Federalism & Limited Government & Second Amendment

Montana Shooting Sports Association v. Holder (2013)

  • May 17 2018

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Whether the intrastate manufacture and sale of firearms is beyond the scope of Congress’s power to regulate interstate commerce, including federal manufacturing and licensing requirements.


The Interstate Commerce Clause of the Constitution reads that Congress shall have power to regulate commerce “among the several states.” Since the New Deal Era, however, the Supreme Court has held that Congress’s power to regulate commerce, even when contained within a single state, is virtually unlimited. In 2009 the Montana legislature passed the Montana Firearms Freedom Act MFFA, which read that a “personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately 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 to regulate interstate commerce.”

Firearm manufacturer and salesman Gary Marbut wanted to produce a .22-caliber rifle along these lines. He had ready the firearm design, machinery, and a list of potential customers who had agreed to buy the firearm should the MFFA be considered constitutional. He asked the Bureau of Alcohol, Tobacco, and Firearms ATF for legal guidance, and the agency informed him that the federal firearm regulations superseded the state law, and he could be held criminally liable for failing to comply with federal manufacturing and licensing laws, which required fees, background checks, and adherence to other regulations. Nonetheless, Marbut wanted to produce and sell the firearm in accordance with the MFFA only.

Marbut, the Montana Shooting Sports Association MSSA, and others brought suit, claiming that the threat of federal criminal prosecution was effectively preventing them from exercising their constitutional rights. Congress lacked the power to regulate such intrastate commerce, they claimed, and under the Ninth and 10th Amendments, the people and states had reserved to themselves the right and powers to practice and regulate such activity without federal interference. Further, because these regulations affected the keeping and bearing of firearms, a fundamental right according to the Court’s holding in McDonald v. Chicago 2010, Marbut argued that federal firearms regulations should be held to the judicial standard of strict scrutiny.

Court Below

The United States District Court for the District of Montana was the first to hear the case. It held MSSA and Marbut lacked standing, the court lacked subject-matter jurisdiction, and the plaintiffs had failed to state a claim upon which relief may be granted. It dismissed the case in its entirety. See the opinion here:

Montana Shooting Sports Association v. Holder, No. CV 09-147-M-DWM-JCL D. Montana, 2010

The plaintiffs appealed to the Ninth Circuit. Although it held that the plaintiffs had standing—indeed, Marbut showed that the existing federal laws prohibited a business he would have otherwise engaged in—the court similarly dismissed the case for the plaintiff’s failure to state a claim. See the opinion here:

Montana Shooting Sports Association v. Holder, 727 F.3d 975 9th Cir., 2013

Question before the District Court of Montana

“[T]he central question in this case is whether Congress has the power to regulate those activities the [Montana Firearms Freedom] Act purportedly exempts from federal law, namely, the intrastate manufacture and sale of firearms, firearms accessories, and ammunition.”

CCJ filed an amicus curiae brief in the Ninth Circuit in support of Montana Shooting Sports Association


The Framers created a system of dual sovereignty under which the federal government was granted limited powers. This system underpins the Constitution and is most visible in the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  James Madison wrote in Federalist No. 45 that the federal government has the delegated authority to regulate interstate commerce, and the states have the authority to regulate intrastate commerce. The Framers believed that the division of governmental power between the state and federal government would protect individual liberty. The Montana Firearms Freedom Act involves the type of intrastate activity that the Framers intended to fall within the states’ general police power. It would therefore not be subject to regulation by the federal government. Allowing federal regulation to preempt the Montana Firearms Freedom Act is inconsistent with the principle of dual sovereignty.

The original intent of the Commerce Clause was not to regulate purely intrastate activity. Its origin lies in the Philadelphia Convention’s attempt to end trade disputes between states under the Articles of Confederation. It is noteworthy that neither the Constitution nor the debates over its ratification give any indication that the people intended Congress’s regulation of commerce to extend to purely intrastate activity. “Commerce” had a limited definition. In Federalist No. 42, James Madison used “commerce” and “trade” interchangeably, demonstrating his view of their equivalency. Thus, the Framers did not intend the term “commerce” to be defined so broadly as to include simple economic or purely intrastate activity. Instead, the Framers intended to grant Congress the power to regulate trade between states, still allowing for states to regulate intrastate activities within their boundaries.

When the purpose of the federal law is neither to preserve nor destroy a national market, the Commerce Clause does not authorize the regulation of purely intrastate activity. The Supreme Court has ruled that this federal power can reach a purely intrastate activity in two instances: Wickard v. Filburn 1937 and Gonzales v. Raich 2005. In these cases, the Supreme Court upheld federal regulation of an intrastate activity under the Commerce Clause when Congress sought either to preserve or destroy a market for a particular commodity. That being said, in both cases the ultimate goal of the Congressional enactment was the regulation of commerce across state boundaries. The federal laws said to preempt the Montana Firearms Freedom Act seek neither to preserve nor destroy a national market. In addition, the firearms manufactured pursuant to the Montana Firearms Freedom Act are not fungible goods like the wheat in Wickard or the marijuana in Raich.

The federal law’s purpose is crime control, which is outside the scope of the Commerce Clause when attempting to regulate intrastate activity. Again, neither Wickard nor Raich is controlling in this circumstance. In United States v. Lopez 1995, the Court held that when the purpose of a law is crime control as applied to intrastate activities, the federal law is outside the scope of the Commerce Clause. The National Firearms Act of 1934 and the Gun Control Act of 1968 are the laws being said to preempt the Montana Firearms Freedom Act. The purpose of both of those laws is crime control. Because the focus is crime control, not regulation of a commodity market, the Commerce Clause does not give Congress the power to preempt Montana’s exercise of its police power.

Congress’ power is to regulate commerce among the states. Congress does not have the power to displace local regulation of intrastate markets for the purpose of controlling local criminal activity. There is nothing in the Montana Firearms Freedom Act that frustrates a Congressional purpose to regulate interstate trade.

Final Outcome

The Ninth Circuit rejected CCJ’s argument, holding that the MFFA is preempted and invalidated by federal firearms regulation pursuant to the Commerce Clause. The State of Montana and the Montana Shooting Sports Association separately appealed to the Supreme Court, but the Supreme Court denied certiorari to both appeals.