Today our firm filed an amicus brief in a challenge to a California law limiting the capacity of magazines to 10 rounds. We explain that the two-step test used by the lower federal courts undermines the U.S. Supreme Court decisions in Heller and McDonald. And we explain that weapons useful in military service are exactly the type of weapons covered by the Second Amendment under United States v. Miller and Heller.
Today we filed our reply brief in the Sixth Circuit challenge to the ATF bumpstock regulations brought by Gun Owners of America. The issue is the district court’s refusal to issue a preliminary injunction to stop the ATF from declaring bump stocks contraband, by classifying them as machine guns.
Today we filed our second amicus brief in the defense of a firearms manufacturer who was sued in Connecticut after the Sandy Hook shooting. Our prior brief was in the Connecticut Supreme Court. This brief supports the manufacturer’s effort to obtain review by the U.S. Supreme Court. Most of the plaintiffs’ theories were rejected by the Connecticut Supreme Court, but it allowed the case to proceed based on advertising that supposedly would have appealed to young males to conduct shootings. Our brief explains why the Connecticut Court erred in its creation of a huge exception to the federal Protection of Lawful Commerce in Arms Act, a statute designed specifically to protect firearms manufacturers and dealers from suits such as this one.
Today we filed our opening brief in the Sixth Circuit case of Gun Owners of America v. Barr — challenging the district court’s refusal to issue a preliminary injunction to stop the ATF total ban on the private ownership of bump stocks.
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.
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.
Today our firm filed an emergency application for stay with the U.S. Supreme Court (directed to Justice Sotomayor, Circuit Justice for the Sixth Circuit), requesting that the Court stay the effective date of the ATF’s Final Rule banning bump stocks pending review of the case by the 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.
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.
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.
Daily Caller article discusses our comments opposing Bump Stock Ban for Gun Owners Foundation.
Townhall covered our comments to ATF on Bumpstock Regulations for Gun Owners Foundation.
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.
Today, we submitted comments to ATF on clarifying whether “bump fire” stocks fall within the statutory definition of “machinegun.” Our comments were filed on behalf of Gun Owners Foundation.
Today, the U.S. Court of Appeals for the Tenth Circuit held oral argument on the Kettler case. Our co-counsel in the case, Joe Miller, presented oral argument for Mr. Cox. The panel hearing the appeal consisted of Judges Hartz, Seymour and Phillips.
The oral argument my be listened to here.
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.
Today we filed an amicus brief in the U.S. Supreme Court, asking that Court to review a decision of the Fourth Circuit which would strip the Second Amendment rights of Marylanders.
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.
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.