I have a few moments this morning so thought I had better record my thoughts on the hearing.  I was glad that I was able to attend this very important step in the process.  Each time I attend a judicial event I am amazed at the theatrics that come into play.  This hearing was certainly a classic example of attempts by both sides to manipulate the facts to gain control.

The government built its case on what I have seen many times before.  The three legged stool test was used and in this case the government relied on the leg that establishes injury.  If a plaintiff is unable to show injury, the case without exception throughout history is dismissed.  The plaintiff is relying on the fact that ATF is prepared and has threatened prosecution with a letter stating such as grounds for establishing injury. 

The establishment of standing orders for a product bolsters the position that there is a legitimate factual case here to move forward on the merits of intrastate commerce.  Here the government clearly attempts to establish the “POTENTIAL” for interstate commerce jurisdiction founded in the commerce clause of the constitution.  Therefore, basing their case on potential interstate commerce violations, there is indeed the speculation of a regulatory takings by implication.  Any regulatory takings under the rule of law can be and has been considered as an injury.  (See Hage v. US)

If for instance the government were to initiate a process for the establishment of the legitimate manufacture of a product for intrastate commerce, then there would not be the regulatory takings per se.  In fact, the process itself would make this claim moot leaving an administrative process that is guaranteed under the 1^st, 5^th and 14^th amendments of the constitution providing for due process.  This is not the case, so therefore it is fair to say we have a regulatory takings of rights under several provisions of the constitution. 

The government makes a couple of egregious claims that further violate the constitutional rights of individual citizens of the state.  First, they purport that the MFFA is in violation of the interstate commerce clause by the fact that it is “Unrealistic” to think the weapons manufactured will “NOT” leave the state.  Using the example of a California felon crossing the border into Montana to purchase the weapons manufactured under MFFA is speculative and slanderous at best.  Our federal laws administered under FFA, prohibit the purchase and ownership of firearms by felons.  The government making this claim is overreaching and again violates the due process under the 5^th Amendment.  The assumption that the legitimate business owner Gary Marbut would jeopardize his freedom and right to do business in the state of Montana under MFFA by openly violating the federal firearms act is again slanderous.  It is established in law that one is presumed innocent until proven guilty, and the government is implying guilt in its ill-conceived case against the MFFA.

The impact by McDonald v. Chicago has certainly turned the table in this case.  Establishing the individual right to own and bear arms being reaffirmed, the case by the government that this is not a second amendment issue loses merit.  The attempt to separate the ownership by individuals and the prerequisite of manufacture to enjoy that right falls short.  In the claim by the government that the manufacture of weapons is clearly separate was well argued and should be dismissed by the judge. 

As stated earlier, the regulatory takings is a substantial threat and causes injury.  Here again, the 100s of pages in the FFA are a burden on the operation of existing and potential businesses.  Under the law, ATF demands that any such business must be licensed, and the process itself in the licensing is a factual  threat that is a regulatory takings.  The threat of prosecution by the government is relevant and eminent.  This also can be a direct infringement on the 2^nd Amendment rights of the individual citizens.

The government continues to claim that the plaintiff has no standing, based on the fact that the plaintiff has not established a business that would meet the case law foundation of a pre-existing business.   The government therefore makes the claim that only then would the plaintiff have standing to bring the cause before the court.  Fear of prosecution establishes a factual base for injury to pursue the manufacture of a product.  Therefore, the government itself has through attrition caused the plaintiff to not proceed with the legitimate legal business of building a made in Montana firearm.

The rights of individuals are further violated under the government position.  Under the 10^th amendment of the constitution, the general police power lies with local jurisdiction.  The government has made a claim of supremacy, but without merit.  It is a fact that the authority to enforce all laws ultimately lies with the jurisdiction of the local sheriff.  To usurp this power to the federal government violates the sovereignty of this state and therefore its people.  The government makes the claim that there are no individual rights violated under the 9^th Amendment.  The judge should see right through this shallow claim. 

As stated earlier, the manufacture and sale of firearms is a pre-requisite to exercising the individual right to own and bear arms.  It is acknowledged that there is no case law defining manufacture of arms.  It therefore would be proper and prudent to make the claim that the supreme law of the land includes manufacture of arms by an individual is a founding right.  McDonald and Heller both further that foundation.  The government makes the claim that the plaintiff has not clearly made a claim based on the 2^nd Amendment directly.  The government claim that the plaintiff has used the 2^nd Amendment rights by reference only, and therefore  is grounds for dismissal on that point.  I have to agree with this claim, as the direct assertion of a 2^nd Amendment right violation has not been established showing injury on that point.  I have not seen all the briefs in the case, so there may be a direct claim of 2^nd Amendment rights violation and therefore I would stand corrected. 

The government tries to usurp its power under the supremacy clause.  Under this aspect of the case, we very well produced the claim of dual sovereignty whereas the structural differences in the division of power are well established.  It is not the duty or the right under Article 1 section 8 for the federal government to disrupt the individual states rights and duty to protect individual citizens rights.  In this case, the federal government has no legal standing and cannot exceed that authority through regulations or policies.  The federal government puts itself in making its assumptions in violation of states rights and again due process.

I must make the statement that the representative of Mr. Bullock and the state of Montana may as well have stayed home.  I thought the  case made on behalf of the state of Montana to be very weak.  However, I guess by showing up, there is credit due.

In closing, the government makes its case based on the supremacy clause and the commerce clause.  It is certain in my opinion that we will prevail on the facts of the case to move forward to be heard by the supreme court.  It is only going to be possible to move this forward based on the brilliant case presented by the plaintiffs attorney and those representing the amicus parties to the case.  At the time, I thought there were a bunch of idiots representing our side, as they were contradicting each other and making concessions on the original filing.  However upon thinking about the way our judicial process works I found the ability to create multiple targets for the defense and the judge to consider was ingenious.  Manipulating this case to show multiple targets, will prevent the dismissal based on one single point. 

Tim Ravndal, Coordinator