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.
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.
We had previously filed another brief in the Peruta case on April 30, 2015, in the Ninth Circuit during its en banc proceeding.
Our comments explain how the proposed additions to the Form 4473 are unnecessarily confusing and often unauthorized. The form is already complex, presenting a legal hurdle for law-abiding Americans wishing to exercise their Second Amendment right. If ATF does not eliminate the Form 4473, it should, at a minimum, seek to simplify rather than further complicate the form.
Our comments explain how ATF’s proposed regulations would purportedly “implement” provisions of federal law; however, the regulations would actually rewrite federal law to further the goals of ATF.
Now living in Maryland, Hamilton has been told that Maryland will not recognize the restoration of his firearms rights by a Virginia Court. Our brief explains that under the U.S. Constitution’s “Full Faith & Credit Clause,” Maryland may not refuse to give recognition to the Virginia court’s restoration of rights, and argument that had not been made by Hamilton.
Today, for the first time in a decade, Justice Clarence Thomas asked a question during the oral argument of Voisine v. United States in the U.S. Supreme Court. And, his question was drawn from an amicus brief we filed in that case!!! And ours was the only amicus brief filed in support of Voisine.
The Voisine case involves the infamous Lautenberg Amendment — under which a person who commits a certain type of misdemeanor may suffer a lifetime ban on gun ownership. Our brief challenged the power of Congress to abolish a person’s constitutional right to keep and bear arms for the commission of a misdemeanor.
Justice Thomas began delving into the issue, which then attracted follow-up questions by Justices Kennedy and Breyer.
We are not new to this issue. The first time that we raised this issue was in the Skoien brief in the Seventh Circuit, filed April 2, 2010.
Indeed, we have filed 10 briefs on the broad issue of MCDV violations over the last decade. To see them all, use that tag “MCDV” on the left column of our website.
Our amicus brief was filed for Gun Owners of America, Gun Owners Foundation, Gun Owners of California, U.S. Justice Foundation, Conservative Legal Defense and Education Fund, and Institute on the Constitution.