Firearms rights advocates asked the U.S. Supreme Court on Monday to overturn the 9th U.S. Circuit Court of Appeals’ ruling against a Montana state law designed to circumvent federal firearms laws.  The law passed in 2009 is known as the Montana Firearms Freedom Act which states that federal firearms regulations do not apply to firearms that were manufactured in the state after October 1, 2009, as long as they do not leave the state and are clearly marked “Made in Montana” on the receiver, frame or barrel. States such as Alaska, Arizona, Idaho, Kansas, Tennessee, South Dakota, Utah and Wyoming have passed similar legislation.  The law was drafted by the president of the Montana Shooting Sports Association (MSSA), Gary Marbut. On July 16, 2009, in an open letter to Federal Firearms Licensees based in Montana, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) clarified their position on the law. ATF’s letter states: “The Act conflicts with Federal firearms laws and regulations, Federal law supersedes the Act, and all provisions of the Gun Control Act and the National Firearms Act, and their corresponding regulations, continue to apply.”  On August 24, 2009, the MSSA announced that they were planning on filing a lawsuit against U.S. Attorney General Eric Holder to stop federal regulations from being enforced for the firearms covered under the new state law; particularly a small, bolt-action rifle called the “Montana Buckaroo”, designed for children between the ages of 5 and 10. The rifle was designed by Marbut, who planned to manufacture the rifle for sale in Montana. The case made its way to the 9th U.S. Circuit Court of Appeals and although the court upheld that Marbut can challenge the federal regulation of firearms manufactured, sold and kept inside Montana’s borders, the case did not state a claim. In August 2013, the court asked for a dismissal of the case on these grounds and upheld a lower court’s decision against the case. The plaintiff did not seem to be concerned by the dismissal and said at the time: “This was about as good of a ruling as we could have expected from the Ninth Circuit. We must get to the U.S. Supreme Court to accomplish our goal of overturning 70 years of flawed Supreme Court rulings on the Interstate Commerce Clause.” Marbut has always insisted that his battle with the Federal Government is not based on the Second Amendment, but rather on the Federal Government’s power to regulate interstate commerce: “This is really about states’ rights and federal power rather than gun control. There is an emerging awareness by the people of America that the federal government has gone too far and it is dependent on a really weird interpretation.” The interpretation he is referring to is the 1942 Supreme Court case of Wickard v. Filburn, a decision based on whether the federal government could regulate wheat that a farmer grew for his family and not for sale on the open market. The court ruled that Congress had the power to regulate any activity that could potentially interfere with national policy, namely the price of wheat in this instance. Marbut wants the court to declare that the Wickard case and the subsequent cases that were decided on it were unconstitutional.  Marbut is clearly not alone in this opinion as Utah’s Attorney General Mark Shurtleff, who filed a brief representing 10 states in support of Marbut’s case, says: “it will be tough to get the Wickard decision overturned outright, but clearly, since Wickard, the federal government has gone way beyond its authority. We would like to see that rolled back.” Gun-control advocacy groups state that laws such as the Montana Firearms Freedom Act could allow convicted felons the ability to obtain firearms without undergoing background checks. Firearms rights advocates maintain that the Supreme Court can decide the case because it concerns limiting the Congressional power to regulate firearms. The Supreme Court is expected to decide in 2014 whether or not to hear the case. Orchid Advisors provides electronic newsletter (“Advisory and Alert”) and blogs for general informational purposes only. It should not be considered a formal or informal interpretation of law. It is not intended as professional counsel, should not be considered legal advice and should not be used as such.