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Congress, Interstate Commerce, and the Montana Buckeroo

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Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

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.
Will that dog hunt?  No.
One of the plaintiffs wants to manufacture a .22 rifle called the Montana Buckaroo exclusively for intrastate sale and tell the ATF he doesn't need no steenking federal license.  No dice.

Plaintiffs' efforts to distinguish Raich are not convincing. Plaintiffs argue that Raich, which dealt with Congress's power to regulate marijuana under the Commerce Clause, should be limited to the national defense concerns implicated in the "war on drugs." There is no language in Raich limiting its principles to "national defense" concerns, however, and Raich relies on Wickard v. Filburn, 317 U.S. 111 (1942), which dealt with Congress's power to regulate wheat. See Raich, 545 U.S. at 16. The attempt to read into Raich a distinction between the market for firearms and the market for marijuana has already been rejected by our court, as Stewart held that the principles of Raich apply to the market for firearms.
Hold your fire, gun fans.  I'll defend the Ninth Circuit this time.  They are bound by Supreme Court precedent and have applied it correctly.  Anyone who wants to undermine Wickard and Raich needs to go back to the Supremes.

What about the Second Amendment and D.C. v. Heller?

Finally, plaintiffs have not pursued on appeal any argument that the individual right to bear arms recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), supports a different result.  Even if they had advanced this argument, we have already held that Heller "has absolutely no impact on Stewart's Commerce Clause holding." Henry, 688 F.3d at 642.

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