Firearms Policy Foundation

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Thank You, Brownells

July 21, 2021 by 1 Comment

The “Made in America” pre-Independence Day promotion at Brownells raised over $150,000 for the Firearms Policy Foundation. This money will certainly help the FPF in supporting their Second Amendment legal efforts.

In another day or time, you have to think this donation would have gone to another firearms group. You know that one where this donation would only cover about 1/10th of the Executive VP’s annual salary? Or maybe a fraction of the monthly billing from their outside counsel? Yeah, that one.

From the release:

Brownells donated more than $150,000 to the Firearms Policy Foundation, with money generated by the “Made in America” promotion at Brownells.com leading up to Independence Day.

The Firearms Policy Foundation is a 501(c)3 organization which helps fund the Firearms Policy Coalition, a 501(c)4 dedicated to defending the Constitution of the United States, especially the individual right to keep and bear arms.

The donation will help with the on-going struggle to restore and eventually expand constitutionally guaranteed Second Amendment rights for all Americans.

“I want to thank everyone who bought American to help save the 2nd Amendment,” said Brownells Chairman Pete Brownell.   “We all benefit from the great work of the Firearms Policy Coalition.”

“On behalf of the FPC team and our members, we are humbled and honored that Brownells and its amazing customers have so generously provided this significant funding for our critical pro-rights legal and education programs, including dozens of active lawsuits and new cases being prepared today,” said FPF Chairman and FPC President Brandon Combs. “Especially in this era where our rights are under attack at all levels, from the Biden administration to local governments like San Jose, California, every dollar counts and will go straight to the front lines in principled efforts to defend and expand individual liberty,”

The FPC has been involved in several recent high-profile Second Amendment court cases, including Miller v. Bonta which resulted in California’s ban on so-called “assault weapons” to be declared unconstitutional.

FPC also filed suit against Nevada’s recent ban on homebuilt firearms, and filed a brief in support of the right of all Americans to carry arms on their person in public.

To find ways to become involved in the struggle to maintain and recover 2nd Amendment rights, visit the Brownells Second Amendment Action Center.

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Brownells To Donate To Firearms Policy Foundation

June 23, 2021 by

I received a press release yesterday from Roy Hill with Brownells. It was announcing that Brownells will donate 2% of sales on American-made products from yesterday until July 4th to the Firearms Policy Foundation. You can read the full release at the end of this post. I applaud them for doing this as I think the Firearms Policy Foundation is a great organization and I have donated to them multiple times. They are the 501(c)(3) component of the Firearms Policy Coalition.

Now think about this. The Chairman of Brownells is Pete Brownell. He is a former president of the National Rifle Association and was a board member for many years. He has been rather quiet as the controversies surrounding the NRA have played out over the last couple of years. By contrast, Larry Potterfield of Midway-USA seems to have bought into Wayne LaPierre’s line that nothing is wrong and all has been put right. While I am not knocking Mr. Potterfield, I think it speaks volumes that Brownells is donating to the the Firearms Policy Foundation and not to the NRA or its foundation.

The full press release is below:

GRINNELL, Iowa (June 22, 2021) – Brownells will take a stand for freedom and declare support for the Second Amendment by donating 2% of sales on American-made products from June 22 through July 4, 2021 to the Firearms Policy Foundation.

The Firearms Policy Foundation is a 501(c)3 organization that supports the charitable legal, research, and education programs of the Firearms Policy Coalition (FPC) and FPC Law, the nation’s first and largest public interest legal team focused on the Right to Keep and Bear Arms.

“FPF and FPC have been effective partners in the defense of freedom,” said Brownells Chairman of the Board Pete Brownell. “Freedom is never free, and over these 13 days, your purchase helps defend our gun rights.”

“We are honored to have the Brownell family and Brownells team standing with us in this incredibly important and pivotal time,” said FPF Chairman and FPC President Brandon Combs. “Their generous support of our work to defend the rights of the People and expand liberty evidences their resolute commitment to the fundamental, individual right to keep and bear arms and will allow us to apply critical resources to issues that affect millions of law-abiding people.”

The FPF is a key contributor to many important pro-rights efforts, including a Second Amendment challenge to California’s ban on so-called “assault weapons” (Miller v. Bonta) that resulted in a post-trial judgment and permanent injunction against the challenged regulations, the first such victory in United States history, as well as recently filed challenges to Nevada’s new confiscatory ban on home-built firearms (Palmer v. Sisolak) and Illinois’ ban on handgun carry by law-abiding adults under the age of 21 (Meyer v. Raoul). 

To learn more about how to support the restoration and expansion of freedom, liberty and gun rights, visit the Brownells “Take Action” page.

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Gorsuch – “But waiting should not be mistaken for lack of concern. “

March 2, 2020 by 5 Comments

The Supreme Court in today’s order list has denied certiorari in Guedes et al v. BATFE. Guedes and the Firearms Policy Foundation had appealed the decision of the US Court of Appeals for the District of Columbia. That decision denied an injunction in the case.

Justice Neil Gorsuch agreed with the decision to deny certiorari in the case given it had not been fully briefed and argued on the merits. He did think the Court of Appeals made an error in relying on Chevron deference in this case because it involves a criminal penalty. He also noted that both the plaintiffs and the government had expressly argued that any decision should not rely on Chevron deference.

Gorsuch referred to the BATFE’s actions on reclassifying bump stocks as “bureaucratic pirouetting”.

Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

If I had to hazard a guess, when this or one of the sister cases involving the reinterpretation of the NFA to ban bump stocks does come before the Supreme Court fully briefed on the merits, Gorsuch will most definitely be in favor of hearing the case. Moreover, I would go further and say he would not find in favor of BATFE.

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Bumpstocks Didn’t Get Stay – What To Do Now

April 8, 2019 by 3 Comments

This past Friday the US Supreme Court denied the plaintiffs in Guedes et al v. BATFE and Codrea v. Barr a stay in the bump stock ban rule and referred the request back to the Circuit Court for the DC Circuit.

18A1019 GUEDES, DAMIEN, ET AL. V. BUREAU OF ALCOHOL, ET AL.


The application for stay, presented to The Chief Justice
and by him referred to the Court, is denied.


Applicants request that if we deny this application we
grant a limited stay of 120 hours to allow them to come into
compliance with the Final Rule. We refer the issue of such a
stay to the D.C. Circuit for its consideration.


Justice Thomas and Justice Gorsuch would grant the
application.

So where does this leave the case now?

The Firearms Policy Foundation released a statement by email along with the response of the Circuit Court on Sunday evening. If you do have a bump stock and are a member of one of the organizations such as Florida Carry or the Firearms Policy Foundation, you have until 5pm, Wednesday, April 10, 2019 to legally turn it in.

From FPF:

On Friday, the Supreme Court denied our legal team’s request
for a stay (i.e., postponement) of the ATF’s Final
Rule re-classifying “bump-stock-type” devices as illegal
machineguns while we continue to litigate the various claims we raised
in our lawsuit and in the other consolidated cases. The D.C. Circuit
subsequently ordered the following:

PER CURIAM ORDER [1781463] filed that,
based on the government’s representation that it will not enforce the
Bump-Stock Rule against the named plaintiffs or their bona fide
members before 5:00 p.m. on Wednesday, April 10, 2019, the emergency
joint motion to extend stay order [1781365-2] be denied and the
administrative stay entered on March 23, 2019, and clarified on March
25, 2019, be dissolved. The Clerk is directed to issue the mandate
forthwith. Before Judges: Henderson, Srinivasan and Millett. [19-5042,
19-5044]



The Government (DOJ/ATF) has agreed to allow the individual
plaintiffs in Guedes, et al. v. BATFE, et al. and the
organizational plaintiffs’ – i.e., Firearms Policy Foundation, Florida
Carry, Inc., and Madison Society Foundation, Inc. — bona fide members
(as well as the individuals in the consolidated Codrea, et
al. action) to come into compliance with the new Final Rule by
5p.m. on Wednesday, April 10, 2019. The Government also represented
that it “will also retain the bump stocks” that are provided to them
in compliance efforts until our legal action is completely
concluded.


Friday’s Supreme Court decision to deny the stay we requested was
disappointing but not entirely unexpected. But importantly, there is
much litigation left before the cases are disposed of. Our team is
currently working on a petition for en banc rehearing by the
full D.C. Circuit. And we are prepared, if need be, to petition the
U.S. Supreme Court for a writ of certiorari (review).


We maintain that the Government’s new rule is unconstitutional and
unlawful. And we will continue to aggressively litigate this case and
work to defend American gun owners from this unlawful ban mandated
by President Donald Trump. Updates will continue to be posted to our
BumpstockCase.com
case webpage.


In an abundance of caution, we wanted to make you aware of how the
Final Rule could affect owners of affected devices. As set forth in
the Final
Rule, 83 Fed.Reg. 66530, and according
to the ATF, a bump-stock-type device owner’s options are:


1) Destroy the bump-stock device according to the ATF’s published
“Bump
Stock Destruction Instructions”; or,


2) Surrender it/them to the “nearest” ATF office. (ATF advises that
it is best to make an appointment beforehand with the nearest ATF
office.) You can find your local ATF field office and their phone
number at https://www.atf.gov/contact/local-atf-offices.


Non-compliance with the ATF’s Final Rule (i.e., continued
possession of a bump-stock-type device) could lead to serious criminal
liability. Individuals (or a company/organization) who
maintain possession of an affected device can be prosecuted for
unlawful possession of a putative machinegun, where he/she/they can be
imprisoned for up to 10 years and fined up to $250,000 (or more in
some cases) per violation.


Chief Counsel Joshua Prince of Firearms Industry Consulting Group,
a division of Civil Rights Defense Firm, P.C., who is representing
Firearms Policy Foundation and numerous other plaintiffs in
Guedes, et al. v. BATFE, et al., has suggested that
individuals who wish to comply with the ATF’s Final Rule by
surrendering their device to the ATF do so under protest.


As you may be aware, both ATF’s
website relating to bump-stock devices and the Final
Rule, 83 Fed.Reg. 66530, declare that “current possessors also
have the option to abandon bump-stock-type devices at the nearest ATF
office.” In spite of that, however, some reports
(and our own experience) suggest that not all ATF local offices are
accepting bump-stock devices. Thus, you should call the local ATF
office before you travel there to confirm that they are, indeed,
accepting affected devices.


If they are accepting such devices, then make them aware that you
intend to visit their office to surrender your bump-stock device(s)
under protest and inquire as to whether they have any specific
procedures for your entry into the building.


Before you go, you will want to take pictures of your bump-stock
device(s), in case there is ever a question as to the condition, make,
and model of it/them. And you should also consider preparing a letter,
such as the Sample Letter provided below, to advise the ATF that you
are providing them your bump-stock device(s) under protest.


When you go, provide the ATF agent handling your matter with a copy
of the letter and demand that they provide you with a property receipt
that reflects their receipt of your bump-stock device(s) and specifies
the make and model of the device(s). Be aware that they may attempt to
have you sign an ATF 3400.1 Form – Consent to Forfeiture or
Destruction of Property and Waiver of Notice – which you
should NOT sign under ANY circumstance. In the event that
they ask you to sign an ATF 3400.1, inform them that the
only ATF form you are willing to sign is an
ATF 3400.23 – Receipt of Property and Other Items. If they argue at
all with you, politely tell them to review the internal memo that ATF
circulated regarding the right of individuals to surrender
bump-stock-type devices under protest and those individual’s right to
refuse to sign an ATF 3400.1 form.


It would also be prudent to separately document your experience of
the encounter in writing – such as the date and time of your visit,
the location of the ATF office you went to, the names or other
identifying information (ID #, etc.) of all ATF agents or persons you
spoke with, the details of all discussions, and any other information
they told or provided you – and keep it in a safe place.


You can also let our team know if the ATF in any way refuses or
rejects your attempt to comply with the Final Rule. You can submit a
report of your issue to hotline@fpchq.org and/or contact
your attorney for specific legal advice.


In the event that ATF elects to institute a forfeiture action
against your property, they are required to serve you with a copy. If
that happens, you should immediately contact an attorney, preferably
one who specializes in federal firearms law, if you wish to challenge
ATF’s ability to forfeit your property. Again, you can submit a report
of your issue to hotline@fpchq.org, but always
contact your attorney for specific legal advice.


Again, we will continue to aggressively litigate this case and work
to defend American gun owners from this unlawful and unconstitutional
ban.


If you are able, please help support this important lawsuit and our
fight for your rights by making a tax-deductible donation at FightATF.com.

NOTE: This message and its contents are intended to provide
general information only. It is not intended to provide legal advice.
You should always contact your attorney if you want or need specific
legal advice. 

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Chief Justice Roberts Refuses To Issue Stay

March 26, 2019 by 1 Comment

The Firearms Policy Coalition and the Firearms Policy Foundation released this statement by Twitter concerning the refusal of Chief Justice John Roberts to issue an emergency stay of the bump stock ban rule.

Updates on the case will continue to be posted at www.bumpstockcase.com.

It should be remembered that the key issue is not really bump stocks. The key issue is whether or not any government agency can reinterpret the black letter law to outlaw something or some action that they had expressly said was legal earlier.

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Bumpstock Ban, Part III (Updated)

December 27, 2018 by 1 Comment

Attorneys Joshua Prince and Adam Kraut have filed suit today in US District Court for the District of Columbia today on behalf of Damien Guedes, the Firearms Policy Coalition, the Firearms Policy Foundation, and the Madison Foundation. The lawsuit seeks an injunction as well as challenges the legal authority of Acting Attorney General Matthew Whitaker to issue such a rule when he has not been confirmed by the Senate.

From the plaintiffs release:

WASHINGTON, D.C. (December 18, 2018) — Today, attorneys for an owner of a “bump-stock” device and three constitutional rights advocacy organizations filed a federal lawsuit against the Trump Administration’s new confiscatory ban on firearm parts, additionally challenging Matthew Whitaker’s legal authority to serve as Acting Attorney General and issue rules without being nominated to the role and confirmed by the Senate or by operation of law. A copy of the court filings can be viewed at www.bumpstockcase.com.

The plaintiffs also filed a motion seeking a temporary injunction to prevent the Trump Administration from implementing and enforcing the new regulation. The lawsuit, captioned as Guedes, et al. v. BATFE, et al., is backed by Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.

“Bump-stocks” were legal under federal law and prior determinations of the Bureau of Alcohol, Tobacco, Firearms and Explosives until the agency issued a new final rulemaking today. Under the new rule, owners of the devices have just 90 days to surrender or destroy their property, after which they could face federal ‘machinegun’ charges that carry up to 10 years in prison and $250,000 in fines for each violation.

The plaintiffs are represented by attorneys Joshua Prince and Adam Kraut of Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C. Prince and Kraut previously filed a nearly 1,000-page formal opposition to the proposed regulation, which included a video exhibit showing the actual operation of a “bump-stock” device on an AR-15 type firearm. That opposition and its 35 exhibits can be viewed at www.bit.ly/fpc-bumpstock-reg-opposition.

“The ATF has misled the public about bump-stock devices,” Prince said. “Worse, they are actively attempting to make felons out of people who relied on their legal opinions to lawfully acquire and possess devices the government unilaterally, unconstitutionally, and improperly decided to reclassify as ‘machineguns’. We are optimistic that the court will act swiftly to protect the rights and property of Americans who own these devices, and once the matter has been fully briefed and considered by the court, that the regulation will be struck down permanently.”

In a January statement, Firearms Policy Coalition said that the federal “DOJ and BATFE clearly lack the statutory authority to re-define the targeted devices as ‘machineguns.’” Following that, in February, FPC also commented that as they “opposed the lawless manner in which President Obama often ruled by ‘pen-and-a-phone’ executive fiat,” they objected to and would fight “President Trump’s outrageous lawlessness here.”

“In its rulemaking, the Trump Administration is attempting to abuse the system, ignore the statutes passed by the Congress, and thumb its nose at the Constitution without regard to the liberty and property rights of Americans. That is unacceptable and dangerous,” explained Adam Kraut, an attorney for the plaintiffs. “It is beyond comprehension that the government would seek establish a precedent that it can arbitrarily redefine terms and subject thousands of people to serious criminal liability and the loss of property.”

Anyone who owns a “bump-stock” device and who would like to consider participating in the case should contact the FPC/FPF Legal Action Hotline at https://www.firearmspolicy.org/hotline or (855) 252-4510 (available 24/7/365) as soon as possible.

Count One of the lawsuit refers to Whitaker  as “purported Acting Attorney General” and challenges his authority to issue the final rule. They refer to 28 U.S.C. § 508(a) which states that the Deputy Attorney General shall exercise the duties of the office of Attorney General in case of a vacancy. Given this, they argue that Whitaker cannot “lawfully perform the duties and
responsibilities of Attorney General, including the execution on December 18, 2018 and
implementation of the Final Rule.” I think even the Democrats might agree with this.

Count Two of the lawsuit alleges violations of the Adminstrative Procedures Act. Specifically, it accuses BATFE of a) failing to provide records as requested with regard to Proposed Rule; b) failure to provide a 90-day comment period as there were website issues; c) failed to consider cost impact and ignored any analysis on compensating bumpstock owners for a taking; d) failed to provide a hearing when requested; and e) issued a rule that is arbitrary and capricious which is a violation of the APA.

Count Three alleges that the final rule exceeds the legal authority of BATFE because it rewrites clear statutory terms to suit itself. Even Sen. Dianne Feinstein herself has said that BATFE lacks the clear legal authority to ban bumpstocks. Now, of course, she wants Congress to do it but that would be legal.

Count Four says the final rule violates the Internal Revenue Code. Since NFA items are taxed, this is why this comes into play.

26 U.S.C. § 7805(b) provides that “no temporary, proposed, or final regulation relating to
the internal revenue laws shall apply to any taxable period ending before … [¶ … ¶] [t]he
date on which any notice substantially describing the expected contents of any temporary,
proposed, or final regulation is issued to the public.”

Thus, any rule against any bump fire stock manufactured before March 29, 2018 could not be enforced on them.

Count Five goes to the fact that the Final Rule bans bump fire stocks and says no compensation need be given. This the suit alleges violates the Takings Clause of the Fifth Amendment.

Count Six alleges an Ex Post Facto violation as bump fire stocks were previously classified by the BATFE to be legal. Changing the law after the fact would seem to violate Article I, Section 9, Clause 3 of the U.S Constitution.

Count Seven alleges that the Final Rule violates the Contract Clause of Article 1 of the Constitution by destroying the value of investments that had been made consistent with previous BATFE rulings and classifications of bump fire stocks.

Count Eight is the final count. It accuses BATFE of violation of the Freedom of Information Act for failing to provide records that were properly requested by the Firearms Policy Foundation months ago.

The prayer for relief seeks both a preliminary and permanent injunction against the enforcement of the Final Rule, a declaration that Matthew Whitaker did not have the legal authority to issue the Final Rule which makes it null and void, and for declarations that the aforementioned violations are Constitutionally impermissible.

The full 37-page complaint is here.

UPDATE:  The Guedes case had some changes today. First, the Firearms Policy Coalition dropped out of the lawsuit in order to file a separate lawsuit on procedural grounds. More on that lawsuit in a separate post but the intent is to have one lawsuit argued on the merits of the case – Guedes – and a second lawsuit challenging the Final Rule on the grounds it was issued by someone who didn’t have the authority to do so.

Second, in their amended complaint, the plaintiffs added Missouri St. Representative Shane Roden (R-Franklin County) and Florida Carry. Moreover, it dropped Count One (see above) which challenges the authority of the purported Acting Attorney General Matthew Whitaker to issue the rule. That will now be moved to a separate case involving only the Firearms Policy Coalition.

The goal in separating the issues is to have one case that will move quickly on procedural issues – FPC v. Whitaker – and a second case that move at the speed that it moves on the merits of the case. The challenge on procedural issues is an effort to stay the case in the short term.

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Linton V. Becerra – Another Second Amendment Lawsuit Against California

December 23, 2018 by 4 Comments

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.

On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.

When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.

Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.

Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.

However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
above.

In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.

I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.

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Sharp V. Becerra – Assault Weapon Registration Lawsuit – Moved To Federal Court

September 25, 2018 by 4 Comments

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In late August, California Attorney General Xavier Becerra (D-CA)  moved to have the lawsuit against him and the California DOJ over their ineptness implementing the new registration of bullet button weapons moved to Federal court. One would have thought that he’d want to keep a suit against the California Department of Justice in state court.
The case was moved to US District Court for the Eastern District of California and assigned to Judge Morrison England, Jr. 
Today, the plaintiffs which include a number of individuals and a number of civil rights organizations filed an amended complaint. Joining the plaintiffs is the Madison Society Foundation.  The amended complaint also adds a Section 183 claim for deprivation of due process rights.

While I might have been tempted to just say “screw it”, all the individual plaintiffs spent hours trying to comply with the law requiring registration of their firearms. Some of the plaintiffs are IT professionals and tech savvy. Nonetheless, the database system was so screwed up, most of them were not able to do so. The response of Cal DOJ was “you procrastinated, so tough”. From the complaint:

The following Monday, July 2, 2018,
Plaintiff (Terry) Jahraus contacted the DOJ for assistance, but the DOJ official told him, essentially, “it
was [his] responsibility to comply with the law [and] that he had all year to do so.” In other
words, DOJ blamed him for failing to register, even though its own statutorily-mandated
registration system was inaccessible and defective throughout the entire period he had attempted
to register it well before the deadline.

The joint release of the Second Amendment Foundation, Calguns Foundation, Firearms Policy Coalition, Firearms Policy Foundation, and the Madison Society Foundation is below:

SACRAMENTO, CA (September 24, 2018) — Attorneys for seven California gun owners and five advocacy organizations announced a new court filing in a now-federal constitutional rights lawsuit over the State of California’s “assault weapon” registration debacle. The case, Sharp, et al. v. Attorney General Xavier Becerra, et al., was originally filed in the County of Shasta Superior Court. But in late August it was removed to federal district court in Sacramento at the request of Attorney General Xavier Becerra and the DOJ defendants. The new court filing is online at https://www.firearmspolicy.org/sharp.

On August 24, the California Attorney General moved the case to federal court on the basis that the plaintiffs’ claims present a federal constitutional question, in addition to their state-based claims. That same day, the lawsuit was assigned to District Court Judge Morrison C. England, Jr. Two years ago, Judge England issued a bench ruling to enjoin a California statute that criminalized the use of Assembly video footage in political advertisements in a case brought by Firearms Policy Coalition and its Proposition 63 ballot initiative political committee, FPC Second Amendment Defense Committee.

“While it’s interesting that Attorney General Becerra doesn’t want his own state’s courts to hear how badly he mis-administered the mandated firearm registration program, we welcome the opportunity to show Judge England how the DOJ violated the constitutional rights of the plaintiffs and others like them,” said George M. Lee, lead counsel for the plaintiffs. “General Becerra’s actions and failures affected many gun owners from San Diego to Eureka. These law-abiding gun owners tried to register their weapons as required by law but could not do so because DOJ’s registration system was wholly inadequate to do the job. We are simply asking that those injuries be reasonably remedied so that those citizens are not subject to criminal liability for possessing illegal, unregistered weapons – solely as a result of DOJ’s failures.”

In the latest complaint, submitted last Friday, the plaintiffs added a claim for deprivation of their due process rights under Title 42, Section 1983 of the United States Code. The complaint also adds as an institutional plaintiff the Madison Society Foundation, a nonprofit organization that fights to protect the right to keep and bear arms.

The plaintiffs say that Becerra and the DOJ had a legal and constitutional duty to provide a functional registration system during the registration period, but that they were unable to exercise their own rights and legal duties “due to the Defendants’ actions and failures, including but not limited to the inaccessibility, defects, and/or non-functionality of the DOJ’s CFARS-based registration system.” The plaintiffs alleged that the DOJ’s ‘botched’ “assault weapon” registration scheme – including the error-prone Internet application for registration that often crashed completely – violated both the U.S. Constitution and California Constitution’s guarantees of due process. They also allege that the failed DOJ system violated the plaintiffs’ and other similar gun owners’ statutory rights.

“Even though the lawsuit is now in a federal district court, it’s still just a straight-forward case about how Attorney General Becerra and his DOJ didn’t do the job they were mandated to do,” explained Firearms Policy Coalition President Brandon Combs. “Their actions and failures violated the rights of thousands of California gun owners. It’s just that simple.”

Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and potentially subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.

The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”

“This unjust California government-created problem must be stopped immediately,” Second Amendment Foundation Founder and Executive Vice President, Alan Gottlieb, said in a previous statement. “Gun owners should not be put at risk due to state regulatory incompetence.”

The plaintiffs said that they would soon be asking Judge England for a preliminary injunction to protect affected gun owners’ rights and property while the case goes forward to summary judgement or trial.

The plaintiffs are represented by attorneys George M. Lee and Douglas Applegate of San Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor. Attorneys Bradley Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group, who earlier this month secured a major First Amendment victory in a case that challenged a different California gun control statute that banned truthful, non-misleading speech about handguns, have been added to the legal team.

The lawsuit is backed by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to, or who suffered a privacy breach at DOJ, should contact the organizations’ Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.

Uncategorized

“You Can’t Stop The Signal, Mal”

August 1, 2018 by 2 Comments

As I noted earlier this evening, Judge Robert Lasnik issued a temporary restraining order preventing Defense Distributed, the Second Amendment Foundation, and Conn Williamson from posting code files for 3-D printing and CNC machining of certain firearms. However, once the genie is out of the bottle, it’s out. Or in this case, once the code “escaped” to the Internet, it’s out and there is not a damn thing the gun control lobby, the gun prohibitionists, ideologue state attorney generals, or Constitution-ignoring judges can do about it.

Tonight, a new website was established by a coalition of civil and firearms rights groups has been set up and it has a number of files pertaining to 3-D printing and CNC machining on it. The site is called CodeIsFreeSpeech.com. I would encourage everyone to go to that website and download each and every file on it. You may never use the file nor even have a desire to engage in making your own firearm. Nonetheless, the more copies of each and every one of these files that out in the ether of the Internet, the less likely any attempt to stop it will be successful. Think of them as Freedom Files.

The coalition of groups behind this new website issued this release announcing the website – which by the way is up and running – and their intent behind doing so. None of these groups were parties to any of the lawsuits concerning the files of Defense Distributed.



SACRAMENTO, CA (July 31, 2018) — Tonight, the organizations and individuals behind CodeIsFreeSpeech.com,
a new Web site for the publication and sharing of firearm-related
speech, including machine code, have issued the following statement:
Our
Constitution’s First Amendment secures the right of all people to
engage in truthful speech, including by sharing information contained in
books, paintings, and files. Indeed, freedom of speech is a bedrock
principle of our United States and a cornerstone of our democratic
Republic. Through CodeIsFreeSpeech.com,
we intend to encourage people to consider new and different aspects of
our nation’s marketplace of ideas – even if some government officials
disagree with our views or dislike our content – because information is
code, code is free speech, and free speech is freedom.
Should
any tyrants wish to chill or infringe the rights of the People, we
would welcome the opportunity to defend freedom whenever, wherever, and
however necessary. Hand-waving and hyperbole are not compelling
government interests and censorship is not proper tailoring under the
law.
There
is no doubt that Cody Wilson and Defense Distributed have inspired
countless Americans to exercise their fundamental, individual rights,
including through home gunsmithing. Through CodeIsFreeSpeech.com,
we hope to promote the collection and dissemination of truthful,
non-misleading speech, new and evolving ideas, and the advancement of
the Second Amendment right to keep and bear arms.
CodeIsFreeSpeech.com
is a publicly-available Web site for truthful, non-misleading speech
and information that is protected under the United States Constitution.
The purpose of this project is to allow people to share knowledge and
empower them to exercise their fundamental, individual rights. CodeIsFreeSpeech.com
is a project of Firearms Policy Coalition, Firearms Policy Foundation,
The Calguns Foundation, California Association of Federal Firearms
Licensees, and a number of individuals who are passionate about the
Constitution and individual liberties.
Firearms Policy Coalition (www.firearmspolicy.org)
is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to
defend the Constitution of the United States, especially the
fundamental, individual Second Amendment right to keep and bear arms,
through advocacy, legal action, education, and outreach.
Firearms Policy Foundation (www.firearmsfoundation.org)
is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to
defend the Constitution of the United States and the People’s rights,
privileges and immunities deeply rooted in this Nation’s history and
tradition, especially the inalienable, fundamental, and individual right
to keep and bear arms.
The Calguns Foundation (www.calgunsfoundation.org)
is a 501(c)3 non-profit organization that serves its members,
supporters, and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related civil rights.
California Association of Federal Firearms Licensees (www.calffl.org)
is a 501(c)6 nonprofit organization serving its members and the public
through direct and grassroots issue advocacy, regulatory input, legal
efforts, and education. CAL-FFL’s membership includes firearm dealers,
training professionals, shooting ranges, licensed collectors, others who
participate in the firearms ecosystem.
Uncategorized

California Sued By Coalition Of Gun Rights Groups Over AWB Registration Disasters

July 12, 2018 by 2 Comments

The Second Amendment Foundation, the Calguns Foundation, the Firearms Policy Coalition, and the Firearms Policy Foundation have come together to sue the California Department of Justice, Attorney General Xavier Becerra, and the head of the California Bureau of Firearms. Their complaint, filed in Shasta County Superior Court, is a constitutional challenge to the bullet button registration system and a writ of mandamus requiring the state to allow people to register as required under state law. That last bit might sound confusing but people had until July 1st to register their bullet buttons. The only problem is that many people were not able to do so because the system crashed. It’s a damned if you do and damned if you don’t situation.

From their joint release:

The lawsuit argues that DOJ’s “bullet-button assault weapon” registration system was defective, often “crashing” completely, and the various failures prevented many gun owners from complying with the laws—potentially turning people into felons overnight.

SACRAMENTO, CA (July 11, 2018) — Today, attorneys for three gun owners and four civil rights organizations filed a new lawsuit and petition for writ of mandate that claims California Attorney General Xavier Becerra and his Department of Justice (DOJ) violated their civil rights protected under the state and federal constitutions. A copy of the complaint can be viewed or downloaded at https://www.firearmspolicy.org/sharp.

The lawsuit, captioned Harry Sharp, et al. v. California Attorney General Xavier Becerra, et al., is supported by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF). Named as defendants are California Attorney General Xavier Becerra, Acting Chief of the DOJ Bureau of Firearms, Brent E. Orick, and the California Department of Justice itself. The plaintiffs are represented in the case by attorneys George M. Lee and Douglas Applegate, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor.

“Many people, including our clients, did everything they could to comply with the law and avoid criminal liability,” commented Lee. “They used updated web browsers, hardware, different devices, and even did internet speed tests to make sure it wasn’t a problem on their end. The DOJ’s crashed system is a reflection of their cascading failures to build a system and allow people to register their guns before July 1 if that’s what they wanted to do.”

The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”

Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and possibly subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.

“Attorney General Xavier Becerra seems to care about everything but the constitution, the rule of law, and law-abiding California gun owners,” said FPC President Brandon Combs. “If Becerra spent as much time doing his job as he does talking about his pet crusades against the federal government, hundreds of thousands of Californians would not be in legal jeopardy right now.”

“We’re suing because California DOJ’s Firearms Application Reporting System (CFARS) broke down during the deadline week for people to register their firearms in accordance with new state laws,” said SAF founder and Executive Vice President Alan M. Gottlieb. “For a whole week the system was largely inaccessible, so people who wanted to comply with the law simply couldn’t and now they face becoming criminals because they couldn’t do what the law requires.”

“Predictably the state of California wants to take guns away from the law abiding. In this instance they couldn’t even build a working system to respect gun owners’ rights,” explained CGF Chairman Gene Hoffman. “We simply want to allow those who want to comply with the law to have more time with a working registration system.”

“It’s like a bad version of ‘Catch-22’,” Gottlieb observed. “The government required registration by the deadline, but the online registration failed and people couldn’t register. They’re required to obey the law, but the system broke down, making it impossible to obey the law. Now these people face the possibility of being prosecuted. We simply cannot abide that kind of incompetence.”

“Once again, the DOJ and Attorney General Becerra unlawfully and unconstitutionally moved the goal posts on peaceful, law-abiding gun owners,” observed FPF Vice President Jonathan Jensen. “Their failures should not result in people going to prison and losing their property.”

Combs noted that the case is not an endorsement of firearm registration, which carries its own risks, as many news reports have shown.

“Gun owners had a right to decide how they would approach these serious legal issues,” explained Combs. “Attorney General Becerra and his DOJ denied gun owners the opportunity to exercise their rights and make an informed choice, forcing them into the sights of fascist, hyper-aggressive special agents who kick in doors and put gun owners in jail. That’s completely unacceptable and totally deplorable.”

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to should contact the Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.