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William J. Olson P.C.
Files 75th Supreme Court Amicus Brief



On August 13, 2014, our firm had the privilege of filing its 75th amicus curiae brief in the U.S. Supreme Court, in the case of Rudy v. Lee. In addition, we have made 12 other types of filings in the U.S. Supreme Court (for a total of 87 filings), such as: Petition for Certiorari, Jurisdictional Statement, Appellants' Brief, Reply Brief, and Brief for Intervenor-Respondents.

In addition to statutory issues, these briefs have addressed a wide variety of Constitutional issues:

Article I Section 1 (Delegation Doctrine)
Article I Section 2 (Census, Apportionment Clause)
Article I Section 4 (Time, Places and Manners of Elections)
Article I Section 6 (Speech & Debate Clause)
Article I Section 8 (Commerce Clause, Naturalization Clause, General Welfare Clause, Necessary & Proper Clause)

Article II Section 1 (Delegation Doctrine)
Article II Section 2 (Invasion)
Article II (Appointments Clause, Commander-in-Chief)

Article III, Section 2 (Case and Controversy, Standing, Political Question)
Article III Section 1 (Judicial Power)

Article IV Section IV (Republican Form of Government, Invasion)Article VI (Preemption)

First Amendment (Establishment Clause, Free Exercise Clause, Freedom of Speech, Freedom of Press, Right to Assemble, Right to Petition Government)
Second Amendment
Fourth Amendment
Fifth Amendment (Due Process, Equal Protection Component)
Tenth Amendment
Fourteenth Amendment (Due Process, Equal Protection, Privileges & Immunities)

Other briefs have addressed important statutory issues (U.N. Participation Act, Gun Control Act, National Firearms Act, Firearms Owners Protection Act, Uniform Code of Military Justice, Federal Election Campaign Act, etc.).

Our first Supreme Court filing was October 16, 1981, supporting the legality of President Reagan's action against striking air traffic controllers. Of course, we have also filed many other briefs in various U.S. District Court, U.S. Courts of Appeals, State Supreme Courts, etc. All of these filings since the late 1990's and some earlier briefs are available on this website, and we are working to post the older filings as well.


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Herb Titus to Speak at 11th Annual Brigham-Kanner Property Rights Conference
William & Mary Law School
October 30-31, 2014
Noonan v. Bowen
October 6, 2014
Heller v. District of Columbia
September 9, 2014

Today, our firm filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit, supporting another challenge by the legendary Dick Heller to the District of Columbia’s onerous firearm registration and licensing requirements. This is our firm’s third amicus brief supporting Heller’s challenges to these DC gun regulations. In 2008, the Supreme Court adopted the type of analysis recommended by our first amicus brief.

After its 2008 loss in the U.S. Supreme Court in the first Heller case, the DC City Council crafted new registration and licensing regulations which technically permit possession of handguns in the home, but are so onerous as to effectively make the process so difficult and expensive that few can ever obtain a firearm.

This new regulatory scheme was challenged, winding up in the DC Circuit, where we filed our second amicus brief in Heller II. The DC Circuit disregarded the Supreme Court’s instructions in Heller I to apply the text, history, and tradition of the Second Amendment to the DC gun control scheme. Instead, the DC Circuit sent the case back to the district court with orders to apply “intermediate scrutiny” — the very “judge-empowering” interest-balancing test the Supreme Court had rejected in Heller I.

Freed to “balance the interests” in whatever way he saw fit, the district court judge placed DC’s alleged interests in police and public safety above Americans’ constitutional rights.

Next, our brief argued that DC’s registration scheme is so riddled with exceptions that it violates the primary purpose of the Second Amendment — to ensure that all of “the people” are able to defend themselves and resist tyranny. Instead, the DC laws make it only so that government agents and members of the wealthy and powerful elite classes in the District have easy access to firearms.

Next, our brief deconstructed the district court’s argument that gun laws are more easily justified in densely-populated, urban centers such as DC. The Supreme Court in Heller I rejected just such an argument, noting that the protections of the Second Amendment are uniformly applicable coast-to-coast. If federal constitutional rights are to be the same in Washington, D.C. as they are in Cheyenne, Wyoming, federal courts must reject special pleading by big city mayors and their police chiefs who want to deprive their citizens of their rights as citizens under the U.S. Constitution.

Finally, our brief points out the absurdity of the district court’s decision that one handgun per month is “more than enough” for District residents. It is not up to federal judges to decide which or how many constitutional rights a person gets to exercise.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, Policy Analysis Center, Downsize DC Foundation, and DownsizeDC.org.

John Albert Dummett, Jr., et al. v. Debra Bowen, as Secretary of State, etc.Petition for Review by the California Supreme Court
September 2, 2014

Rudy v. Lee
August 13, 2014

Today, our firm filed a friend-of-the-court brief in the U.S. Supreme Court, supporting a patent attorney’s claim that a law mandating an increase in patent application fees was invalid because it was signed into law by President Obama who does not meet the constitutional requirement to be a “natural born citizen.” The lower courts in the case ruled that the question of President Obama’s citizenship is a “political question” and thus an issue for Congress — not the courts — to decide.

Until now, the question of President Obama’s qualifications as a “natural born citizen” has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court — and thus lacked “legal” standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90.00 because of the new law signed by President Obama.

Also, until now, no one has questioned the validity of a law signed by the President. Rather, previous cases have sought the removal of President Obama from the presidential ballot or from office altogether. In this case, however, the complaining patent attorney is not seeking President Obama’s removal from office, but simply a refund of his $90.00 and a declaration that, unless he is a “natural born citizen,” President Obama does not have the constitutional authority to sign a bill into law. Yet, the courts are attempting to avoid declaring what the law is based on the judge-made expedient of labeling the issue a “political question.”

In addition to possessing the standing that prior challengers lacked, Mr. Rudy’s case comes at an opportune time — just two months after the U.S. Supreme Court unanimously held in National Labor Relations Board v. Canning that an Order of the NLRB was invalid because three members of the board were constitutionally ineligible to serve.

Our amicus brief in Rudy argued that if the U.S. Supreme Court can decide whether members of the NLRB meet the constitutional requirements of their office, it can also decide whether the President of the United States meets the constitutional requirements of his office.

Further, as our brief demonstrated, the requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the President’s sworn oath to “defend, preserve, and protect” the Constitution of the United States.

Many object to any challenge to the eligibility of a president, or presidential aspirant, but if the law is to apply equally to every person, Presidents cannot be deemed to be above the law based on vague tests such as whether the case presents “political question.” Indeed, demonstrating that the term “natural born citizen” is a constitutional requirement that has continuing political significance which needs resolution are questions not just about President Obama, but also about Republicans Marco Rubio, Rick Santorum, Ted Cruz, and others.

Our brief was filed on behalf of U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, U.S. Border Control, U.S. Border Control Foundation, Institute on the Constitution, Policy Analysis Center, and Conservative Legal Defense and Education Fund.

Comments filed with Bureau of Alcohol, Tobacco, Firearms & Explosives opposing Multiple Rifle Sale Reporting (take two)
July 23, 2014



For the second time in as many months, our firm filed comments on behalf of Gun Owners of America, Inc. and Gun Owners Foundation, expressing opposition to the ATF’s continuing effort to require federally licensed firearms dealers (FFL’s) to report to ATF information regarding the sale of multiple rifles.

Purportedly concerned about firearms being trafficked to Mexican drug cartels, three years ago ATF snuck past the courts a requirement that all FFLs located in the four southwest border states (California, Arizona, New Mexico, and Texas) must report to the ATF any sale to a single person of two or more rifles within a five day period.

Then, in April, in a brazen move under cover of the 1995 Paperwork Reduction Act, ATF announced that it would extend its multiple rifle reporting requirement to every FFL in the country, and to all multiple sales regardless of whether they were sold to the same person.

Our firm filed comments with ATF on behalf of GOA and GOF, contending that there was absolutely no justification for such a universal requirement. ATF has never alleged that its claim concerning arms trafficking involves virtually every FFL in the country. Indeed, our comments charge that ATF’s expansion of the multiple rifle sales reporting requirement is a significant step towards the creation of a national gun registry prohibited by federal law.

Within days of our initial comments, ATF backed off, withdrawing its initial notice and replacing it with an amended notice, limiting its requirement to the same four border states and sales made to the same person.

An article by GOA Executive Director Larry Pratt in the American Thinker explains what happened.

In response, our firm filed a second set of comments with ATF, this time pointing out the illegality of ATF’s action under the Firearms Owners Protection Act of 1986 which expressly limited the reporting of multiple firearm sales only to handguns. Additionally, our comments pointed out that, in 1986, ATF acknowledged the handgun limitation in a letter, submitted to the Senate Judiciary, opposing the Act. Finally, we recited Congress’s list of findings, including the Second Amendment right to keep and bear arms, upon which the Senate and the House were basing the Act’s design — in order to impose significant limits on ATF’s law enforcement powers.

Whether this second effort will pay dividends, as did the first, we don’t know yet. In any event we will continue to combat the ATF and the Obama administration’s persistent efforts to undermine our Second Amendment rights.

Jackson v. City & County of San Francisco
July 3, 2014

Today, our firm filed a brief to uphold gun rights in the U.S. Court of Appeals for the Ninth Circuit, in support of a Petition for Rehearing En Banc, in the case Jackson v. San Francisco, No. 12-17803.

San Francisco ordinances prohibit the possession of a handgun within the home unless it is (i) being worn on the person or (ii) locked away. San Francisco also prohibits the purchase of hollowpoint ammunition within city limits. A panel of three judges from the Ninth Circuit had upheld the ordinances on the ground that they “limit but do not destroy Second Amendment rights,” standing in stark contrast to the text of the Second Amendment which states clearly that the right “shall not be infringed.”

The panel defended the ordinances relying on First Amendment case law that permits government to regulate the “time, place, and manner” of certain speech. Our brief argued that First Amendment precedents have no application in Second Amendment cases, and in any event, “time, place, and manner” cases apply to speech in public places, while the San Francisco ordinances regulate conduct inside the home. Then, our brief explained why the Supreme Court’s decisions in Heller and McDonald did not sanction judicial use of First Amendment balancing tests, but indeed rejected their use in Second Amendment cases.

Next, our brief explained the proper judicial review in Second Amendment cases. If (i) a person is part of “the People,” (ii) his weapon is a protected “arm” and (iii) the activity is to “keep” or “bear,” then his right is absolute — not subject to any judicial balancing in light of the government’s desire to infringe the right. It is not up to the government to decide the permitted ways of “keeping” arms, or the types of ammunition that a person may use any more than it is up to the government to decide what types of books can be read. The Second Amendment prohibits all infringements — not just ones that Courts believe go too far.

The Ninth Circuit panel, in upholding the San Francisco ordinances, treated the Heller decision as if the right to keep and bear arms protects only a limited right to possess a handgun for self-defense in the home.

The panel, which ruled in favor of San Francisco, was forced to admit that San Francisco’s regulations on handguns within the home burden “core” Second Amendment rights. Yet, in disregard for the text of the Second Amendment, the panel applied a “standard of review” so absurdly deferential that its decision amounts to little less than a judicial rubber stamp.

The panel blindly adopted the City’s baseless assertions that the burden was “indirect” and thus insubstantial. The panel next blindly adopted the City’s baseless assertions that it had an important governmental interest in “public safety” which permitted it to regulate firearms and ammunition.

In short, while claiming to exercise judicial review, the panel left it entirely up to the City of San Francisco to decide the outcome of the challenge to its ordinance. All the City was required to do was make the assertions the court wanted — and if it did, then there would be no way it could lose. That is clearly not what the Second Amendment requires.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Nevertheless, yesterday, on July 17, 2014, the Ninth Circuit denied the petition for rehearing. The only silver lining is that the Ninth Circuit is also considering a petition for rehearing in another case -- Peruta v. San Diego -- where the Ninth Circuit sided with the challengers to an anti-gun law, and it may be that the Peruta case would be a good vehicle for the en banc Ninth Circuit to rule on gun rights.

Johnson v. United States
July 3, 2014
Bureau of National Affairs Criminal Law Reporter
Abramski v. United States
June 17, 2014


The BNA Criminal Law Reporter's article on the Abramski decision, "Straw Man for Lawful Firearm Purchaser Made Material False Statement on ATF Form," by Alisa Johnson, used some of our comments on the decision:

William J. Olson, Vienna, Va., who also participated in amicus briefs, characterized “the essence of the majority opinion” as, “if the Supreme Court thinks that interpreting federal law the way it is actually written would defeat Congress' intent, the court may usurp the legislative power to edit the statute to fulfill its true intent.”

Olson also accused Kagan of adopting a statutory meaning “that was fully consistent with her anti-gun ideology.”

GOA/GOF Comments to BATFE on Report of Multiple Sales of Rifles
June 16, 2014


See note above on "Comments filed with Bureau of Alcohol, Tobacco, Firearms & Explosives opposing Multiple Rifle Sales Reporting (take two)" filed on July 23.

Heien v. North Carolina
June 16, 2014

Today, our firm filed an amicus curiae brief in the U.S. Supreme Court in support of a North Carolina man who challenged the constitutionality of his traffic stop. A police officer pulled Heien over because his car’s right rear brake light was not functioning properly. However, North Carolina law requires only one working rear “lamp.”

The Supreme Court of North Carolina had ruled that the Fourth Amendment requires only that the police act “reasonably,” based on a judicial evaluation of the “totality of the circumstances.” Applying a type of freestanding balancing test derived from past Supreme Court cases, the court decided that it believed the police officer’s alleged mistake of law was a reasonable one. Thus, the old maxim has been revised to “ignorance of the law is no excuse — unless you are the one enforcing the law.”

According to this view of the Fourth Amendment, the Constitution protects only a “right to privacy,” which is balanced against the government’s interest in violating the right. Ordinarily, the privacy intrusion is deemed insignificant, and the governmental interests are deemed “compelling.” Here, the government’s interest was “traffic safety.”

However, in two recent cases, U.S. v. Jones and Florida v. Jardines, the Supreme Court has begun to return Fourth Amendment jurisprudence to its original property basis, and our brief urges the Court to continue that trend in this case.

Our brief argues that the Fourth Amendment be understood to protect property rights, not some judge’s view of a “reasonable expectation of privacy.” Applying this property basis, if the government does not have a superior property right to the person or thing to be searched or seized, then the search or seizure is per se unreasonable. Judges do not have the authority to decide that traffic safety is more important than property rights.

Since Heien was violating no law when he was stopped, the state objectively had no property interest in his person or in his car. For that reason alone, the stop violated the Fourth Amendment, regardless of how “reasonable” some North Carolina judges subjectively believed the police had acted.

World Net Daily Article on Mt. Soledad Cross brief
June 5, 2014

An article in World Net Daily discusses the amicus brief we filed earlier this week in the Mt. Soledad Cross case.

Mount Soledad v. Trunk
June 4, 2014
Shew v. Malloy
May 23, 2014

Our firm filed in the U.S. Court of Appeals for the Second Circuit an amicus brief in support of Connecticut gun owners who challenged Connecticut’s ban of so-called “assault weapons” and “large capacity magazines.”

The law being challenged was passed by anti-gun Connecticut legislators and signed by an anti-gun Governor, riding a wave of hysteria following the December 2012 mass murder of elementary school children in Newtown, Connecticut. Those supporting the law claimed that to stop the violence “military style” weapons must be banned.

On the same day that we filed our brief, in Santa Barbara, California — the state which proudly claims to have the strictest anti-gun laws in the nation — another mentally deranged young male demonstrated that the problem is not guns. Indeed, in Santa Barbara, the shootings took place over a 10-minute period, during which there were no armed civilians who could take action to stop the shooter. The only gun problem is laws keeping guns from law abiding citizens.

In court, Connecticut made the old, tired arguments that the ban is necessary to protect the police and further public safety. The district judge agreed. Despite finding that the ban “substantially burdened” the Second Amendment right to keep and bear arms, he felt the burden was not unreasonable in light of the competing public interest. Even though rejected by the U.S. Supreme Court in the Heller case, the district court used a judge-empowering “balancing test” to justify the ban. Under this “test” barred access to semiautomatic weapons that even the trial judge admitted were constitutionally protected arms.

Our brief argued that the judicial standard of review for Second Amendment cases is the amendment’s text itself — “shall not be infringed.” If (i) a person is part of “the people,” (ii) a firearm is an “arm,” and (iii) the activity involves “keeping” or “bearing” — then the right is absolute, not subject to balancing against the interests the government has in violating the right. Since it is abundantly clear that these requirements are met in this case, the Connecticut ban must be struck down. It does not matter if the state provides “alternate access to similar firearms.” It is up to the American people, not the government, to choose which weapons "secure" a "free state" against tyrants — the stated purpose of the Second Amendment.

Our brief also argued that the Connecticut ban, by exempting favored government employees and those “persons” who submitted to the state’s registration system, creates unconstitutional “titles of nobility” for the state’s favored few. The Supreme Court has said that the Second Amendment is a right that belongs to “all Americans,” not just “an unspecified subset.”

Our brief was filed on behalf of: Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Oregon Firearms Educational Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

DeBoer v. Snyder
May 14, 2014
Federal Government Seldom Able to Police Itself
May 9, 2014

Pastor Chuck Baldwin covers the U.S. Supreme Court's denial of certiorari in Hedges case, and our amicus brief.

Bill Olson on NewsmaxTV.com
May 2, 2014

Bill Olson was interviewed by Steve Malzberg today on NewsmaxTV about the U.S. Supreme Court's denial of the petition for certiorari filed in Hedges v. Obama. Our firm filed three amicus briefs in the Hedges case, one in district court, one in the court of appeals, and one in the U.S. Supreme Court. The Supreme Court's refusal to review the Second Circuit's opinion leaves standing Section 1021 of the National Defense Authorization Act of 2012 authorizing the U.S. Military to arrest and indefinitely detain American Citizens without charges, without an attorney, and without trial. (Note: Newsmax used the wrong photo on screen for the interview.)

Interestingly, this critical "non-decision" by the U.S. Supreme Court received almost no attention from the mainstream media. This tragic court order denying review is not neutral, leaving in place much of the groundwork for a totalitarian state. This important story was better covered by RT (formerly, Russia Today).

From the opposite side of the political spectrum, we stand with Chris Hedges who, anticipating this denial of the petition, declared: “If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.”

Herb Titus speaks on Search and Seizure Law
May 2, 2014

Herb Titus was a featured speaker on May 2, 2014 at the 8th Annual Conference on Eminent Domain held at Tides Inn, Irvington, Virginia on May 1 and 2. Consistent with the theme of this year's conference – Charting New Territory -- Herb's topic was "Can a 4th Amendment Search and Seizure Become a 5th Amendment Taking?"

Drawing on the work of the firm ­ featuring its amicus brief in United States v. Jones decided by the Supreme Court in 2012 ­ Titus called attention to the recent resurgence of the original property principles undergirding the 4th Amendment. Since Jones, the Supreme Court has given notice that Fourth Amendment claims are no longer to be balanced away by judges under the relativistic test of a reasonable expectation of privacy. Rather, the right to be free from unreasonable searches and seizures will be governed by fixed principles of property, the government being required to demonstrate a superior interest in the property at stake. Reviewing two recent cases in which innocent persons were being deprived of exclusive possession of their property, Titus charted a path whereby property owners would receive more complete protection of their property rights only by invocation of both a property-based 4th Amendment and the private property takings clause of the 5th Amendment.

WorldNetDaily Covers Our Amicus Brief in Chris Hedges Challenge to NDAA
April 30, 2014

Bob Unruh's article discusses the tragedy of the U.S. Supreme Court denial of Chris Hedges' petition for certiorari challenging the constitutionality of National Defense Authorization Act of 2012. NDAA 2012 allows the U.S. military to arrest and detain, without charges, counsel, or trial, anyone thought by the government to be a threat based on vague standards.

Attempting to deflect public wrath, those Republicans and Democrats in Congress who passed the law, and the Obama Administration which wanted it, have changed their public position repeatedly as to how the law would apply to American citizens. Of course, when legislators want to make a law clear, they know how to do it. When they try to make it murky, that too is on purpose.

By the morning after this article was posted, it generated 457 comments, showing the depth of the opposition to this terrible law.

The article mentions only the most recent of our amicus briefs challenging NDAA, but we actually filed three such briefs against this dangerous law.
4/16/12 we filed the only amicus brief in support of the injunction in U.S. District Court.
12/17/12 We filed a brief in the U.S. Court of Appeals for the Second Circuit.
1/23/14 We filed a brief supporting the petition for certiorari in the U.S. Supreme Court.

American Thinker publishes article --- The Wurie Case: Restoring the Property Basis of the Fourth Amendment
April 28, 2014



This morning, the American Thinker published an article by Robert Olson, Herb Titus, and Bill Olson about the property rights basis of the Fourth Amendment and how it bears on the U.S. Supreme Court's consideration of warrantless searches of cell phones. We previously filed an amicus brief in the case addressing this issue -- United States v. Wurie.

Congressional Research Service Cites Study on Executive Orders by Bill Olson.
April 16, 2014

The Congressional Research Service today issued a report entitled Executive Orders: Issuance, Modification, and Revocation. That report twice references a study which Bill Olson co-authored entitled Executive Orders and National Emergencies: How Presidents Have Come to Run the Country by Usurping Legislative Power.

The CRS report also references an October 27,1999 hearing in the House of Representatives at which Bill testified on this topic.

Western Center for Journalism article on United States v. Wurie
April 9, 2014

Our amicus brief in United States v. Wurie was the subject of an article by the Western Center for Journalism.

U.S. V. Wurie
April 9, 2014

On April 9, 2014, we filed an amicus curiae brief in the case of United States v. Wurie. The issue before the court is whether arresting officers can search the cell phone of a person arrested without a warrant. However, the underlying issue in Wurie and its companion case, Riley v. California, is whether the Court will continue to apply its evolving reasonable expectation of privacy test birthed in Katz v. United States to searches incident to arrest, or instead continue with its restoration of property principles begun in United States v. Jones and Florida v. Jardines.

The amicus curiae brief was filed on behind of: Downsize DC Foundation, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, National Association for Gun Rights Inc., Center for Media and Democracy, Lincoln Institute for Research and Education, Western Journalism Center, Free Speech Coalition, Free Speech Defense and Education Fund, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Gun Owners of America & Gun Owners Foundation Comments to ATF on “Adjudicated as a Mental Defective”
April 7, 2014

President Obama announced that his Administration would do all in its power to stop gun violence. By that he seems to have meant reducing private ownership of firearms. Now, it turns out that he is not just doing things within his presidential power to achieve that objective – he is usurping legislative power to amend statutes unilaterally.

On January 7, 2014, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), issued Proposed Rules designed to vastly increase the number of Americans prohibited from owning firearms, including many U.S. Veterans, by changing the meaning of words contained in laws passed by Congress.

On behalf of Gun Owners of America, Inc. and Gun Owners Foundation, our firm filed comments opposing those proposed ATF rule changes.

Federal law prohibits persons who have been “adjudicated as a mental defective” from owning firearms. ATF claims that the terminology Congress used in the statute is “outdated,” purporting to “clarify” the term, ATF instead wants to rewrite the statute, greatly expanding its scope.

ATF alleges that Congress intended the law to apply “broadly” to “unstable” and “irresponsible” people, and has defined the term as including people who suffer from a “mental illness, incompetency, condition, or disease.” But that is not what the statute says. A “mental defective” is a person of “marked subnormal intelligence” or “gross ignorance or imbecility.” Congress never intended the law to apply to combat veterans suffering from PTSD, but that is one of the groups that have been targeted for disarmament.

Federal law also prohibits persons who have been “committed to a mental institution” from owning firearms. ATF wants to change the meaning of that phrase to apply to “both inpatient and outpatient commitments.” Those are, of course, very different matters. Inpatient commitment is generally used when a person is unable to function in society and needs to be forcibly confined for treatment in order to protect him and/or the public. Outpatient treatment, however, is for less significant problems, and may require a person only to take medication or follow some other course of prescribed treatment.

Finally, our comments noted that ATF never considered the Second Amendment when proposing its new definitions. After Heller, though, the government can no longer assume it may deprive people of their firearms rights at will. Instead of requiring a formal adjudication by a court before a person’s rights are taken from him, ATF has permitted unelected, unaccountable bureaucrats, such as those at the Veterans Administration, to decide willy-nilly who may and may not own guns.

This sort of lawless activity may be what Americans are accustomed to from this rogue agency, but it is not what they deserve. Government officials are the servants of the people, not their overlords.

Herb Titus Quoted in BNA Article “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun”
March 13, 2014

Herb Titus was quoted in a Bloomberg Bureau of National Affairs (“BNA”) Criminal Law Reporter article entitled “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun.” The article involves the case Rosemond v. United States, in which our firm filed an amicus brief on August 9, 2013.

Herb was quoted as saying that “bare knowledge of the presence of a firearm is sufficient reason to impose an additional mandatory minimum consecutive sentence of five years.... The ruling has the effect of taking from the jury the key question of defendant’s guilt—his intent concerning the use of a firearm [and] upholds the power of prosecutors, not judges, to determine sentences given to thousands of defendants ... Prosecutors will continue to have power de facto to impose mandatory minimum sentences — the very sort of sentences that Attorney General Eric Holder claims to oppose.”

U.S. Justice Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System
March 10, 2014

Our firm filed comments for U.S. Justice Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, particular adversely affecting Veterans.

Our comments explain that the HIPAA Privacy Rules have been perverted from their original purpose to enhance patient confidences. Especially, with the new proposed amendments, these rules are now better understood as not involving privacy, but providing a justification for the federal government to have access to all of your private medical information.

Moreover, the HHS proposed regulations are likely to have an adverse effect on veterans. It has been widely reported that veterans who may need help filling out complicated benefits paperwork are being administratively categorized (not “adjudicated” as required by statute) by unqualified persons wholly without due process of law. They are being placed on the NICS list, unconstitutionally depriving them of their Second Amendment rights.

The Veterans Administration apparently considers a veteran who has been issued a fully automatic weapon to help defend the country against overseas threats, but who needs help to navigate its considerable bureaucracy, to be mentally incompetent and disqualified from owning a semi-automatic weapon upon his return to this country. Such classifications are insufficient as a matter of law because they do not constitute a finding, and are not based on findings, that meet the statutory standard of “adjudicated as a mental defective or who has been committed to a mental institution.” Once so categorized, the veteran must navigate yet another bureaucracy to undo the damage that its claims processors do, only to discover that there is there is essentially little veterans can do to regain their Second Amendment rights.

Gun Owners Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System
March 10, 2014

Our firm filed comments for Gun Owners Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, even for self defense in the home.

The HHS Proposed Rule (“PR”) is one of the “23 executive actions” announced by the Obama Administration allegedly in response to the Newtown, Connecticut mass shooting. It proposes changes in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulations which were designed to establish national standards to protect the privacy of healthcare records. This PR would authorize health care providers to provide information to the National Instant Criminal Background Check System (“NICS”).

Under 18 U.S.C. Section 922(g)(4), Congress banned from firearms posession only persons “adjudicated” mentally defective or “committed” to a mental institution — both of which require a formal, judicial process. ATF, however, has unilaterally expanded the law through its regulations to bar ownership of firearms by anyone who has been informally “found” or “determined” to lack the capacity to manage his affairs on account of mental “incompetence.” This expanded definition potentially includes Veterans Administration bureaucrats to bar tens of thousands of veterans who seek post-combat treatment for PTSD, or even older vets seeking a guardian to help with his finances, from owning firearms.

The HHS regulations make the illegal ATF regulations even worse by waiving the privacy rights we have in our own medical records, and allow all sorts of new entities to decide we are dangerous, and report us to NICS.

HHS claims its PR is necessary to remove a “perceived barrier” for reporting to NICS. Our comments noted that HHS appears to be operating under a misconception that states are not reporting to NICS solely because they misunderstand HIPAA. HHS never stops to consider that states may decline to report to NICS about persons who they do not believe meet the statutory definition.

HHS wants to make an end run around state entities that have been designated to report to NICS. Our comments reminded HHS that, under our federal system, it is for the states — not an unelected federal bureaucrat — to designate who reports to NICS. We also explained that its PR would make it much harder to get erroneous information removed from NICS. Finally, our comments criticized HHS for usurping the role of the Department of Justice, by authorizing health care providers to submit even more private medical information than NICS requests.

Brief Filed Opposing Ohio’s “Ministry of Truth”
Susan B. Anthony List v. Ohio Election Commission
March 3, 2014

Taking a page out of Orwell’s novel 1984, the Ohio Elections Commission operates as a modern “Ministry of Truth’ — with the power to “determine” and “proclaim” the truth or falsity of every statement made during an Ohio political campaign. Our firm filed an amicus curiae brief in the U.S. Supreme Court, contending that the government has no legitimate role whatsoever to play in guiding Americans as to how to vote.

Here is what happened. Two political committees sought to defeat Congressman Steve Driehaus during the 2012 election cycle by claiming he supported taxpayer-funded abortion when he voted in favor of Obamacare.

Driehaus complained that the claim was false, and filed a complaint with the Ohio Election Commission. A committee of Commission members agreed, finding probable cause that the SBA List knew the charge was false. Because of this, the billboard company refused to erect their billboards containing the anti-Driehaus message. Before the full Commission could act, Driehaus lost the election, and withdrew his charge.

The political committees, however, took the matter to federal court, contending that the action taken by the Commission “chilled” their political speech protected by the First Amendment. The district court dismissed the case, not on the merits, but on the ground that the First Amendment claim was not yet “ripe” for decision. The Sixth Circuit agreed, as both courts opined that since neither organization had been prosecuted, and neither organization could produce any evidence that they would be chilled in any future campaign, their First Amendment complaint had not yet matured into a an actual case or controversy.

We urged the Supreme Court to find that the groups had, in fact, presented a First Amendment claim that is ready for judicial decision on the merits. We point out that the claim was not based upon whether the Ohio law, in fact, keeps protected speech out of the political marketplace of ideas, but whether, as a matter of law, Ohio has any jurisdiction whatsoever to enter the political marketplace of ideas to ferret out truth from alleged falsehood.

In America — where the people, not the government, are sovereign — it is for the people, not bureaucrats, to decide who, in the heat of a political campaign, is telling the truth and who is allegedly telling lies. As Thomas Jefferson proclaimed in 1779, “the opinions of men are not the object of civil government, nor under its jurisdiction,” therefore leaving no room for a government Ministry of Truth.

Drake v. Jerejian
Amicus brief challenging
New Jersey’s Concealed Carry Laws
February 12, 2014

In New Jersey, it is a crime to possess a firearm unless you can prove that you fit within one or more tightly-drawn statutory exemptions. One exemption allows a person to have a handgun on his own property, but he may not step one foot beyond unless the gun is fully disabled and he is heading to an approved destination.

New Jersey carry permits are like honest politicians — they are rumored to exist, but few have ever actually seen one. As one State legislator observed: “It is virtually never done.” An ordinary person may be granted a permit only if he can prove to the satisfaction of a judge that his life is in grave danger. Certain members of the privileged class of government workers are permitted to carry firearms; they need only prove that they are currently or were formerly employed in law enforcement.

Today, our firm filed an amicus brief in the U.S. Supreme Court, in support of John M. Drake and several other ordinary New Jersey citizens who applied for but were denied permits to carry their handguns in public, because they could not prove that their lives were in imminent danger. Our brief makes three arguments.

First, the federal judges below simply refused to analyze the New Jersey gun control scheme according to the original meaning of the Second Amendment and established constitutional norms. Instead, judges in both courts substituted their own ideas about gun control in disregard of America’s founders.

Second, New Jersey’s ban on carrying a firearm rests upon the premise that firearms are a privilege granted by the state rather than an inherent, individual right, as held by the U.S. Supreme Court in the 2010 McDonald decision.

Third, the right to keep and bear arms belongs to “all Americans,” as the U.S. Supreme Court recognized in the 2008 Heller decision. That is because, as the Second Amendment states, the right is “necessary to the security of a free State.” New Jersey, on the other hand, grants the privilege only to current and former government law enforcement, purportedly to ensure a “safe” State.

We hope that the Supreme Court will grant the petition for certiorari in this case in order to restore the Second Amendment right to carry a firearm for self defense.

Our brief was filed on behalf of Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Herb Titus Addresses Virginia House of Delegates Republican Caucus
February 4, 2014

Herb Titus was invited to address the Republican Caucus of the Virginia House of Delegates on HJR 9 — a call for a national constitutional convention for proposing amendments to the United States Constitution.

Herb explained that while the concept of using Article VI to address erroneous judicial decisions might seem tempting, it was fraught with risk. Unlike the process by which Congress may submit to the State legislatures specific written amendments, the convention process for proposing amendments is open-ended with no control of the number, scope, or subject matters of the amendments and no rules governing the number or selection of the delegates.

On January 31, 2014, the House Committee on Rules recommended that HJR 9 be adopted by the full House, by a vote of 9 yes - 6 no.

On February 6, 2014, two days after Herb's presentation, the House defeated the resolution by a vote of 29 yes - 67 no.

A story discussing the important role played by Delegate Bob Marshall (R-Prince William) in explaining to the Delegates the problems associated with the problems appeared in the Richmond Times Dispatch.

Obamacare Contraception/Abortion Services Mandate
Conestoga Wood Specialties Corp. v. Sebelius
U.S. Supreme Court Amicus Brief
January 28, 2014

The story is told of a grizzled Master Sargent who, reflecting on his years of service, said: “When I joined up, homosexuality was prohibited; now it’s tolerated; and I darn sure am getting out before it’s mandatory.” So it is with respect to homosexual and abortion rights. First, the goal is said to be tolerance. Then, governmental approval and support. Lastly, any pretense of tolerance disappears, and the coercive force of government is used to eliminate any vestige of opposition. The Obamacare contraception/abortion mandate demonstrates that our nation is at the end of phase two, moving into phase three.

On January 28, 2014, our firm filed in the U.S. Supreme Court an amicus brief in support of Conestoga Wood Specialties Corp., a Mennonite family-owned business located in Lancaster County, Pennsylvania. The company has been ordered by the Secretary of Health and Human Services to purchase health insurance to cover their employees that pays for contraceptive services, including “the full-range of FDA-approved contraceptive methods and patient education and counseling for women with reproductive capacity.”

While Obamacare uses the term contraceptive, that term has undergone a dramatic shift in meaning over the past 50 years. In the array of what are called “contraceptives” are true abortifacients — drugs and devices that induce a miscarriage or an abortion, and the death of an embryo.

Objecting on the ground that the mandate forces them to buy insurance that permits and facilitates abortion to which they object on religious grounds, the Hahn family who own Conestoga, sought injunctive relief in a federal district court, claiming that the mandate violated their rights under the Religious Freedom Restoration Act (“RFRA”) and the First Amendment guarantee of the free exercise of religion.

The district court denied relief, and the court of appeals affirmed. The Supreme Court granted the Hahn family’s petition for review, and the case is pending with a decision expected by the end of June, 2014.

In an introductory Statement our brief reminds the Court that the contraceptive mandate does not appear in the Affordable Care Act enacted by Congress and signed by the President. The mandate was not even developed by the Department of Heath and Human Services, or any other agency responsible to he President. Instead, it is the product of a Committee of 16 experts appointed by the Institute of Medicine, a nongovernment agency that is not accountable to the people or their elected representatives.

In the opinion of this Committee of experts, the contraceptive mandate is required because a woman’s “well-being” consists of a life of recreational sexual activity without risk of an unplanned pregnancy, and it is this opinion that HHS has made into law.

Our brief supports the Hahn family claim that the mandate violates their rights under the free exercise clause of the First Amendment to the United States Constitution. Unlike the Hahn family brief which relies upon court precedents supporting religious tolerance, our brief rests upon the original First Amendment text that secures freedom of religion. According to the cases that apply the religious tolerance doctrine, a person’s conscience may be overridden by laws that serve a compelling government interest. Under the First Amendment freedom of religion a person’s conscience cannot be violated no matter how “compelling” the government’s interest may be.

The original understanding of “religion,” as it appears in the First Amendment, appeared earlier in the 1776 Virginia Declaration of Rights. Unlike the First Amendment the Virginia Declaration expressly defines religion as a duty owed to the Creator which is enforceable only by reason, not by force. In a statute passed in 1785 by the Virginia General Assembly, the preamble declared that it would be a violation of the free exercise of religion if a law compelled a person to promote an opinion with which he disagreed. Our brief applies this principle to the contraceptive services mandate which compels the Hahn family business to promote a government program of education and counseling encouraging women to use abortion-inducing contraceptives to reduce the risk of “unwanted pregnancies.”

The Obamacare law is based upon an unproved presumption that a woman’s “well-being” depends upon having as wide an array of contraceptive methods, including abortifacients, as is made available by the FDA, so that she can be sexually active without risking an unplanned pregnancy. The Hahn family, however, does not share the Government’s materialistic view of womanhood, and that the Government has no jurisdiction to define what it means to be a healthy woman.

Finally our brief reminds the Court that forbearance is a Christian virtue and that the contraceptive services mandate prevents the Hahn family from practicing that virtue by mandating complicity in what they believe to be the sin of abortion in violation of the Hahn family’s statement of faith in the sanctity of human life, supporting that position with quotations from the Holy Bible.

In summary our brief maintains that according to the original meaning of the free exercise of religion, the federal government is prohibited from enforce the contraceptive mandate because it prohibits the Hahn family from performing their duties to their Creator according to the dictates of conscience.

This amicus brief was our fourth amicus curiae brief filed thus far against Obamacare in its various manifestations.

Our brief was filed on behalf of Eberle Communications Group, Inc., D&D Unlimited Inc., Joyce Meyer Ministries, Southwest Radio Bible Ministry, Daniel Chapter One, U.S. Justice Foundation, Virginia Delegate Bob Marshall, Institute on the Constitution, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Quinn v. Texas
Brief Filed Opposing No-Knock Home Raids
January 27, 2014

Every day we read about SWAT teams serving arrest warrants or search warrants at people’s homes, using no-knock raids in the middle of the night. Many of these police home invasions go wrong, with innocent people being shot, and sometimes killed, just because they were trying to defend themselves.  Even criminals have learned to claim that they are the police while breaking into homes, to discourage resistance.

An important case now presents the significant legal issue of whether police are justified in using no-knock home invasions simply because they know the occupants own a firearm.  On January 27, 2014, our firm filed an amicus curiae brief in the U.S. Supreme Court in Quinn v. Texas, in support of the grant of a petition for certiorari, to obtain a review of this issue. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-765.htm

John Quinn was asleep in his bed when Texas police broke down his door in the middle of the night, and shot him when he reached for a weapon, thinking his home was being invaded. The police were there to serve a search warrant for his son, Brian, who they suspected of dealing drugs.

The only justification for the no-knock raid that police gave was that John Quinn owned a firearm. The police claimed that firearms ownership was enough to present a danger to law enforcement, even though they knew John Quinn had a concealed carry permit — meaning the state of Texas had pronounced him to be a safe, law-abiding citizen.

It is a foundational Fourth Amendment principle that, when executing a warrant, the police must knock and announce their presence and purpose, and allow a homeowner the time to let them in. This principle is designed to preserve a person’s life (so he is not accidentally shot), his property (his front door), and his dignity (if, for example, he is in the shower). Only if the police have “exigent circumstances” has the Supreme Court permitted entry without knocking.

Our amicus brief pointed out that the police dispensed with the Fourth Amendment and executed a no-knock raid for the sole reason that Quinn had chosen to exercise his Second Amendment rights to keep a firearm in his home for self defense.

The Texas court held that it did not matter if the police violated Quinn’s rights with the no knock raid, since they would have searched his home and found drugs anyway. Our brief answers that in doing so, the Texas court essentially created a per se rule that, any time the police have a warrant, they can dispense with the Fourth Amendment, knowing that a court will later rule they “would have found it anyway.”

Finally, our brief noted the Court’s recent holding in U.S. v. Jones (a 2012 Supreme Court case in which we filed two briefs), where the Court returned to the private property roots of the Fourth Amendment, instead of the atextual “reasonable expectation of privacy” tests that had been invented in the 1960's. The brief argued that, after Jones, the Court needs to re-examine no-knock raids from a property — rather than a privacy — perspective.

Our society is one where no-knock raids — supposedly the exception — have become the rule, due to aggressive, militaristic policing, and permissive courts. Often, innocent people, and even family pets defending their homes are caught up in the crossfire when police make mistakes. Having a rule where the police can break down a person’s front door simply because he may keep a firearm inside is simply intolerable.

Our brief was filed on behalf of: U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Inc., Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, Policy Analysis Center, Downsize DC Foundation, and DownsizeDC.org.

Chris Hedges v. Barack Obama
Amicus Brief urges Supreme Court to bar NDAA Military Detentions of Citizens
January 23, 2014

Today our firm has filed our third amicus brief in support of Chris Hedges and the other journalists and political activists who are challenging Section 1021 of the National Defense Authorization Act of 2012 (http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf), and its authorization of the military detention of civilians based on vague standards of providing "support" for an adversary of the United States.

These NDAA standards were so vague that when asked, the U.S. Justice Department refused to say that Chris Hedges and the other plaintiffs could not be arrested by the military, e.g., for their reporting on middle eastern affairs, which includes interviews with, and even embeds with, foreign organizations.

This brief was filed in the U.S. Supreme Court, urging that it grant certiorari and review the decision of the U.S. Court of Appeals for the Second Circuit. The Second Circuit determined that the plaintiffs did not have standing to challenge detention, as the NDAA statute did not really say what it appeared to say, and that it was a nullity as to American Citizens. The Second Circuit left unaddressed whether American citizens could be detained by the military under the Authorization for the Use of Military Force (https://www.govtrack.us/congress/bills/107/sjres23) passed hurriedly after the events of September 11, 2001.

Our brief explained why the Court needs to address the issue of military detention of civilians. It explained that NDAA 2012 was fundamentally different from the AUMF. It explains that laws are often written in an ambiguous manner to give politicians deniability when called to account by their constituents. And it discussed how why NDAA 2012 eliminated the protections of the U.S. Constitution's treason clause.

Our brief states:
"If this Court does not grant the petition, there is no reason to believe that U.S. Presidents would cease to assert "the right to place certain individuals [including American citizens] in military detention, without trial." Id. There would continue to be no statutory constraint on an arrest being authorized by a military officer of unspecified rank. There would be no protection provided by the requirement of a Grand Jury indictment. There would be no requirement of an arrest warrant issued by an Article III judge, supported by a sworn affidavit showing probable cause of the commission of a specific crime. Neither would there be any protection against use of compelled testimony, or against any violation of due process of law. There would be no civilian proceedings whatsoever against the person detained. Indeed, there is no requirement that the individual being detained has committed any federal crime, and military detentions could be used to circumvent the protections afforded American citizens by the Treason Clause of the U.S. Constitution."

Our brief concluded:
"Ninety years ago, Franz Kafka gave the world a glimpse into the terror faced by individuals required to prove their innocence against unspecified charges in a world devoid of the rule of law. See F. Kafka, The Trial (1925). No American citizen should be subject to secret arrest and indefinite detention by the military, exempt from the protections of the Bill of Rights, and made even more terrifying by the threat of rendition to a foreign country for purposes that could include torture that is illegal in the United States."

We began working against this dangerous bill with organizations such as DownsizeDC.org and Gun Owners of America as soon as word circulated about its detention provisions during Thanksgiving weekend 2011.

Then, on April 16, 2012, we filed an amicus brief in the U.S. District Court for the Southern District of New York -- the only amicus brief filed in that case supporting the granting of an injunction against the federal government. http://lawandfreedom.com/site/constitutional/Hedges_Amicus.pdf
District Judge Kathleen Forrest issued first a preliminary, then a permanent injunction against NDAA detentions.

On December 17, 2012, we filed another amicus brief in the U.S. Court of Appeals for the Second Circuit.
http://lawandfreedom.com/site/constitutional/Hedges_Amicus_2ndCir.pdf

Our brief was filed on behalf of the following individuals and organizations:
U.S. Congressman Steve Stockman
Virginia Delegate Bob Marshall
Virginia Senator Dick Black
U.S. Justice Foundation
Gun Owners Foundation
Gun Owners of America, Inc.
Center for Media and Democracy
Downsize DC Foundation
DownsizeDC.org
Free Speech Defense and Education Fund
Free Speech Coalition
Western Journalism Center
The Lincoln Institute for Research and Education
Institute on the Constitution
Abraham Lincoln Foundation for Public Policy Research, Inc.
Conservative Legal Defense and Education Fund
Tenth Amendment Center
Restoring Liberty Action Committee
U.S. Border Control Foundation
Policy Analysis Center
Constitution Party National Committee
Pastor Chuck Baldwin
Professor Jerome Aumente

New York Times covers our 2013 brief in NLRB v. Canning and Bill Olson's 1981 Recess Appointment by President Reagan
January 10, 2014

Today the New York Times ran an article by its Chief Washington Correspondent Carl Hulse which discussed our brief in the NLRB v. Canning case being argued Monday. The article, entitled "Role Reversals Emerge in Dispute Over Obama's Recess Appointments," discussed Bill Olson's recess appointment by President Reagan in 1981 to be Chairman of the Board of the Legal Services Corporation.

The article does not mention that President Reagan's appointments of Bill and the other directors were challenged in U.S. District Court for the District of Columbia by the board members appointed by President Carter, including one of Bill's predecessor as Board Chairman -- Hillary Rodham, then First Lady of Arkansas. There, the 1982 challenge was on a different basis than the Canning case. In 1982, the contention was that LSC Board Members were not "Officers of the United States" within the meaning of Article II, section 2, clause 2 of the U.S. Constitution. The Rodham challenge was rejected by District Judge Norma Holloway Johnson, who pointed out the irony that four of the former directors filing the challenge had been appointed by President Carter, using the same recess appointment power which those plaintiffs were challenging.
http://lawandfreedom.com/site/special/LegalServCorpvOlson_MemOpin.PDF

Article about Utah polygamy ruling commented on by Herb Titus
January 9, 2014

Herb Titus was quoted in John Aman's article "'Gays' Move Over -- Here Come Polygamists" in WorldNet Daily.
The article discusses Judge Clark Waddoups Memorandum Decision and Order approving of polygamy, applying the U.S. Supreme Court's decision in Lawrence v. Texas.

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