Dear MSSA Friends, (via email 07/15/2010)
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 Jessica
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 Sullivan, Tabaracci and
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 Goldwater
Institute in 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 Gun Owners Foundation. Herb was
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 Professor Jeff Renz of 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 FFA
Website.
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