Remington Model 33. (in order in the photo below, top to bottom)

.......more


4 posted on 07/14/2011 5:33:20 AM PDT by Texas Fossil (Government, even in its best state is but a necessary evil; in its worst state an intolerable one)
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To: marktwain

Head Of Montana Shooting Sports Association Proposes Manufacture Of Youth Rifle

February 10, 2010

http://montanahuntingtoday.com/blog/index.php/2010/02/10/head-of-montana-shooting-sports-association-proposes-manufacture-of-youth-rifle/

Gary Marbut, President of the Montana Shooting Sports Association and lone plaintiff in MSSA v. Holder, has proposed the manufacture of a youth .22 caliber rifle if the Montana Firearms Freedom Act actually becomes laws. It will be called the Montana Buckaroo.

The Montana Firearms Freedom Act was actually signed into law by Montana Gov. Brian Schweitzer last year. The law states that any firearm or firearm accessory that is manufactured in Montana and is sold in Montana cannot be regulated by the Federal Government. Marbut’s proposed manufacturing of this youth rifle would fall under the rules of such a law.

However, MSSA v. Holder, is scheduled to be heard in court later this year. MSSA took the initiative to request a court hearing to get a judgment on the constitutionality of this law. MSSA is prepared to go all the way to the United States Supreme Court if necessary. In the meantime, Holder is requesting that the case be dismissed on the grounds that Gary Marbut does not have legal standing to sue. Marbut claims he does and part of that proof is his plans to manufacture and market the Montana Buckaroo.

There are now 22 states that have passed or proposed similar laws to the Montana Firearms Freedom Act. You can learn more about those by visiting Firearms Freedom Act.


5 posted on 07/14/2011 5:42:05 AM PDT by Texas Fossil (Government, even in its best state is but a necessary evil; in its worst state an intolerable one)
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To: marktwain

The National Firarms Act of 1934 stipulates a tax, not gun control.

That’s their loophole.


6 posted on 07/14/2011 5:59:12 AM PDT by Yo-Yo (Is the /sarc tag really necessary?)
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To: marktwain
It was a revolutionary decision at the time, coming from the revolutionary Roosevelt new deal court.

Who were chastened by Roosevelt's threats to render them irrelevant following proper and Constitutional rulings striking down his collectivist leavings.

7 posted on 07/14/2011 6:18:01 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

Wickard lies at the heart of the last 60 years worth of FedGov over-reach and has cost us countless lives, untold amounts of money in lost productivity, and freedom.


8 posted on 07/14/2011 6:47:12 AM PDT by Dead Corpse (explosive bolts, ten thousand volts at a million miles an hour)
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Comment #9 Removed by Moderator

To: marktwain

This is actually a pretty damn good idea. Stir up old SCOTUS cases for a re-hearing under a Conservative-leaning bench and try to invalidate the laws that turned this ship around in the first place.

Perhaps by unraveling the knot at the core instead of one tiny knot at a time, we’ll be able to shutdown the Socialist Progressives.


10 posted on 07/14/2011 11:03:49 AM PDT by rarestia (It's time to water the Tree of Liberty.)
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To: marktwain
Hasn't even Alito affirmed the premise of Wickard?
11 posted on 07/14/2011 11:11:49 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Yo-Yo
-- The National Firarms Act of 1934 stipulates a tax, not gun control.
That's their loophole.
--

In 1938 of '39, a federal court found the 1934 NFA unconstitutional in light of the 2nd amendment. The US Supreme Court reviewed that in US v. Miller, 307 U.S. 174 (1939), and said that finding the 1934 NFA unconstitutional was unsupported by the available evidence, but that it would be unconstitutional to apply the tax to a weapon that "has some reasonable relationship to the preservation or efficiency of a well regulated militia [or] is any part of the ordinary military equipment or that its use could contribute to the common defense."

The federal courts simply refused to follow the binding precedent.

Same with the Presser precedent.

12 posted on 07/14/2011 11:34:14 AM PDT by Cboldt
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To: MileHi
-- Hasn't even Alito affirmed the premise of Wickard? --

I assume so. Scalia has, in the Reynolds (CA firearm - homemade machinegun that never left the state) and Raich cases.

Funny thing about he Wickard case, the logic for its legal conclusion (Farmer Filburn affects interstate commerce if he is allowed to grow and consume his own wheat) is totally undermined by its factual findings (Filburn could have avoided the penalty by feeding it to his livestock without threshing it first).

13 posted on 07/14/2011 11:38:40 AM PDT by Cboldt
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To: Cboldt
Those are the cases I was thinking of. I remember being disheartened that Alito didn't use those chances to roll back commerce abuses.
14 posted on 07/14/2011 11:51:40 AM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Cboldt
The US Supreme Court reviewed that in US v. Miller, 307 U.S. 174 (1939), and said that finding the 1934 NFA unconstitutional was unsupported by the available evidence, but that it would be unconstitutional to apply the tax to a weapon that "has some reasonable relationship to the preservation or efficiency of a well regulated militia [or] is any part of the ordinary military equipment or that its use could contribute to the common defense."

Complete ruling: Unted States v. Miller

Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment."

But Mr. Miller's counsel didn't appear to argue the other side of the case, the weapon in question was a short barreled shotgun not an automatic weapon, and I believe that by the time the Supreme Court heard this case Mr. Miller had met an untimely death.

15 posted on 07/14/2011 12:38:29 PM PDT by Yo-Yo (Is the /sarc tag really necessary?)
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To: Yo-Yo
-- Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment." --

That's what they did, in a sense. They said that the decision below should be upheld (reinstated, whatever), if there was evidence of that nature. In order to provide for the entry of evidence, they had to reverse the decision below, where the indictment was quashed, because without a proceeding, there was no place for the judiciary to obtain evidence.

-- Mr. Miller's counsel didn't appear to argue the other side of the case, the weapon in question was a short barreled shotgun not an automatic weapon ... --

Yes, and the short barrel shotgun had widespread use by then, and similar had long been in use (blunderbuss) as military and defensive weapons. Bigtime use in trench warfare in WWI.

-- I believe that by the time the Supreme Court heard this case Mr. Miller had met an untimely death. --

He was a no show, and I think you are right, he was a no show because he was dead.

That said, the precedent is chronically misread and misapplied. Scalia did so in the Heller case; at first saying Miller's conviction was upheld! Ummm, Miller was NEVER convicted. The indictment against him was quashed.

16 posted on 07/14/2011 12:48:27 PM PDT by Cboldt
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To: 17th Miss Regt; 2001convSVT; 2ndDivisionVet; A_Former_Democrat; A_Tradition_Continues; ...

Montana to federales, again: Get your grubby paws off my Constitution!





Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.

If you want on or off the ping list just say the word.

Additional Resources:

Tenth Amendment Chronicles Thread
Tenth Amendment Center
Firearms Freedom Act
Health Care Nullification

CLICK HERE TO FIND YOUR STATE REPRESENTATIVES

17 posted on 07/14/2011 1:01:14 PM PDT by ForGod'sSake (You have only two choices: SUBMIT or RESIST with everything you've got!!!)
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To: Yo-Yo
-- Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment." --

Another favorite of mine is Presser v. Illinois, 116 U.S. 252 (1886), which is essentially a case about the constitutionality of parade permit laws. Presser argued that he didn't need a parade permit, if his parade was marching with guns.

Within that case are two statements that appear to contradict each other.

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that [the 2nd] amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
vs.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the [federal] government, as well as of its general powers, the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Now, and honest citation to Presser would account for all of this; but the Federal Courts have, as far as know 100% of the time, selected only the 1st section for citation; and used it to support the proposition that a state MAY prohibit the people from keeping and bearing arms.

The 2nd Circuit, in Bach v. Pataki, 408 F.3d 75 (2005), held that Presser stood for the OPPOSITE of what Presser says.

Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at 730-31 (9th Cir.). Just as Presser had no federal constitutional right "to keep and bear arms" with which to challenge Illinois's license requirement, Bach has none to assert against New York's regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.

As far as the RKBA goes, the courts are totally corrupt; evidenced by their own words.

18 posted on 07/14/2011 1:01:29 PM PDT by Cboldt
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To: marktwain
The author of the article neglects a whole raft of supreme court precident that was overruled by the Wickard decision.

What he's rejecting is the notion that once a constitutional principal has been violated, we are bound by precedent to go right on violating it forever.

I say "Good on him!". I'll take all of that there is to be had.

19 posted on 07/14/2011 1:11:12 PM PDT by tacticalogic
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To: rarestia
Perhaps by unraveling the knot at the core instead of one tiny knot at a time, we’ll be able to shutdown the Socialist Progressives.

Sort of like Alexander's solution to the Gordian knot?

20 posted on 07/14/2011 1:48:29 PM PDT by Bloody Sam Roberts (If you think it's time to bury your weapons.....it's time to dig them up.)
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To: Bloody Sam Roberts

Provided the swordsman is a Conservative, that would work!


21 posted on 07/14/2011 2:04:33 PM PDT by rarestia (It's time to water the Tree of Liberty.)
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To: Cboldt
That said, the precedent is chronically misread and misapplied. Scalia did so in the Heller case; at first saying Miller's conviction was upheld! Ummm, Miller was NEVER convicted. The indictment against him was quashed.

It's really bizarre. These are presumably the nine sharpest jurists we can find, and if you listen to Scalia talk, he's unquestionably a very smart guy. So what the hell gives with this kind of stuff? I can see errors in reasoning, especially from progressives, but to misstate simple historical fact, particularly in a field in which one is supposedly at the top of the heap? What the hell?

22 posted on 07/14/2011 2:05:49 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: tacticalogic
What he's rejecting is the notion that once a constitutional principal has been violated, we are bound by precedent to go right on violating it forever.

Yeah, if the previous correct interpretation didn't even count as binding precedent, I hardly see how the wrong one can claim to be. "Stare Decisis" is Latin for "Staring at idiots".

23 posted on 07/14/2011 2:29:09 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: ForGod'sSake

Here’s a way to defeat the gun grabbers with the proper amendment since they’re ignoring the other one.


24 posted on 07/14/2011 7:02:39 PM PDT by TheOldLady (FReepmail me to get ON or OFF the ZOT LIGHTNING ping list.)
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To: TheOldLady
Indeed it is ONE way to battle the feral beast, AND better late than never I might add. We've almost allowed our heritage and our way of life to slip away from us. Entrusted with the best system of self governnance ever devised by Man, we have very nearly squandered our Founders' hard won gift. It will be to our eternal shame if we don't wake up in time to set things aright. Given the extent of the rot in our institutions, it is a tall order, and one not likely to be quickly accomplished.
25 posted on 07/14/2011 9:23:41 PM PDT by ForGod'sSake (You have only two choices: SUBMIT or RESIST with everything you've got!!!)
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To: ForGod'sSake

[nodding]

I’ve thought the same for quite a while now.

We have a long row to hoe.


26 posted on 07/15/2011 6:30:37 AM PDT by TheOldLady (FReepmail me to get ON or OFF the ZOT LIGHTNING ping list.)
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To: marktwain

“Wickard v. Filburn is at the heart of the modern regulatory state. The author of the article neglects a whole raft of supreme court precident that was overruled by the Wickard decision.

It was a revolutionary decision at the time, coming from the revolutionary Roosevelt new deal court.”

This is true by all rights, and all evidence Wickard v. Filburn was decided by corrupt federal employees in black robes most of whome were hand picked by corrupt self-serving politician.

Wickard v. Filburn rejected all presidence, and law in favor of the nearly unrestrained power of the appointee of this “court”.

There is no possible sound reasons any just court could fairly decide that Wickard v. Filburn was in any respect correct. This revolution in the Federal Employees overturning what was left in the Federal Constitution must be abolished by any means necessary.

I fear it may take a real Revolution, a compete revolution of the people to undo his unmitigated power grabbing usurpation.


27 posted on 07/19/2011 9:55:48 PM PDT by Monorprise
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To: Cboldt

“Funny thing about he Wickard case, the logic for its legal conclusion (Farmer Filburn affects interstate commerce if he is allowed to grow and consume his own wheat) is totally undermined by its factual findings (Filburn could have avoided the penalty by feeding it to his livestock without threshing it first).”

When it comes to Federal employee rulings, nether logic nor law are permissible excuses to stand in the way of the leftist goals of absolute and total power over everything.

I would say this is a leftist phenomenon but it has been known to happen on the right as well, as proven by Ex parte Young. http://en.wikipedia.org/wiki/Ex_parte_Young

Totalitarians/socialist in the Government play both sides of the spectrum to advance the cause of greater and greater goverment.

The fact that your more likely to die or retire then be fired as a Federal employee only serves to bolster their incentive to advance the power of that same government. Still if we are going to successfully downsize this Leviathan we must divide it against itself.

Our traditional and well reasoned allies in the Military bureaucracy should continue to be allies. Ironically they are the most easily accepting of cuts. The truth is we need them and we need to remove their threat at the same time. The only way we Americans can do that is to transfer as many of them as possible to their respective State militia’s.

With their officers and training appointed and conducted by the States, they will be very much more disinclined and mispositioned to follow federal orders in levying war against the same.


I know nobody wants to talk about theses prospects. But in order to avoid them we must be prepared to confront them. That preparation must begin here and now while we still can, before they fully catch on to whats coming.

Once direct force is off the table for the power hungry federal officials, they will be forced to either argue on merits or attempt to set us against each other, as they did in the antebellum period.

In either case the superior information distribution afforded to us by modern technology grants us an extraordinary fighting chance to win that fight.

But to even get into this position we must fix the board, we must move resources into the proper positions where they are either useless to our enemy’s or useful to ourselfs when and if the time comes. Downsizing the federal army and air-force and transferring its assets and personnel to the various State National Guards (while using the A1S8C16 power to purge the same of disloyal officers) is a perfect way to help rig the board of force in our favor.

Thus rendering that force useless to our enemy’s and potentially useful to ourselfs if need be.


28 posted on 07/19/2011 11:14:59 PM PDT by Monorprise
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