Johnson v. United States

admin Constitutional Law, Firearms Law, U. S. Supreme Court

Today we filed an amicus brief urging the U.S. Supreme Court to re-examine its Terry v. Ohio, stop-and-frisk doctrine. Although Terry stop and frisks were limited to a search for weapons, in this case one was used to justify seizing a bullet. Since that decision in 1968, both Fourth and Second Amendment law has changed. The property basis of the Fourth Amendment has been re-established, and the Second Amendment has been recognized as protecting an individual right. Read More

New York State Rifle & Pistol Association v. City of New York (Merits)

admin Constitutional Law, Firearms Law, U. S. Supreme Court

Today we filed our second amicus brief in support of a challenge to New York City’s near prohibition on transporting firearms.  This is the first Second Amendment case that the U.S. Supreme Court has heard since Heller (2008) and McDonald (2010).  Our brief details the lower courts’ open prejudice against gun rights and its disregard for the Supreme Court’s protection of Second Amendment rights since those earlier cases. Read More

Bump Stocks: GOA Files 28(j) Letter in Sixth Circuit

admin Firearms Law, Litigation, U. S. Court of Appeals, Sixth Circuit

Today our firm filed a 28(j) letter with the Sixth Circuit, citing additional information in the D.C. Circuit cases of Guedes and Codrea.  We point out that although the courts have issued stays in these and similar cases, the stays only apply to the specific appellants in each case, and do not grant the nationwide relief to bump stock owners being sought by Gun Owners of America, et al.

Link to letter

Bump Stocks: Emergency Petition for Writ of Mandamus Filed in Sixth Circuit

admin Firearms Law, Litigation, U. S. Court of Appeals, Sixth Circuit

The ATF reclassification of bump stocks as machineguns will take effect on Tuesday, March 26.  The federal district court in which we challenged this classification change has yet to rule on our motion for an injunction.  Therefore, we were forced to file this emergency petition in the U.S. Court of Appeals for the Sixth Circuit.

Link to petition

Jeremy Kettler v. United States

admin Constitutional Law, Firearms Law, Statutory Construction, U. S. Supreme Court

Today, we filed a Petition for Certiorari on behalf of Jeremy Kettler, who was convicted of possessing an unregistered firearm suppressor.  Our petition asks the Supreme Court to review the Tenth Circuit’s decision, and to determine whether the National Firearms Act continues to be an appropriate exercise of Congress’s taxing power due to the many changes that have been made to the NFA over the last eight decades.  Additionally, if the NFA is still justifiable under the taxing power, we have asked the Court to determine whether firearm accessories such as suppressors are protected by the Second Amendment and whether the NFA is impermissible as a tax on the exercise of a constitutional right. Read More

Young v. Hawaii

admin Constitutional Law, Firearms Law, U. S. Court of Appeals, Ninth Circuit

Today we filed an amicus brief opposing a request for rehearing by the State of Hawaii of a Ninth Circuit decision which overturned Hawaii’s virtual ban on citizens bearing weapons.  We opposed Hawaii’s argument that its laws against carrying firearms were long-standing, explaining that those laws existed when Hawaii was a monarchy where the reigning king or queen was sovereign — not as in the United States where the people are sovereign.

Link to brief

Comments to ATF Opposing Bump Stock Restrictions (Round 2)

admin Administrative Law, Firearms Law

Today we submitted another set of comments to ATF opposing its Notice of Proposed Rulemaking which would reverse long-standing ATF policy to determine, in violation of federal law, that a “bump fire” stock constitutes a “machinegun.”  Our comments were filed on behalf of Gun Owners Foundation.  Earlier, on January 18, 2018, we filed comments for GOF on the ATF’s Advance Notice of Proposed Rulemaking.

Link to comments

United States v. Kettler — Reply Brief

Jeremiah Morgan Constitutional Law, Firearms Law, U. S. Court of Appeals, Tenth Circuit

Today, we filed a reply brief responding to the Government’s brief in opposition on behalf of Jeremy Kettler.  Mr. Kettler was convicted in federal district court of possessing a firearm noise suppressor that was not registered to him pursuant to the National Firearms Act (“NFA”).  Read our previous discussion of the case and opening brief here.

Read Reply Brief here.

 

Third Set of Comments filed with Bureau of Alcohol, Tobacco, Firearms & Explosives opposing Multiple Rifle Sale Reporting

Jeremiah Morgan Administrative Law, Firearms Law

Today, 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, about six years ago ATF created a new 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.

Read Comments here.

United States v. Kettler

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, Tenth Circuit

Today, we filed a brief in the U.S. Court of Appeals for the Tenth Circuit as co-counsel for the defendant, Jeremy Kettler. Mr. Kettler was convicted in federal district court of possessing a firearm noise suppressor that was not registered to him pursuant to the National Firearms Act (“NFA”).

In purchasing his suppressor, Mr. Kettler had relied on the Kansas Second Amendment Protection Act which states that a firearm or firearm accessory (such as a suppressor) that is manufactured, owned, and kept entirely within the borders of Kansas is not subject to any federal law. When Mr. Kettler revealed that he purchased such a suppressor, however, agents from the Obama Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) swooped in to make an example of Mr. Kettler, and his co-defendant Mr. Cox.

In our brief, we argued that the NFA is unconstitutional. Although for many decades, courts (including the Supreme Court) have upheld the NFA under Congress’ power to tax, times have changed. Today, the NFA is the only “tax” that is not administered by the Treasury Department, but rather by ATF — part of the Department of Justice — responsible for enforcement of federal law. What’s more, while normal taxes are crafted to ensure that people pay them, the NFA “tax” is crafted to ensure that as many people as possible are disqualified from paying it, and as many weapons as possible are disqualified from registration. That hardly sounds like a real tax.

Next, we noted that in 1934, registration of an NFA firearm was relatively simple, while today it is a regulatory nightmare, indicating that today the purpose of the NFA is regulation, not taxation.

Finally, we noted that while the NFA in 1934 actually produced tax revenue, its “taxes” have never been raised from $5 and $200, and thus today it produces no net revenue — and in fact is a huge drain on federal resources. How can the NFA be a “tax” when its net effect is to cost the taxpayer tens of millions of dollars annually?

Next, we argued that even if the NFA is considered a tax, then it is an unconstitutional tax on the constitutionally protected right to keep and bear arms. As the Supreme Court has held, in order to validly tax a constitutional right, a tax must not be a general revenue tax, but instead must be tied to defraying the expenses of administering the program. However the NFA “tax” is paid directly to the Treasury Department, and is not used by ATF to fund the administration of the NFA. And since suppressors are owned and lawfully used by millions of law abiding Americans, they are clearly protected “arms” under the Second Amendment’s protection.

Next, we noted that Mr. Kettler’s prosecution is not an ordinary criminal prosecution, but rather a constitutional dispute between two sovereign entities — the federal government and the State of Kansas. As such, the federal government should have resolved this dispute directly with the State of Kansas, rather than going after Mr. Kettler, the low hanging fruit. This case raises important constitutional questions about the scope of federal power, and its proper resolution is between the United States and Kansas — not between the United States and Mr.
Kettler.

Finally, we noted that in this case, Mr. Kettler had no sort of typical “mens rea” or “guilty mind” indicating he intended to violate the law. Rather, it is undisputed that he was attempting to follow the Kansas law, and that he believed (even if mistakenly) that what he was doing was lawful. For the Court of Appeals to permit his felony conviction to stand under such circumstances is indefensible.

Link to brief

Soto v. Bushmaster

Michael Harless Firearms Law, Supreme Court of Connecticut

Today, May 30, 2017, we filed an amicus brief in the Connecticut Supreme Court in support of gun manufacturers Bushmaster and Remington, who had been sued by the families of the Sandy Hook school shooting victims.

The plaintiffs in the case had brought a “negligent entrustment” claim, arguing that the AR-15 style rifle should never have been sold because it was foreseeable that it would be used in the crime.  However, as we pointed out, neither the manufacturer, distributor, nor dealer did anything wrong with respect to this particular sale — the essence of a legal negligent entrustment claim.  Rather, the Plaintiffs instead were making the policy argument that generally no one should ever be permitted to sell any AR-15.  In other words, they were asking judges to legislate to ban AR-15 style rifles.

Our brief also dispelled the false claims made by the plaintiffs’ attorneys about AR-15 style rifles.  They had argued that AR-15s are “so powerful,” yet as we pointed out, the .223/5.56 cartridge is on the low to medium end of most center-fire rifle calibers.  The plaintiffs had argued the AR-15 is “so accurate” that it’s not even necessary to aim, but we argued that the platform is not any more inherently accurate than most other modern rifles, and in fact the lightweight bullet means other calibers far outclass it at distance.  The plaintiffs had argued that the AR-15 is “so destructive,” yet as we argued, it doesn’t hold a candle to most other popular calibers like the .308 and the .30-06.  Finally, the Plaintiffs had argued the AR-15 is a “feat of human engineering.”  Of course, the AR-15 is a well designed and popular rifle, but it’s nothing more than the latest in a long line of advancements in firearms technology.  When the semi-automatic firearm, the lever action firearm, and the breech loading firearm were developed, each one was capable of much greater firepower than the firearms which proceeded them.  Yet no one wants to ban the lever action .30-30.

The Sandy Hook shooting was a terrible tragedy.  But the AR-15 is not to blame.  Neither is Remington, Bushmaster, the distributor, or the dealer who lawfully and responsibly sold one to Adam Lanza’s mother years before her son murdered her, stole her firearms, and used them for evil.

Link to brief

Hamilton v. Pallozzi

Michael Harless Firearms Law, U. S. Court of Appeals, Fourth Circuit

Today, we filed our second amicus brief in this case, in support of a petition for rehearing en banc in the U.S. Court of Appeals for the Fourth Circuit.  We urged the Fourth Circuit to rehear the case, because the panel decision ignored the requirements of the U.S. Constitution’s Full Faith and Credit clause.  The issue involved a Maryland resident’s right to purchase and possess firearms despite the judicial removal of disability to own firearms by a Virginia court after a Virginia conviction.

Link to brief

Peruta v. California

Michael Harless Constitutional Law, Firearms Law, U. S. Supreme Court

Today we filed a brief in the U.S. Supreme Court in support of the petition for certiorari filed in the Peruta challenge to California concealed carry laws.  Our brief, however, urged the Supreme Court to grant certiorari to review a broader issue than that sought by the petitioners, and based on a more robust understanding of the protections afforded by Second Amendment than that urged by petitioners.

We had previously filed another brief in the Peruta case on April 30, 2015, in the Ninth Circuit during its en banc proceeding.

Link to brief

Link to previously filed brief