727 F.3d 975 (9th Cir. 2013), 10-36094, Montana Shooting Sports Ass'n v. Holder

Docket Nº:10-36094
Citation:727 F.3d 975
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:MONTANA SHOOTING SPORTS ASSOCIATION; SECOND AMENDMENT FOUNDATION, INC.; GARY MARBUT, Plaintiffs-Appellants, v. ERIC H. HOLDER, JR., Attorney General, Defendant-Appellee and STATE OF MONTANA, Intervenor,
Attorney:Quentin M. Rhoades (argued), Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana, for Plaintiffs-Appellants. Mark R. Freeman (argued), Mark B. Stern, and Abby C. Wright, Appellate Staff, Tony West, Assistant Attorney General, Michael W. Cotter, United States Attorney, United States Department ...
Judge Panel:Before: A. Wallace Tashima, Richard R. Clifton, and Carlos T. Bea, Circuit Judges. Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Bea. Carlos T. Bea (In Part) BEA, Circuit Judge, concurring in part and dissenting in part:
Case Date:August 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 975

727 F.3d 975 (9th Cir. 2013)

MONTANA SHOOTING SPORTS ASSOCIATION; SECOND AMENDMENT FOUNDATION, INC.; GARY MARBUT, Plaintiffs-Appellants,

and

STATE OF MONTANA, Intervenor,

v.

ERIC H. HOLDER, JR., Attorney General, Defendant-Appellee

No. 10-36094

United States Court of Appeals, Ninth Circuit

August 23, 2013

Argued and Submitted, Portland, Oregon March 4, 2013.

Page 976

Appeal from the United States District Court for the District of Montana. D.C. No. 9:09-cv-00147-DWM. Donald W. Molloy, District Judge, Presiding.

AFFIRMED.

Quentin M. Rhoades (argued), Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana, for Plaintiffs-Appellants.

Mark R. Freeman (argued), Mark B. Stern, and Abby C. Wright, Appellate Staff, Tony West, Assistant Attorney General, Michael W. Cotter, United States Attorney, United States Department of Justice, Civil Division, Washington, D.C. for Defendant-Appellee.

Nicholas C. Dranias (argued), Goldwater Institute, Phoenix, Arizona; Timothy C. Fox, Gough, Shanahan, Johnson & Waterman, Helena, Montana; and Ilya Shapiro, Cato Institute, Washington, D.C., for Amici Curiae The Goldwater Institute and Cato Institute.

Steve Bullock, Montana Attorney General; Zach Zipfel, Assistant Attorney General, Helena, Montana, for Amicus Curiae State of Montana.

Joseph W. Miller, Law Offices of Joseph Miller, LLC, Fairbanks, Alaska; Gary G. Kreep, United States Justice Foundation, Ramona, California; Herbert W. Titus, William J. Olson, John S. Miles, and Jeremiah L. Morgan, William J. Olson, P.C., Vienna, Virginia, for Amici Curiae Gun Owners of America, Inc., Gun Owners Foundation, and Virginia Citizens Defense League.

John E. Bloomquist, Doney Crowley Bloomquist Payne Uda P.C., Helena, Montana, for Amicus Curiae Weapons Collectors Society of Montana.

Timothy Baldwin, Kalispell, Montana, for Amici Curiae Thirty Montana Legislators.

Jonathan E. Lowy and Daniel Vice, Brady Center to Prevent Gun Violence, Washington, D.C.; Gil N. Peles and Noemi A. Blasutta, Proskauer Rose LLP, Los Angeles, California, for Amici Curiae Brady Center to Prevent Gun Violence, International Brotherhood of Police Officers, Hispanic American Police Command Officers Association, National Black Police Association, National Network to End Domestic Violence, Montana Human Rights Network, and Legal Community Against Violence.

Mark L. Shurtleff, Attorney General, Salt Lake City, Utah; John J. Burns, Attorney General, Juneau, Alaska; Lawrence G. Wasden, Attorney General, Boise, Idaho; Bill Schuette, Attorney General, Lansing, Michigan; Jon Bruning, Attorney General, Lincoln, Nebraska; Alan Wilson, Attorney General, Columbia, South Carolina; Marty J. Jackley, Attorney General, Pierre, South Dakota; Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia; Gregory A. Phillips, Attorney General, Cheyenne, Wyoming, for Amici Curiae States of Utah, Alaska, Idaho, Michigan, Nebraska, South Carolina, South Dakota, West Virginia, and Wyoming.

Sharon L. Browne and Adam R. Pomeroy, Pacific Legal Foundation, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.

Anthony T. Caso, John C. Eastman, Karen J. Lugo, and David Llewellyn, Center for Constitutional Jurisprudence, Orange, California, for Amici Curiae Center for Constitutional Jurisprudence and Fifteen State Legislators.

Before: A. Wallace Tashima, Richard R. Clifton, and Carlos T. Bea, Circuit Judges. Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Bea.

SUMMARY[*]

Civil Rights

The panel affirmed the district court's dismissal, for failure to state a claim, of an action brought by Gary Marbut, the Montana Shooting Sports Association, and the Second Amendment Foundation challenging federal firearms regulations.

Plaintiff Marbut sought to manufacture firearms under the Montana Firearms Freedom Act (MFFA), state legislation that declared that the manufacture and sale of certain firearms within the state was beyond the scope of Congress's commerce power. The panel first held that Marbut had standing on account of economic injury. The panel then held that the complaint failed to state a claim in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), and United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006), and that Congress could rationally conclude that unlicensed firearms made in Montana would make their way into the interstate market. The panel held that the MFFA was necessarily preempted and invalid.

Concurring in part and dissenting in part, Jude Bea agreed with the majority's conclusion that Marbut was subject to federal licensing laws. He stated that it was unnecessary for the majority to hold that the MFFA was preempted by federal law.

Page 977

OPINION

CLIFTON, Circuit Judge:

Plaintiffs Gary Marbut, the Montana Shooting Sports Association, and the Second Amendment Foundation appeal the

Page 978

dismissal of their action challenging federal firearms regulations. Marbut wants to manufacture firearms under the Montana Firearms Freedom Act, state legislation that declares that the manufacture and sale of certain firearms within the state is beyond the scope of Congress's commerce power. The district court dismissed the action because no plaintiff had standing to bring the claim and, in the alternative, because the complaint failed to state a claim in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), and United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006). On appeal, we conclude that Marbut has standing to sue, but we agree with the district court that Marbut has failed to state a claim. Thus, we affirm the judgment.

I. Background

The Montana Legislature passed the Montana Firearms Freedom Act (" MFFA" or " the Act" ), which declares that a firearm or ammunition " manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words " Made in Montana" be " clearly stamped on a central metallic part." Id. § 30-20-106.

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