Text of Complaint filed 10/01/2009
CLICK HERE to download .pdf file of Complaint

Quentin M. Rhoades
State Bar No. 3969
SULLIVAN, TABARACCI & RHOADES, P.C.
1821 South Avenue West, Third Floor
Missoula, Montana 59801
Telephone (406) 721-9700
Facsimile (406) 721-5838
qmr@montanalawyer.com
Pro Querente

COMPLAINT
Cause No. ___________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

Plaintiffs,
MONTANA SHOOTING SPORTS
ASSOCIATION, SECOND
AMENDMENT FOUNDATION,
and GARY MARBUT,

v.

Defendant
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
.
Plaintiffs, Montana Shooting Sports Association, Second Amendment
Foundation, Inc., and Gary Marbut ("PLAINTIFFS"), by and through the
undersigned counsel of record, allege for their Complaint against Eric H.
Holder, Attorney General of the United States of America ("DEFENDANT"),
as follows:
1.  Plaintiff Montana Shooting Sports Association ("MSSA") is a
non-profit corporation organized under the laws of the State of Montana.
The purpose of MSSA is to "support and promote firearm safety, the
shooting sports, hunting, firearm collecting, and personal protection using
firearms, to provide education to its members concerning shooting,
firearms, safety, hunting and the right to keep and bear arms, to own and
or manage one or more shooting facilities for the use of its members and
or others, to conduct such other activities as serves the needs of its
members." MSSA regularly lobbies the Montana Legislature, and its efforts
were instrumental in the passage of the Montana statutes at issue in this
civil action. MSSA has a genuine and viable interest in this case, as its
goals and its existence depends upon the protection of the rights and
interests of its members, and the enforcement of Montana law.

2.  Plaintiff Second Amendment Foundation, Inc. ("SAF"), is a
non-profit membership organization incorporated under the laws of
Washington with its principal place of business in Bellevue, Washington.
SAF has over 650,000 members and supporters nationwide, including
Montana. The purposes of SAF include promoting the exercise of the right
to keep and bear arms, education, research, publishing and legal action
focusing on the Constitutional right to privately own and possess firearms,
and the consequences of gun control.

3.  Plaintiff Gary Marbut is the President of MSSA, a citizen of the
United States, and a resident of Missoula, Montana. Marbut is responsible
for promoting and protecting the interests of MSSA and its members.
Further, as an individual, Marbut desires to manufacture and sell small
arms and small arms ammunition per the Montana Firearms Freedom Act.

4.  Defendant, Eric H. Holder, Jr., is the appointed, qualified,
confirmed, and acting Attorney General and head of the Department of
Justice of the United States of America and, as such, is the official charged
with administering the Unites States Bureau of Alcohol, Tobacco, Firearms
and Explosives ("BATFE"), and enforcement of both the National Firearms
Act ("NFA"), and the Gun Control Act of 1968 ("GCA"). DEFENDANT
maintains his offices as Attorney General in the District of Columbia.

5.  This is an action for declaratory judgment pursuant to 28
U.S.C. §§ 2201 and 2202, and 18 U.S.C. § 925A and is brought for the
purpose of determining a question of actual controversy between the
parties as more fully appears in the complaint below.

6.  Jurisdiction of this action is based generally on 5 U.S.C. § 704
and 28 U.S.C. § 1331. Jurisdiction is expressly conferred on this court by
18 U.S.C. § 925A(2).

7.  Venue for this action is proper pursuant to 28 U.S.C. § 1391(e)
because Plaintiff resides in this district and no real property is involved in
this action.

8.  The Montana Firearms Freedom Act ("MFFA"), House Bill 246
of the 2009 Montana legislative session, whose language is incorporated
herein by this reference, becomes effective today. Its scope is limited to
activity occurring exclusively within the state of Montana.

9.  The activity authorized under the MFFA is primarily political. It
has a commercial element, but the purpose is to allow Montanans who
wish to avoid interference by the United States government in their
legitimate activity (specifically, manufacturing and selling small arms and
small arms ammunition), to do so if they strictly confine such activity to
the political boundaries of their own state. Although there are commercial
elements to the statutory scheme, they are incidental to the material
purpose and function of the MFFA. Passage of the MFFA was an express
exercise by the State of Montana of powers reserved to the states and to
the people under the 10th Amendment of the United States Constitution.
The MFFA is also authorized under the conditions of the compact with the
United States that Montana entered upon admission to the union. The
United States Congress therefore has no authority, under the limited
powers granted to it by the United States Constitution, to preempt the
MFFA.

10.  PLAINTIFF MARBUT wishes to manufacture and sell small arms
and small arms ammunition to customers exclusively in Montana, pursuant
to the MFFA, without complying with the NFA or the GCA, or other
applicable federal laws. MARBUT has sought permission and assurances
from BATFE that he may proceed under MFFA without fear of criminal
prosecution or civil sanction, so long as he strictly confines such activity to
Montana.

11.  PLAINTIFF MSSA and PLAINTIFF SAF have members, along
with other Montana citizens, who wish to manufacture and sell small arms
and small arms ammunition to customers in Montana, pursuant to the
MFFA, without complying with the NFA or the GCA, or other applicable
federal laws.

12.  Like PLAINTIFF MARBUT, other members of PLAINTIFF MSSA
and PLAINTIFF SAF, and other Montana citizens, have sought permission
and assurances from BATFE that they may proceed under MFFA without
fear of criminal prosecution or civil sanction, sanction so long as he strictly
confines such activity to Montana.

13.  BATFE refuses to give permission to Marbut or anyone else to
proceed under MFFA, and instead, on September 29, 2009, it issued a
letter to Plaintiff Gary Marbut contending that "to the extent the [MFFA]
conflicts with Federal firearms laws and regulations, Federal law
supersedes the MFFA, and all provisions of the GCA and NFA, and their
corresponding regulations, continue to apply." (See copy attached hereto
as Exhibit A.) This is consistent with an "open letter" BATFE issued to the
general public on July 16, 2009, warning that MFFA conflicts with federal
firearms law and regulations, and that federal law therefore supersedes
the MFFA. (See copy attached hereto as Exhibit B.)

14.  As a result of BATFE'S actions in issuing its July 16, 2009,
"open letter," and in its September 29, 2009, letter to PLAINTIFF MARBUT,
and its refusal to give other Montana citizens assurances or permission to
exercise their rights under the MFFA, no Montanan who wishes to proceed
under the MFFA can do so without fear of federal criminal prosecution
and/or civil sanctions, including fines and/or forfeiture.

15.  There is therefore a real and actual controversy between
PLAINTIFFS and DEFENDANT regarding whether the United States
Constitution confers power on Congress to regulate activities contemplated
by the MFFA. Under the 10th Amendment, all regulatory authority of all
such activities within Montana's political borders is left in the sole
discretion of Montana. Federal law therefore does not preempt the MFFA
and cannot be invoked to regulate or prosecute Montana citizens acting in
compliance with the MFFA, so long as they do so solely within the political
borders of Montana.

16.  In addition, PLAINTIFFS face irreparable harm from
DEFENDANT'S threat to enforce the NFA and/or the GCA and other federal
laws and regulations through the prosecution of civil actions and criminal
indictments against Montana citizens who proceed in compliance with
MFFA. The threat of federal civil action and/or criminal prosecution faced
under the circumstances effectively blocks PLAINTIFFS and all law abiding
citizens from exercising their rights under and otherwise benefitting from
the MFFA, a wrong for which they have no adequate legal remedy at law.

REQUEST FOR RELIEF
PLAINTIFFS respectfully request:

A.  A declaratory judgment pursuant to 28 U.S.C. § 2201 and
Federal Rule of Civil Procedure 57 for the purpose of determining and
adjudicating the questions of actual controversy between the parties as set
forth above, that:
(i) The United States Constitution confers no power on Congress to
regulate the special rights and activities contemplated by the MFFA;
(ii)
Under the 10th Amendment of the United States Constitution,
all regulatory authority of all such activities within Montana's political
borders is left in the sole discretion of Montana; and
(iii)
Federal law does not preempt the MFFA and cannot be invoked
to regulate or prosecute Montana citizens acting in compliance with the
MFFA.

B.  A permanent injunction order enjoining DEFENDANT and any
agency of the United States of America from prosecuting any civil action or
criminal indictment or information under the NFA or the GCA, or any other
federal laws and regulations, against PLAINTIFFS or other Montana citizens
acting, solely within the political borders of Montana, in compliance with
the MFFA.

C.  An order awarding to PLAINTIFFS costs and a reasonable
attorney fee under the private attorney general doctrine.

D.  PLAINTIFFS request such other and further relief as may be
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proper in the circumstances.
DATED this ____ day of September, 2009.
Respectfully submitted,
SULLIVAN, TABARACCI & RHOADES, P.C.
By: /s/ Quentin M. Rhoades
Quentin M. Rhoades
Pro Querente