Schrödinger’s NRA

Normally I would call this post “Tweet of the Day”. However, I found the title in Rob Romano’s tweet too good not to use.

Rob is the creator of the invaluable Gun Case Tracker which follows virtually every 2A related case at the Federal and state level. He is also the Community Communications Director for the Firearms Policy Coalition.

For those of us in the gun rights community, the acronym NRA means the National Rifle Association. For anti-gun politicians and the media, it is shorthand for both the National Rifle Association and every other gun rights group. Given their top-down approach, it is hard for them to conceive that the largest organization doesn’t control everything. It is also hard for them to conceive that the grassroots can actually make their voice heard without a lot of prodding from the folks in Fairfax.

Here are the pair of great tweets from Rob:

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.

FPC Explains ATF Actions

The Firearms Policy Coalition has posted a long Twitter explanation of what the withdrawal of the ATF’s Request for Comment may mean as well as digging deeper into the language used in both the withdrawal and the original document. It is well worth a read to comprehend what we are facing.

FPC Has Perceptive Comment On ATF Blinking

The Firearms Policy Coalition, in their note on BATFE withdrawing their Request of Comment had a very perceptive on it that needs to be read. I think they are absolutely correct that BATFE may very well come back with something even worse.

While the ATF is apparently withdrawing this particular “guidance” at this time, the matter is still “pending further Department of Justice review,” which could lead to ATF taking different and potentially far more aggressive actions in the near future, especially under a Joseph Biden-led administration. Rather than publishing guidance, or conducting a rule-making process with notice and comment under the Administrative Procedure Act, such as the Trump Administration engaged in for its ban on bumpstock-type devices, the ATF and DOJ may simply begin to prioritize enforcement actions based upon their clearly erroneous and dangerously broad reading of the law, such as by arresting and prosecuting those who merely possess a stabilizing brace-equipped handgun.

“The National Firearms Act and Gun Control Act, along with their regulations, clearly state objective criteria as to whether a firearm is a short barrel rifle, short barrel shotgun, or any other weapon,” explained Adam Kraut, FPC’s Director of Legal Strategy. “It remains evident that ATF’s policy preferences are hostile to law-abiding Americans and the agency’s schizophrenic approach to addressing these issues places individuals at risk of prosecution for simply following and relying on guidance from the agency.”

“The ATF’s withdrawal of their proposed guidance should be the end of the road for this assault on lawful accessories and law-abiding gun owners, but we know better. FPC will continue to carefully monitor and evaluate ATF policies and enforcement practices for violations of the law and our Constitution, and as we have before, rapidly respond with forceful and appropriate action,” concluded Kraut.

BATFE To Issue “Guidance” On Pistol Braces

Firearms attorney Joshua Prince posted an alert last night regarding a move by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to institute a rulemaking with regard to pistol braces. He had been given a draft copy of their proposal. Included in that proposal which I have embedded below, was a plan for DOJ to “subsequently implement a separate process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA.”

Atf Federal Register Notice Objective Factors for Classifying Stablizing Braces Draft 12-16-20 by jpr9954 on Scribd

As Mr. Prince notes, the BATFE seems to be planning only a 14-day comment period which seems to be in violation of the law. With the incoming and virulently anti-gun Biden Administration, one must wonder whether adherence to the law will matter to them. Even before the Electoral College met, the leadership of BATFE in the persons of Acting Director Regina Lombardo and Deputy Director Marvin Richardson (no relation) apparently has been reaching out to the Biden Administration on new gun control measures.

The Firearms Policy Coalition sent out a release on this late last night. They offer their initial thoughts on it. I think it is worth reading in its entirety.

WASHINGTON D.C. (December 16, 2020) — Your FPC team is in receipt of a draft notice from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) regarding how the agency will be evaluating weapons with “stabilizing braces.” Based upon our initial review of this notice, we offer these thoughts for your consideration:

1) The draft document does not appear to reflect a new “ban” on pistol braces or firearms with such devices. The ATF, evidently, is not indicating that the mere presence of a brace on a pistol automatically converts the firearm into one under the purview of the National Firearms Act (“NFA”). (Indeed, the ATF has no authority to declare accessories like pistol braces to be NFA components, though the agency’s previous conduct provides little reassurance.)

2) The draft document instead purports to be intended to inform the public on how brace-equipped firearms will be examined in the future. Based on the criteria set forth in the draft document, it appears that the ATF would take something of a totality of the circumstances approach in determining whether a specific brace-equipped pistol is a ‘short-barreled’ firearm regulated under the NFA. These criteria include: the firearm’s type, caliber, weight, and length, the design of the brace itself, whether the firearm can be properly aimed when using the attachment as a brace, and whether an optic that cannot properly be used one-handed is present (i.e., something that suggests intent). The agency also indicates that it will observe the marketing of firearms and accessories, as well as other more subjective factors.

3) Importantly, the draft document recognizes that most people with braced firearms have acted in good faith. It suggests that the agency seeks to establish a procedure by which people who already have firearms that may fall under the purview of the NFA, and who wish to take advantage of registering them as NFA firearms to obtain the legal protections of such, may potentially do so without payment of the associated tax.

FPC believes that the NFA is an unconstitutional infringement of the People’s rights, that the ATF should be abolished, and that any policy or practice enforcing the Act is unconstitutional and immoral. 

With that said, the policies in the draft document do not appear to be a significant departure from previous publicly undisclosed agency policies, some of which were discovered through criminal prosecutions, FOIA requests, and other sources. Your FPC team will be monitoring the situation closely. If anything changes we will let you know as soon as possible.

While I don’t believe Joe Biden has the cognitive ability to discern whether such measures are legal, I believe he will rubber-stamp any and all such attempts to restrict rights and rewrite both law and regulations. In other words, he will do as he is told.

Cal DOJ Says Not So Fast

Despite the win in Duncan v. Becerra, neither the District Court nor the 9th Circuit Court of Appeals has lifted the stay of the original ruling. Thus, despite what you might see from a number of dealers of standard capacity magazines, they still cannot be shipped to California at this time.

The Firearms Policy Coalition posted the notice from the California Department of Justice regarding this to Twitter.

In addition to warning both companies and California purchasers regarding the existing stay, it also serves to give notice that California will be appealing Judge Lee’s ruling and asking for an en banc hearing. However, as of this morning, no appeal had been filed.

New Jersey Backs Down

News comes this afternoon that New Jersey Gov. Phil Murphy (D-NJ) has backed down from his order that all gun stores are non-essential and must close. His order led to a lawsuit from the Second Amendment Foundation and the Firearms Policy Coalition entitled Kashinsky v. Murphy.

SAF provides more info in this release:

The Second Amendment Foundation declare victory today when New Jersey Gov. Phil Murphy backed away from his earlier position on gun shop operations in the state during the current COVID-19 panic, and will now allow operations by appointment.

SAF sued Murphy and acting State Police Supt. Col. Patrick Callahan in U.S. District Court last week, seeking a preliminary injunction and temporary restraining order. They were ultimately joined by the New Jersey Second Amendment Society, Legacy Indoor Range and Armory LLC and the Firearms Policy Coalition (FPC), Racing Rails LLC d/b/a Legend Firearms and several private citizens. Plaintiffs were represented by noted civil rights attorney David Jensen of New York and Adam Kraut of California.

“We’re delighted that Gov. Murphy has reversed course on this matter, even if it took a lawsuit to get him to do it,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Our lawsuit cut right to the heart of what the Second Amendment is all about, which is personal protection during emergency situations like the ongoing coronavirus pandemic that has gripped the nation.”

Murphy found himself in the uncomfortable, and untenable, position of having to defend his armed protection detail while having closed down Garden State gun shops, making it impossible for average citizens to by even ammunition, much less a firearm.

“While we pursue litigation elsewhere,” Gottlieb said, “we’re happy that the situation in New Jersey has changed. Regardless what some politicians might think, the Second Amendment is not subject to emergency orders, same as the First, Fourth, Fifth or other constitutional protections.

“This is one more example of SAF’s ongoing mission to win back firearms freedom, one lawsuit at a time,” he concluded.

While I might have liked to say it was ScotShot’s guest editorial that convinced him to change his mind, I think it is more likely the combination of the lawsuit and President Trump declaring the firearms industry including gun stores as essential businesses.

Three Of My Favorite Groups Unite To Take On Wake Sheriff

Wake County (NC) Sheriff Gerald Baker should be feeling a bit uneasy right about now. That’s because three of my favorite groups – Grass Roots North Carolina, the Second Amendment Foundation, and the Firearms Policy Coalition – have come together to file suit against Baker’s refusal to even take applications for the Jim Crow-era pistol purchase permit.

For those that don’t know, in North Carolina, you need a pistol purchase permit to purchase a handgun regardless of whether it is from a dealer or a private individual unless you possess a NC Concealed Handgun Permit. As I’ve written about it many a time, the law was passed in 1919 in an unspoken but well understood effort to keep African-Americans, Populists, and union backers disarmed.

The suit has been filed in US District Court for the Eastern District of North Carolina. The individual plaintiff is Kerry Stafford who decided a handgun was the proper firearm with which to defend herself and her family. After calling the Wake County sheriff’s department for an PPP application, she was refused.

The complaint alleges that Sheriff Baker has exceeded his discretion and has violated the Second and Fourteenth Amendments depriving Ms. Stafford and others of their constitutional rights under color of law. It asks that either an injunction be issued or that the requirement for a pistol purchase permit be waived until April 30th.

It is great to see these groups working together. For GRNC and SAF, it is a reprise of the joint efforts that led to the win in Bateman v. Perdue.

They issued a joint release which I have copied below:

GRNC, SAF, FPC File Federal Lawsuit Against Wake County, NC Sheriff Over Constitutional Violations

RALEIGH, NC (March 27, 2020) ­— Today, attorneys for an individual Wake County, North Carolina resident, Grass Roots North Carolina, Second Amendment Foundation (SAF), and Firearms Policy Coalition filed a federal lawsuit challenging Wake County Sheriff Gerald M. Baker’s recent actions infringing on Second and Fourteenth Amendment rights he announced as a response to the COVID-19 coronavirus pandemic. A copy of the lawsuit can be found at:

https://www.grnc.org/documents/Complaint-Wake-County-Filed.pdf

This latest case tracks a 2011 federal court victory in Bateman v. Perdue, also led by plaintiffs Second Amendment Foundation and Grass Roots North Carolina, which successfully challenged North Carolina statutes restricting firearms during states of emergency.

“Although Sheriff Gerald Baker claims his refusal to accept applications for pistol purchase permits and concealed handgun permits doesn’t infringe on individual rights, nothing could be further from the truth,” said GRNC president Paul Valone. “During this emergency, as always, GRNC intends to ensure that lawful North Carolinians have the means to protect themselves and their families.”

“Sheriff Baker is implementing by fiat what the Supreme Court struck down in Heller – a ban on a citizen’s right to purchase a handgun for the defense of hearth and home. This action cannot be allowed to stand,” said GRNC Director of Legal Affairs Ed Green.

“Times of emergency is when you need the ability to obtain the means of self-defense the most. Suspending that right is not acceptable. That is why this lawsuit is so important,” commented SAF founder and Executive Vice President, Alan Gottlieb.

“Sheriff Baker’s unconstitutional actions have and will deprive law-abiding, peaceable individuals the opportunity to obtain handguns, the ‘quintessential self-defense weapon’ according to the U.S. Supreme Court, in a time where the arms are most needed,” explained attorney and FPC Director of Legal Strategy, Adam Kraut. “Sheriff Baker’s actions to stop processing and issuing required  Pistol Purchase Permits violate fundamental human rights. We are proud to join GRNC and SAF in this fight to defend the rights of North Carolinians.”

Individual arms applicants/purchasers and retailers affected by ‘stay-home’ or shutdown orders can report potential civil rights violations to FPC’s COVID-19 Issue Hotline at www.FPChotline.org

Plaintiffs are represented by attorneys Ed Green, Raymond M. DiGuiseppe, and Adam Kraut.

Grass Roots North Carolina (www.grnc.org) is North Carolina’s most effective gun rights organization. GRNC was founded in 1994 as an independent, all-volunteer 501(c)(4) not-for-profit organization dedicated to preserving constitutional freedoms. The organization’s projects are primarily devoted to defending the individual right to keep and bear arms.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing, and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, advance individual liberty, and restore freedom.

Some People Will Believe Anything!

March for Our Lives, the children’s crusade against firearms, has just shown their gullibility and ignorance. If it involves guns, they will believe anything an anti-gun politician spews out.

They have retweeted an absolute lie told by Pennsylvania Attorney General Josh Shapiro (D-PA). He wants people to have the impression that it was the National Rifle Association that sued him after his autocratic redefinition of what constitutes a firearm. Shapiro knew that throwing the name “NRA”, the term “ghost guns”, and tying it into crime was red meat for your average ignorant anti-gunner.

Look at the first page of the application for an emergency preliminary injunction. That action is being brought by a Pennsylvania FFL, a New Hampshire FFL, a manufacturer and dealer in what are called 80% lowers, and the Firearms Policy Coalition. No where do you see that the NRA is involved in this case. Indeed, if you had attended the Meeting of Members at the 2019 NRA Annual Meeting, you know that that old guard had nothing but disdain for attorneys Josh Prince and Adam Kraut. Don’t forget that Marion Hammer has called Adam “the enemy within”.

Shapiro sent out his original tweet the day after the application was filed. He knew or should have known that the NRA had nothing to do with this case.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives has consistently held that unfinished forgings or castings that are “completely solid and un-machined in the fire-control recess area” are not firearms and not subject to the Gun Control Act of 1968. See the attached determinations beginning on page 67 of the application for an injunction. Moreover, BATFE doesn’t even use the term “80% lower” or “80% frame” which is more of a marketing term than anything else.

As Josh Prince notes in his law firm blog, only the Pennsylvania General Assembly has the power to write law and it cannot be delegated. In other words, Shapiro’s “legal opinion” is making law and therefore invalid.

With regard to Shapiro’s claim that he is being sued by “companies that fund the @NRA”, only Polymer 80 exhibited at the most recent NRA Annual Meeting in Indianapolis. Having a booth at a national show which attracts thousands of gun owners is smart business for Polymer 80. While the NRA does gain some marginal revenue, “funding the NRA” is not Polymer 80’s purpose in being there. Just like we are all the “gun lobby”, so, too, we are all “funding the NRA” through our memberships.

Politicians and their PR flacks will say anything to push their position. Sometimes it is true. More often it is either the shading of the truth or an outright lie. I’ll let you decide what Shapiro was trying to do with his tweet.

March for Our Lives’ tweet, on the other hand, is a demonstrable lie. Like naughty children, they should be sent to their room with no TV, no phone, and no Internet to think about the consequences of their lie.

Adam Kraut’s “Other Exciting Opportunities”

Adam Kraut in his open letter explaining why he was declining the opportunity to serve on the NRA Board of Directors said he wouldn’t have time to adequately devote to the position. This was “because of the magnitude of time, work, and attention these exciting and important new endeavors that I am currently involved in require.” We now know what those endeavors entail. Adam will be the new Director of Legal Strategy for the Firearms Policy Coalition.

The announcement from the FPC is below. Also joining Adam will be attorney Joseph Greenlee as Director of Research and attorney Matthew Larosiere as Director of Legal Policy.

August 5, 2019 – Firearms Policy Coalition (FPC) announced today the addition of three constitutional law attorneys with significant research, briefing, litigation, and scholarly experience to the FPC legal team.

“Recent news and presidential debates make clear that those who oppose freedom and the Constitution’s Second Amendment are gearing up to further infringe on fundamental human rights today and in the years to come, so building a unique, mission-focused team of scholars and experienced advocates is important to the future of our rights and liberties,” said FPC President Brandon Combs.

Joseph Greenlee, an attorney, researcher, and Second Amendment scholar, has joined the FPC Family’s legal programs team as its Director of Research. Mr. Greenlee, who formally joined the FPC Family two months ago in June, has already developed groundbreaking new research that has been central in three recent legal briefs filed in a federal appeals court, and other important briefs in state supreme courts and the United States Supreme Court, including one brief in support of the right to carry filed at the United States Supreme Court last week.

Matthew Larosiere, an attorney, scholar, and constitutional policy expert with a background in both firearms and taxation, has joined the FPC Family’s legal programs team as its Director of Legal Policy. Larosiere comes to FPC from the Cato Institute, where he conducted research, authored important legal briefs, and produced scholarship as a member of Cato’s Robert A. Levy Center for Constitutional Studies. He has written extensively on the subject of firearms and taxation both in print and online in outlets including National Review, Forbes, The Federalist, the Wall Street Journal, and The Truth About Guns.

Adam Kraut, an attorney, Second Amendment litigator, and educator, has joined the FPC Family as its Director of Legal Strategy. Mr. Kraut has a long track record of successfully litigating and representing clients in important firearm-related issues in both state and federal matters. In addition to his litigation background, Kraut, who once managed a licensed firearm retailer, has written for firearm-related publications including Recoil, a firearms lifestyle magazine, and writes and hosts the popular “The Legal Brief” video program.

“Each of these extraordinary attorneys has a deep commitment to individual liberty, freedom, and first principles. They are already hard at work in many areas of our key programs, including strong research, policy efforts, and legal action. Especially in light of recent demands for gun control, we look forward to their contributions and forming strategic coalitions with other liberty-promoting organizations,” concluded Combs.

As retired law professor and former NRA Board member Joe Olson commented on Facebook, “Beats a position (1 of 76) on the NRA Board.
Been there, done that, still have a flat spot on my head from bashing Marion.”