Montana Shooting Sports Associ v. Eric Holder, Jr.

1396a(a)(23). term Because “the fact is immaterial contests—this enthood 1396a(a)(23) §in unam- the free- as used ‘qualified’ HB violates whether to the requirement. As to fitness to biguously provider’s refers the choice-of-provider rejecting a simi- noted required,” Circuit medical services Seventh render the Indiana, the free- Ind., argument made lar F.3d at Parenthood Planned not requirement “does choice-of-provider not those we need and do consider ending all the from simply bar states “If intent of interpretations. the every to guarantees it providers, choice of matter; clear, of the is that is end to right choose beneficiary Medicaid court, give agency, as the must as well Parent- qualified provider.” Planned any in- expressed to unambiguously effect Ind., no at There is 979. hood Chevron, U.S.A., Inc. Congress.” tent re- free-choice-of-provider exception to Council, Inc., v. Natural Res. Def. pa- burdens on for “incidental” quirement 837, 842-43, 104 S.Ct. tient choice. L.Ed.2d the Tenth Arizona invokes Finally, CONCLUSION Amendment, respect to urging court police power authority “sovereign its above, the explained For the reasons citi- its regulate the health welfare summary judgment order district court’s of Arizona’s zens.” Whatever (Case injunction No. permanent 13- regulate powers Tenth Amendment 15506) appeal are AFFIRMED. Arizona’s care, implicate this case does health (Case preliminary injunction No. Nothing the Medicaid in either them. 12-17558) as moot. is DISMISSED requirement free-choice-of-provider Act’s any casts court’s order or district on Arizona’s

doubt its practice of within borders. medicine statute, condi- public funding

HB 2800 is a monies on the tioning receipt of state SPORTS AS MONTANA SHOOTING provid- a health care range of services that SOCIATION; Amendment Second offers; on any it not have effect er does Gary Marbut, Foundation, Inc.; to prac- is authorized provider whether a Plaintiffs-Appellants, in Arizona. tice medicine purpose HB contrary, To 2800’s Intervenor, Montana, coneededly qualified pro- medical State exclude funds un- eligibility public viders from perform decline to elective abor- less Attorney HOLDER, Jr., Eric H. claimed tions. Arizona never General, Defendant- un- staff doctors are Planned Parenthood’s Appellee. exams qualified perform gynecological No. 10-36094. testing. Quite opposite; or STD clear implementation HB letter made Appeals, United States Court stop agreed Planned Parenthood Ninth Circuit. funded, elective abor- performing privately 4, 2013. Submitted March Argued and tions, providing all of its could continue it at public expense. Aug. other services Filed parties have directed court’s 5. The agency interpretations

attention to various Vio-, Sullivan, to End Domestic (argued), National Network M. Rhoades Quentin Missoula, MT, Network, Rhoades, P.C., lence, Rights Montana Human Tabaracci & Community Against Legal Violence. Plaintiffs-Appellants. B. (argued), Mark R. Freeman Mark Shurtleff, General, Attorney L. Mark Stern, Wright, Appellate Abby and C. UT; Burns, City, Attor- Salt Lake John J. West, Attorney Gen- Staff, Tony Assistant AK; General, Juneau, G. ney Lawrence Cotter, At- eral, Michael W. United States General, Boise, Wasden, ID; Bill Attorney Department of Jus- torney, States United MI; Schuette, General, Attorney Lansing, for tice, Division, Washington, D.C. Civil Lincoln, General, Bruning, Attorney Jon Defendant-Appellee. General, NE; Wilson, Attorney Alan Co- (argued), Goldwater C. Dramas Nicholas lumbia, SC; Jackley, Attorney Marty J. Fox, AZ; Institute, Phoenix, Timothy C. .McGraw, General, Pierre, SD; Darrell V. Waterman, Shanahan, & Johnson Gough, WV; Jr., General, Charleston, Attorney MT; Insti- Helena, Ilya Shapiro, and Cato General, A. Gregory Phillips, Attorney D.C., for Amici tute, Washington, Curiae WY, Cheyenne, for Amici Curiae States and Insti1 Cato The Goldwater Institute Alaska, Idaho, Nebraska, Utah, Michigan, tute. Carolina, Dakota, Virgi- South South West Bullock, Attorney Gener- nia, Montana Wyoming. Steve Attorney Gener- al; Zipfel, Zach Assistant L. and Adam R. Pomer- Sharon Browne MT, Helena, al, Amicus Curiae State for Foundation, Sacramento, Legal oy, Pacific Montana. CA, Amicus Pacific Foun- Legal for Curiae Miller, Joseph Law Offices Joseph W. dation. AK; Fairbanks, Miller, LLC, Gary G. Foundation, Eastman, Caso, Anthony T. John C. Justice Kreep, United States CA; Titus, Ramona, Lugo, Llewellyn, David Cen- W. William Karen J. Herbert Miles, Olson, Jurisprudence, L. and Jeremiah for Constitutional J. John S. ter Vienna, CA, Olson, P.C., for for Amici Curiae Center Morgan, Orange, J. William and Fifteen VA, Jurisprudence Amici Gun Owners for Curiae Constitutional Foundation, Inc., America, Legislators. Owners State Gun League. Defense Virginia Citizens Crowley Bloomquist, Doney E. John P.C., Helena, MT, Payne

Bloomquist Uda Weapons So- Amicus Curiae Collectors

ciety of Montana. MT, Baldwin, Timothy Kalispell, TASHIMA, A. Before: WALLACE . Thirty Legislators. Montana Amici Curiae CLIFTON, and R. CARLOS RICHARD Vice, Bra- Lowy E. and Daniel Jonathan BEA, Judges. Circuit T. Violence, Gun Wash- dy Center Prevent D.C.; A. Peles Noemi ington, Gil N. OPINION

Blasutta, LLP, Ange- Rose Los Proskauer les, CA, Brady for Amici Curiae Center CLIFTON, Judge: Circuit Violence, Prevent Gun International Marbut, Officers, Hispanic Gary Brotherhood Police Association, Sec- Shooting Sports Asso- Officers American Police Command Association, appeal Foundation ciation, ond Amendment National Black Police challenging action dismissal their feder- under the MFFA without complying with applicable regulating laws regulations. al firearms Marbut wants to fire- arms. manufacture firearms under the Montana Act, legislation Firearms Freedom In particular, Marbut to manu- wishes

that declares that the manufacture and facture and sell a .22 caliber rifle called the certain firearms within the sale of state is “Montana Buckaroo.” design Marbut has Congress’s beyond commerce plans ready for the rifle that are to load court power. The district dismissed the into machining equipment for production, action because no to and he has identified manufacturers that and, alternative, in bring claim will supply component parts. individual complaint because the failed to a state Several hundred Montanans have offered Raich, in light claim of Gonzales v. 545 to purchase the Montana Buckaroo at S.Ct. L.Ed.2d asking price, Marbut’s but such sales are (2005), Stewart, and United States v. on conditioned Marbut winning this suit appeal, F.3d 1071 On having and not comply federal sue, standing conclude Marbut has requirements. licensing According to the agree but we with thé district court that complaint, these customers “do want Thus, a failed claim. ... and buy” will Montana Bucka- judgment. we affirm the by roo a manufactured federal firearms developed licensee. Marbut also am- Background I. munition that he wants to sell under the MFFA and that agency a state has ex- Legislature passed The Montana pressed interest in purchasing. (“MFFA” Freedom Act Firearms Act”), or “the which declares that a fire- MFFA, After the passage of the arm or ammunition “manufactured ... in Alcohol, Tobacco, Federal Bureau of Fire- Montana and that remains within the bor- (“ATF”) arms Explosives distributed ders of Montana is not to federal “Open an Letter to All Montana Federal law or federal regulation, including regis- Firearm Licensees.” The letter stated tration, under the of congress conflicts the MFFA with federal fire- to regulate interstate [sic] commerce.” laws, arms supersedes and that federal law § It purports Mont.Code Ann. 30-20-104. the Act and apply. continues to to authorize the manufacture and sale of subsequently ATF, sent a letter to the state, imposes firearms within the but cer- asking whether he could manufacture fire- requirements tain for a to qualify firearm arms and ammunition under the MFFA Act, under the notably that the words without complying with federal statutes in “Made Montana” be “clearly stamped on and without fear criminal prosecution. a central metallic part.” Id. 30-20-106. In response, special an ATF agent wrote to Marbut that “unlicensed manufacturing Plaintiff a Gary Marbut owns business of firearms of ammunition for sale ... is a shooting range manufactures equip- violation of Federal law and could lead to ment for law agencies enforcement and is potential prosecution.” criminal in variety involved a of gun-related organi- activities, Marbut, zations and including service along with the Montana Shoot- president ing Sports Montana Shooting Association and the Second Association, Sports plaintiff. Foundation, another Amendment filed for declara- injunctive wishes to manufacture tory and sell relief. The Montana firearms and Sports ammunition to Shooting Montanans Association Sec- significant of future harm.” non-prof- possibility Foundation Amendment ond Sacramento, gun Cnty. and advoca- Mortensen v. education its dedicated (9th Cir.2004) declaratory (quoting requested cy. power Comm’n, has no Bras v. Cal. Pub. Utils. 59 F.3d judgment (9th Cir.1995)). contemplated by the activities injunctive preventing relief MFFA and injury pro Economic caused bringing civil or from government scriptive standing statute sufficient actions under federal firearms law criminal Audu challenge that statute. See Nat’l in acting compli- Montana citizens against Davis, Soc’y, bon Inc. v. 307 F.3d with the MFFA. ance 855-56, in opinion respects amended other magistrate judge recom- A federal reh’g, denial 312 F.3d 416 Cir. on dismissing because plain- the suit mended 2002). Davis, example, In ani and, in the alterna- lacked tiffs challenged a trappers prohibiting mal law tive, plaintiffs failed to state a because types traps. the use of certain Clause light of the Commerce claim they trappers alleged at 842. that The Court and jurisprudence ' had living through trapping, earned a The court court. federal district law, ceased because of the would trapping in full and these recommendations adopted if the law were declared trapping continue timely ap- the case. Plaintiffs dismissed invalid, in declaratory asked for pealed. 845, at The junctive relief. Id. 855-56. trappers court concluded that Standing II. law, that standing challenge noting inju argue that economic directly trappers’ injury is “the economic prosecution the threat of criminal ry and challenged that [the traceable to the fact standing. a for The provide each basis they explicitly trapping forbids law] the plain held that none of district court at would otherwise do.” Id. standing. a review motion to tiffs had We novo, lack of standing for de con dismiss Davis, plaintiffs Like the allegations the factual com struing injury resulting from alleges an economic Tyler in favor of v. plaint plaintiffs. a activ explicitly prohibiting laws business Cuomo, in. ity engage would otherwise he we that Marbut has appeal, conclude On Davis magistrate judge distinguished The injury on account of economic Mar- trappers, unlike on the basis that argument his for do not reach alternative but, came had a business that preexisting standing. Neither do we reach issue law at was enact to a halt after the issue Shooting Sports of whether Montana Davis, in It is that the court in ed. true and the Second Amendment Association trappers whether or not the determining standing. have organizational Foundation injury on future economic would suffer law, challenged noted standing, To have a must account history of the now- injury using or immi an that is “actual the “uncontested suffer [the opposed “conjectural hypo prohibited traps passage or before nent” as law], challenged and their Lujan Wildlife, statements thetical.” Defenders of not con they trapping continue if 504 U.S. (1992) (internal law], to show enough quotation strained [that L.Ed.2d 351 omitted). ban trapping if [the] for would resume marks Because Marbut asks But relief, invalid.” Id. at 856. very “a were declared injunctive he must show having a operated business enterprise in license. government The provides no rea- past a now-prohibited based on activity why son we should not take Marbut’s alle- is not a necessary condition standing. for gation that his want, customers “do not ordered, have not and will buy Injunctive requires relief showing ‘Montana if Buckaroo’ it is manufactured of a significant likelihood of injury. future by federal true, firearms licensees” as Mortensen, See 368 F.3d at 1086. Having we generally must in considering a dis- engaged in a business activity in the past missal under Federal Rule of Civil Proce- may speculative make it less plain that a 12(b). dure Marbut has supported his al- tiff can again and would do so if the law legation with enjoined, were evidence suggesting but there bright is no line much rule requiring past operation appeal of the Montana establish Bucka- Rather, standing. roo is that “determining ‘injury’ it is a product pur- for Article III standing purposes is a portedly fact- laws, gun specific inquiry.” Lujan, 504 U.S. at for no other reason than the pride 112 S.Ct. 2130. government limited symbolism associ- ated with such product. customer, One

Construing Marbut’s allegations in the example, light ordered ten him, most Buckaroos favorable to we conclude teáching purposes that he would order, manufacture and added to his sell unli- censed “I firearms should can’t think of a way declare federal better to teach regulations inapplicable to the shooting Buckaroo. Montana’s heritage than with a Marbut has not alleged a vague historic merely MFFA customer, rifle.” Another desire to manufacture and unlicensed sell ordering Buckaroos, two exclaimed, “I be- lawsuit, firearms if he wins this but has they lieve would be a collector’s item one specific made allegations substantiating day!” this claim. background He has a in run- Moreover, even if Marbut could conduct ning shooting his own range equipment his business as a federal licensee without business,

manufacturing has identified sup- losing customers, he would nonetheless in pliers for the component parts of the cur economic costs in complying with the Buckaroo, design plans has for the firearm licensing requirements. alleged ready to load into manufacturing equip- that he is ment, willing not pay “to the requisite and has identified hundreds of cus- licensing tomers who fees and have taxes” ordered the associated Buckaroo at his with asking price. complying with has alleged licensing re “ much more than quirements. the day’ ‘some inten- The economic costs of com tions ... any without description of con- plying with a licensing scheme can be suf plans” crete held insufficient for standing. ficient for standing. Ariz. Contractors Lujan, 504 U.S. at 112 S.Ct. 2130 Ass’n, Inc. v. Napolitano, 526 F.Supp.2d (holding that a professed mere intent to 968, (D.Ariz.2007) (holding plain visit a country was insufficient for stand- tiffs had they demonstrated would sustain ing, plaintiffs when purchased not injury economic if the law forced them to plane ticket or even described when use E-Verify), sub nom. Chicanos aff'd visit). would Causa, Por La Inc. v. Napolitano, (9th We are persuaded by Cir.2009), the F.3d 856 govern- sub nom. aff'd — ment’s argument that Marbut lacks stand- Chamber Commerce Whiting, ing because he could conduct -, his business U.S. 1968, 1979, 131 S.Ct. through legal means obtaining a federal L.Ed.2d 1031 independence from the States all stripping of this case circumstances Under or action.” policy allegations construing Marbut’s him, we conclude favorable to light most or not Marbut is correct in his Whether injury economic alleged that Marbut are critique jurisprudence, of that Because Marbut standing. sufficient for credit, disregard To free to it. his in a presence suit standing, “the much, acknowledges recognizing that as standing with suffices party one even with respect this court’s “hands tied” City Brown v. justiciable,” make a claim binding his precedent. Specifically, L.A., n. 1 Cir. brief opening states: 2008), not address whether we need many Appellants realize that re Foundation and Amendment Second spects, regards arguments so far sat Shooting Association Sports made, Ap are tied. hands Court’s organizational for isfy requirements being case law pellants advocate Ac standing. v. Forum See Rumsfeld overturned, and an intermediate scruti Inc., Rights, ademic Institutional & ny being applied. test But the relevant 1297, 164 52 n. promulgated by law case has been (2006) (declining to address L.Ed.2d 156 Court, whose are con decision plaintiffs additional “because trolling. e.g., United v. Stew See States standing is party one presence art, satisfy Article Ill’s case-or- sufficient to Thus, agrees even if the Court with the requirement”). controversy reasoning, there are few remedies the One, however, to offer.

Court able facts, be to limit to its Raich III. Merits distinguish grounds it' on of its national The district court dismissed implications. defense claim, con complaint for to state failure precedent from Turning Su- Congress’s power commerce cluding that court that we Court and our own preme it to manufacture permitted follow, to that bound conclude Con- a sale the Buckaroo. We review of to power commerce extends the gress’s a failure to state claim de dismissal for Buckaroo, sale of the manufacture and ESPN, F.3d novo. Knievel v. 393 See limited its Raich cannot be read' as to that 1068, 1072 facts, urges. as Marbut Raich, the v. Court argues that the manufac Gonzales In may a regulate that com Congress the outside held ture and sale of Buckaroo are Clause, Clause, modity the Commerce in the under Commerce if exists a ra marijuana, as case there licensing apply laws do that that federal that the activi concluding an tional basis for primary argument result. His is that issue, aggregate, in sub at taken expansive interpretation of Commerce ties stantially commerce. 545 sovereign affect interstate inconsistent with dual Clause is 1, 22, 2195, 1 162 L.Ed.2d trajectory of the 125 S.Ct. ty, and he laments the U.S. may pure even juris Congress regulate Supreme Commerce Clause Court’s “if that activity it concludes argues, example, ly intrastate prudence. activity regulate to that class the failure that “the Court’s Commerce regulation inter improvidently al undercut jurisprudence Clause would commodity.” at in that Id. govern American market very tered the form of ment, 18, applied 125 S.Ct. 2195. We test sovereignty, out reading dual 982 Raich, in possession Congress’s of firearms United States which dealt power Stewart, holding Congress regulate marijuana could under the Com Clause,

prohibit possession of a homemade merce be should limited to the implicated machine it could have ration- defense gun because national concerns ally possession drugs.” that the of home- “war on is no in language concluded There guns substantially limiting made machine would principles Raich its to “national concerns, however, affect the interstate market in machine defense” and Raich relies (9th 1071, Cir.2006); Filburn, 111, guns. 451 F.3d on Wickard v. 317 U.S. (1942), v. Henry, see United States 87 L.Ed. which Cir.2012). power with .Congress’s dealt Raich, wheat. See at 545 U.S. Stewart, regula- Under Raich and attempt S.Ct. The to read into tion of the Montana is within Buckaroo Raich distinction between the market for Congress’s power. Marbut in- commerce marijuana firearms the market for tends to manufacture Buckaroo under already court, rejected by been our Act, the Montana Firearms Freedom Stewart held that principles of Raich which he will means that manufacture and apply to the market for firearms.1 sell it within the borders of Montana. See § Finally, Mont.Code Ann. plaintiffs 30-20-104. But even pursued have not on any never sells the appeal argument Buckaroo outside the individual Montana, Congress rationally could con- right recognized bear in arms District Heller, clude that firearms would make unlicensed Columbia v. way their (2008), into the interstate market. This sup- S.Ct. L.Ed.2d 637 change result does not ports because the Bucka- a different if they result. Even roo will “Made in stamp bear a Montana” argument, already advanced this we have distinguish may it from absolutely firearms that be held that Heller no impact “has sold in the market. See id. on holding.” interstate Stewart’s Commerce Clause Congress reasonably 30-20-106. might Henry, 688 F.3d at 642. determine that a “Made Montana” rationally could have conclud- stamp will pur- not deter those seeking ed manufacture unlicensed fire- unregistered chase firearms in the inter- arms, only even if initially sold within the Stewart, state black market. See Montana, State in the aggregate at (rejecting argument 1077-78 substantially affect interstate market guns homemade machine “unique” were Stewart, for firearms. Under Raich and and so would not affect the market for enough place that is the Buckaroo with- guns, noting commercial machine that in of long .reach of arm federal law. “those seeking guns] only care [machine Because the MFFA purports to dictate to whether the work guns effectively”). contrary, see MontCode Ann. 30-20-

Plaintiffs’ efforts to distinguish Raich 104 (providing conforming that conduct convincing. are not argue subject the MFFA is “not to federal law or Stewart, history possession The of involved which mere of a homemade machine guns, gun. homemade machine Supreme granted further illustrates The Court certiorari case, that the judgment, Court did not view Raich as in that vacated the and re narrowly to its limited facts. Our first deci manded to court for further consideration 2003, Stewart, sion in Stewart was filed in light as United in of Raich. United States v. Stewart, (9th 2899, States v. 348 F.3d 1132 Cir. U.S. 125 S.Ct. 162 L.Ed.2d 2003). not, remand, Congress It concluded that could On our court issued the power, prohibit under its Commerce Clause decision described in text. necessarily of federal we do regulation, it is regulation”), federal pass upon validity v. of the Arizona not need and invalid. See preempted —Inc., True, Ariz., to use the attempts MFFA. Tribal Council Inter against regula- as a shield -, 186 MFFA 133 S.Ct. U.S. But, (2013) that, Congress to the tion. once decide (explaining L.Ed.2d regulate con- authority Marbut’s law conflicts with federal a state extent duct, Mar- opera- simply it is irrelevant whether law, to be “the state law ceases omitted)). in (internal attempts but to cloak himself quotation mark tive”

MFFA. VI. Conclusion Therefore, respectfully I dissent from Gary Though we conclude that majority’s opinion of the hold- portion the dis- standing, we affirm MFFA is feder- ing preempted that the state a the action for failure to missal al law. claim.

AFFIRMED. Partial Dissent

Partial Concurrence

by Judge BEA. in

BEA, Judge, concurring part Circuit in dissenting part: HAZLE, Jr., Barry A. Plaintiff- majority’s conclu- fully agree I Appellant, subject is to federal Gary sion that Raich, 545 licensing laws. Gonzales v. L.Ed.2d CROFOOT, Individually Stewart, and as

(2005), 451 Mitch and United States v. CDCR; Cir.2006), Mar- Brenda Parole Officer foreclose Individually Wilding, and as Su does not Unit argument but’s Dept. the CA of Correc pervisor of under the Commerce have Individually tions; Cate, of unli- Matthew manufacture Clause Dept. firearms, Supervisor manufac- of the CA even as Unit censed Kernan, Corrections; Individu initially sold within Montana Scott tured and Secretary ally there, Deputy I majority and as Chief only. stopped Had the However, Dept. Operations Adult CA join opinion in full. Rehabilitation; Tim majority goes step and holds further Corrections Hoffman, Individually and as Director Act Montana Firearms Freedom Opera pur- it the Division of Adult Parole “necessarily preempted” because Jallins, California; Deputy conforming to ports say that conduct tions Individually Deputy Commis regula- the MFFA is not to federal Westcare, sioner; Non- A Nevada opinion, my tion.1 In this section Defendants-Ap decide, Corporation, opinion unnecessary. we Profit Once pellees. did, Marbut’s falls with- conduct registration, un- regulation, including that a fire- Specifically, the MFFA declares congress [sic] der the arm or ammunition "manufactured Ann. Mont.Code commerce." and that within the borders interstate remains law or Montana is not to federal 30-20-104.

Case Details

Case Name: Montana Shooting Sports Associ v. Eric Holder, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 23, 2013

Citation: 727 F.3d 975

Docket Number: 10-36094

Court Abbreviation: 9th Cir.