Motion To Intervene Denied

As I said earlier today, there was the hearing on the Motion to Intervene this afternoon.

After hearing the arguments for and against, Judge Joel Cohen denied the Motion.

The basis for his decision as I can understand it is that having only two member representing the interests of the members was not enough. He kept referring to a 5% of the membership rule as the minimum needed to intervene. Even though the attorneys for the intervenors said they were representing a class of members, the judge disagreed. He kept coming back to the argument that if you let one group intervene then you have to let others intervene.

While it was assumed a sitting director would be joining the Motion to Intervene today, Judge Cohen said he could only rule on the motion in front of him. He did not rule out a revised Motion to Intervene with a sitting director as one of the intervenors.

It is a hell of thing when you have a group on one side that wants to do away with the NRA and a group on the other side that wants to keep looting it with no one allowed in the middle representing the millions of dues paying members.

Chipman Nomination Formally Withdrawn

While speculation earlier today was that the White House would announce the withdrawal of the nomination of David Chipman to be the director of BATFE next week, it came to an end much quicker. The White House formally withdrew the nomination this afternoon.

The formal announcement by the White House:

David Chipman spent 25 years in distinguished service to our country as an ATF agent. He’s a gun owner himself, and someone who has the backing of law enforcement groups. And, he’s spent most of last decade as a leading voice for commonsense gun violence prevention legislation that will save lives. He would have been an exemplary Director of the ATF and would have redoubled its efforts to crack down on illegal firearms traffickers and help keep our communities safe from gun violence.

Unfortunately, Republicans in Congress have made clear that they intend to use gun crime as a political talking point instead of taking serious steps to address it. That’s why they’ve moved in lockstep to block David Chipman’s confirmation, and it’s why they side with gun manufacturers over the overwhelming majority of the American people in opposing commonsense measures like universal background checks.

They even unanimously opposed the Rescue Plan, which has given cities and states $350 billion that they can use to put more cops on the beat so that they can really know the neighborhoods they patrol, and invest in proven community anti-violence programs – among other uses. While my administration has worked to strengthen law enforcement and crack down on gun crime, Republicans have opposed us at every turn.

We knew this wouldn’t be easy – there’s only been one Senate-confirmed ATF Director in the Bureau’s history – but I have spent my entire career working to combat the scourge of gun violence, and I remain deeply committed to that work. Since taking office, my Administration has taken numerous steps to combat gun violence, and we’ll continue to use every tool at our disposal to fight gun violence and keep Americans safe. I am grateful for Mr. Chipman’s service and for his work.  

I find it interesting that they are blaming firearms manufacturers and Republicans for the defeat. The reality is that David Chipman was a bad nominee, had plenty of baggage, and represented an extreme viewpoint. He was so extreme that you could not come up with enough Democrats to back his nomination.

On a snarky note, I think the person most upset by the failed nomination has to be Gabby Giffords. She thought she was finally going to be rid of Waco Dave and finds she is stuck with him.

Chipman Nomination Being Withdrawn?

In breaking news, the Daily Caller and Politico are reporting that the White House plan to withdraw the nomination of David Chipman to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

From the Daily Caller:

Senate Republicans across the board opposed Chipman, with Senate Minority Leader Mitch McConnell calling him an “anti-gun extremist” and Independent Maine Sen. Angus King previously noting he was not okay with the nomination, Politico reported. While Democrats like Joe Manchin of West Virginia and Jon Tester of Montana didn’t openly oppose Chipman, they wouldn’t give a definitive answer on where they stood, the report added.

The White House may withdraw Chipman’s nomination in the coming days, although an official date remains unclear, according to Politico.

Politico is attributing this to three sources “close to the process.”

They went on to add:

The White House declined to comment on the imminent yanking of the nomination. It’s unclear when the formal withdrawal of Chipman’s nomination will take place, though it could happen as soon as this week…

Nonetheless, the decision to pull the nomination sparked frustration from gun control advocate Fred Guttenberg, whose daughter was killed in the 2018 school shooting in Parkland, Fla. “I am truly upset,” tweeted Guttenberg, a Biden ally. “We have weak people serving the Senate such as @SenAngusKing who chose to listen to ‘regulated industry.’ Sadly the White House failed to put up a fight on this.”

While I say good riddance, I am fearful that the White House will nominate a stealth candidate who will be just as bad but without the baggage of David Chipman.

UPDATE: The Washington Post also is reporting on this story. They are putting the timeline as this week.

They added this:

The White House declined to comment. The people spoke on the condition of anonymity to speak freely about Chipman, who currently is a senior adviser to the Giffords gun control group. White House officials are trying to find another role in the administration for Chipman, said the people familiar with the matter.

Perhaps they can send him to Afghanistan to urge the Taliban to register all their confiscated M4s with the BATFE under the NFA. Yeah, right.

Motion To Intervene Hearing Today

The hearing on the Motion to Intervene on behalf of the members of the NRA in the dissolution lawsuit will be held this afternoon. Judge Joel Cohen issued a notice on Tuesday that the hearing will proceed as scheduled. It is set for 2:30pm in Manhattan.

In his letter to the court on announcing a sitting director of the NRA would be joining the Motion to Intervene, attorney Taylor Bartlett gave the court the option of postponing it as he expected both the NRA and the NY Attorney General’s Office would ask for time. Bartlett did note that they were ready to go.

We will know the name of the director or directors who will be joining the suit later today. Given a sitting director has the absolute right to intervene and thus has standing, it will be interesting to hear the arguments against allowing it.

If I can find an audio link to the hearing, I will post it.

Stay tuned!

Tweet Of The Day

The tweet of the day comes from the Firearms Policy Coalition with the reminder that tonight is the last time to make your voice heard on pistol braces.

Make sure to turn up your volume.

Natasha Marcus Finds GRNC Takes No Prisoners

You may remember NC State Senator Natasha Marcus (D-Mecklenburg). She is the senator who contended that North Carolina’s pistol purchase permit system was not racist despite its origins and its disparate impact on African-Americans. In her floor debate, she also made the claim that the law stopped more than 2,300 permits from being issued in her county despite having passed a NICS check.

It was an outrageous claim and not surprising coming from someone proudly claiming to be a member of Moms Demand Action.

Using both FOIA requests and multiple letters to Sen. Marcus, Grass Roots North Carolina found that her claims were, as the saying goes, made out of whole cloth. In other words, she made it up.

Grass Roots North Carolina is now asking that she receive formal discipline by the North Carolina Senate for her false claims.

From GRNC:

Group Demands Disciplinary Action 

Against Sen. Natasha Marcus

NC State Senator propagates falsehood during floor 

debate over purchase permit repeal bill

[Raleigh] Grass Roots North Carolina today demanded disciplinary action by Senate President Pro Tempore Phil Berger against Mecklenburg County Senator Natasha Marcus after finding conclusive documentation that during the Senate floor debate over House Bill 398 (“Repeal Purchase Permits”), Marcus falsely claimed to have proof that repealing the purchase permit system would result in handguns purchased by unqualified buyers who pass the FBI computerized background check but otherwise “failed the permit application.”

FOIA requests to the Mecklenburg County Sheriff Office (MCSO) now conclusively demonstrate that the numbers claimed by Marcus are false, demonstrating that she mislead her colleagues and constituents alike during debate over the bill.

Below is the letter delivered today to Sen. Berger demanding formal disciplinary action under Article II, Section 20 of the North Carolina Constitution. Copies of the letter from MCSO documenting the falsehood as well as the legal memo from GRNC Director of Legal Affairs Ed Green are available upon request.

———————————–

September 8, 2021

The Honorable Phil Berger, President Pro Tempore

16 West Jones Street, Room 2007

Raleigh, NC 27601

Dear Senator Berger:

Grass Roots North Carolina has now received conclusive proof that in the August 18, 2021 Senate floor debate over House Bill 398 (“Repeal Purchase Permits”), Sen. Natasha Marcus used false information to  attack the bill. 

As documented in the recording we have posted at https://www.grnc.org/hb-398-audio, Marcus claimed background checks for pistol purchase permits (PPPs) are supposedly superior to those conducted under the FBI’s National Instant Background Check System (NICS), saying:

“In Mecklenburg County, in the last fiscal year, over 2,300 permit applications passed the NICS background check but failed the permit application. So if this bill passed, all 2,300 plus of those applicants will now have a new unrestricted pass to purchase a handgun…”

That assertion is false. As outlined in the attached letter from Mecklenburg County Sheriff Office Public Information Manager Janet Parker in response to a FOIA request by GRNC Director of Legal Affairs Ed Green, the number of permit denials claimed by Marcus is not of people who passed NICS but were denied by Sheriff Garry McFadden; in fact, it represents all permit denials for the fiscal year 2021, including those denied via NICS.

When questioned on the source of her information, Marcus failed to provide the data for eight days, claiming that her unspecified “source” was gathering documentation. Only in response to my open letter to the Senate did she claim the information was provided by Permitium, LLC lobbyist Andy Munn in a series of text messages for which she provided screen images.

When called out publicly, Marcus doubled down on her claim, saying: 

“You will see that the texts confirm exactly what I said on the floor: More than 2,300 permits were denied in Mecklenburg County during the last fiscal year due to issues that became apparent AFTER the applicant had passed a NICS check.  This proves that the permit check system is neither duplicative nor unnecessary. It is an important tool to keep handguns away from dangerous and unstable people and it saves lives.  Your efforts to eliminate it are reckless.”

But referencing the number of denials claimed (2,379) to have passed NICS but “failed the permit application”, MCSO’s Public Information Manager responded:

“The number of PPP application denials in your request appears to represent the total number of denials (or very close to the actual total) for the entire fiscal year, including denials based on NICS disqualifiers. MCSO does not keep records distinguishing reasons for denial contained within NICS and reasons for 

denial outside of NICS. Nor does the MCSO keep easily accessible records that indicate all of the reasons for a PPP application denial when there are multiple reasons for denying a single application.”

Facts about Mecklenburg County pistol purchase permit denials:

  • MCSO does not keep the statistic claimed by Marcus: Permitium lobbyist Andy Munn could not tell Marcus how many passed NICS but failed the application because MCSO does not enter or store that information.
  • Marcus’ claim covers all denials, including those stopped by NICS: The total number of denials was 2,378 including those stopped by NICS – one less than Marcus claimed “passed the NICS background check but failed the permit application.”
  • The denials do not mean 2,378 people couldn’t purchase handguns: Some reasons for denial, such as failure to pay the permit fee or sign the release, or failure to provide previously requested documentation, were probably cured in a subsequent application that resulted in issuance of a PPP.
  • Denials included 426 who weren’t residents of Mecklenburg County: These applicants were likely eligible to own firearms but simply applied in the wrong county.

Sen. Marcus should be held to account:

Because effective public policy relies on accurate, honest information, propagating false information to colleagues and constituents represents serious misconduct, particularly when the falsehoods are uttered in a floor debate to mislead legislative colleagues with respect to legislation under debate.

Accordingly, please consider this a request by Grass Roots North Carolina for Senate leadership to formally discipline Senator Natasha Marcus as authorized under Article II, Section 20 of the North Carolina Constitution, the authority for which is outlined in a January 9, 2008 North Carolina House of Representatives memo entitled “Authority of Legislative Bodies to Discipline Members.” 

Respectfully,

F. Paul Valone

President, Grass Roots North Carolina

Executive Director, Rights Watch International

Radio host, Guns, Politics and Freedom

Comments On Pistol Brace Ban End At 11:59pm EDT Tonight

The comment period on the BATFE’s proposed rule that would make virtually all firearms with a pistol brace a NFA item requiring both registration and a $200 tax closes tonight at 11:59pm Eastern Daylight Time.

If you have not submitted a comment, do it. The numbers are important and you know that Giffords, Brady, and the rest are pushing their useful idiots to submit comments. The latest reported number of comments was over 180,000. It needs to be more.

First, your comment needs to have the proposed rule number on it – ATF 2021R-08.

Second, while you can say “I oppose it” or “mah rights”, those will get overlooked. It is much better to pick one thing and expound on it. For example, you could say it discriminates against the disabled in violation of the Americans with Disability Act.

Third, the Second Amendment Foundation has put out a good “how to” list on making comments. Read it and then comments. Your comment need not be long.

Fourth, you might pick something from the public comments submitted by the SAF, the FPC, or the NRA and use that.

Fifth, use this link.

Finally, if all else fails, GOA has a pre-written comment which you can add on to that makes it easy to comment.

UPDATE: I have commented probably more than once. However, this is the comment that I submitted today. You can copy it if you wish.

Re: ATF 2021R-08

I object to the proposed rulemaking entitled “Factoring Criteria for Firearms With Attached “Stabilizing Braces””.

The factoring criteria are vague and contradictory. For example, what are features that prevent use as a shouldering device? Is it a spike that would make it painful to shoulder the pistol, is it a bare buffer tube for an AR pistol, or may it have a crutch tip on it? When you are creating factoring criteria for rulemaking that would involve criminal penalties, any hint of vagueness calls its constitutionality into question.

This rulemaking is not entitled to Chevron deference. As stated by Judge Karen Batchelor of the 6th Circuit Court of Appeals in GOA v. Garland, “But in 2014, the Court said, “we have never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U.S. 359, 369 (2014)(emphasis added) (citing Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J.,concurring in the judgment)). “Never” and “any” are absolutes, and the Court did not draw any distinctions, add any qualifiers, or identify any exceptions.”

By reclassifying pistols equipped with a brace that fail your vague factoring criteria as “short barreled rifles” as defined under Title 27 CFR Chapter II, §479.11 and thus must be registered under the Title 27 CFR Chapter II, §479.84 thru 86, you have now made it a criminal offense not to register and pay the tax on these pistols. Per 26 US 5871, violations carry a penalty of a $10,000 fine and up to 10 years imprisonment. If Congress wishes to add pistols equipped with arm braces to the National Firearms Act, that is their job and not yours.

Finally, the numbers of pistols with arms braces in circulation as described by the BATFE is approximately 2-3 million. This conflicts with both industry reports and that of the Congressional Research Service which puts estimates in the 10-40 million range. Your proposed rulemaking would thus make up to 40 million American citizens potential felons if this rule is adopted.

NRA Dissolution Lawsuit Promises To Get More Interesting

In June, Frank Tait and Mario Aguirre filed a motion seeking to intervene on behalf of NRA members in the NRA dissolution case brought by New York Attorney General Letitia James. Their contention, rightly in my opinion, was that no one was adequately representing the approximately five million NRA members.

As you might expect, both the Attorney General and the NRA have objected to this. A hearing is currently scheduled for September 9th to hear arguments relating to this motion.

Last year, I had some discussions with others who were interested in seeing an intervenor motion filed in the dissolution lawsuit. One of the major issues brought up was that there was some doubt that under New York that members themselves would have standing. It was thought that only a sitting director would have standing to intervene in the dissolution lawsuit.

We now know, thanks to a letter filed this afternoon with the court by Taylor Bartlett, attorney for Tait and Aguirre, that this issue will now be off the table. There will be one, if not two, sitting directors joining the motion to intervene on behalf of the members of the NRA.

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William Brewer himself, the world’s most brilliant attorney according to some of the lesser minds on the NRA board, wasted no time filing a letter to the judge stating that he found the request for leave by the intervenors to file an amended motion “improper”. He then indicates in so many words that the NRA is prepared to fight this motion.

I have been told confidentially the name of one of the potential directors who will be joining in the motion to intervene. As such, I respect that trust and will hold off on announcing the name until it is announced in the court proceedings.

I would also point you to a post this afternoon by David Codrea concerning this letter to the court by Taylor Barlett for his take on it.