Today our firm filed comments with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") on behalf of Gun Owners of America, Inc. and Gun Owners Foundation pursuant to the ATF request for comments on the use of the “sporting purposes” exemption for “certain projectiles from regulation as ‘armor piercing’ ammunition.”

These comments were filed because "GOA and GOF believe that ATF’s past interpretations of Section 921(a)(17) have been erroneous, and are contrary to the clear intent of Congress. Thus, ATF’s understanding of what constitutes AP ammunition should be revised."

The comments expound upon the following points:
ATF Would Add Its Own Language to the Statute, in an Effort to Further Restrict Armor Piercing Ammunition.
ATF Has Misinterpreted the Language of Section 921(a)(17) in an Overly-
Restrictive Manner.
Many Typical Rifle Calibers Are Capable of Defeating the Soft Body Armor,
Regardless of Whether They Are Armor Piercing.


Gun Owners of America, Inc. and Gun Owners Foundation Comments on Administrative Disposition of Weapons Amendment Act of 2012 (October 9, 2012)

Today our firm filed comments to the Council of the District of Columbia Committee on the Judiciary on behalf of Gun Owners of America, Inc. and Gun Owners Foundation on the proposed "Administrative Disposition of Weapons Amendment Act of 2012."


Raymond Woollard, et al. v. Denis Gallagher, et al., Amicus Brief for Gun Owners Foundation, et al. in the United States Court of Appeals for the Fourth Circuit (August 6, 2008)

Today our firm filed an amicus brief in the case of Raymond Woollard, et al. v. Denis Gallagher, et al. in the United States Court of Appeals for the Fourth Circuit in support of plaintiffs-appellees and affirmance.

This case involves a challenge to the constitutionality of the State of Maryland’s handgun permit statute and regulatory scheme. Maryland requires an applicant for a license to carry a handgun to demonstrate that he has “good and substantial reason” to carry a handgun. Plaintiff Woollard previously had been granted a handgun carry permit. Unable to produce evidence of a current threat, Woollard’s request for a renewal of the permit was denied. Woollard and an association of gun owners, Second Amendment Foundation, challenged the Maryland license requirement, arguing that the “good and substantial reason” requirement violates the Second Amendment right to “keep and bear arms.”

The district court found “Maryland’s requirement ... is insufficiently tailored to the State’s interest in public safety and crime prevention” and “impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment.” Our amicus brief urges the court of appeals to affirm the decision of the district court to overturn the Maryland statutory scheme but without reference to any judicial balancing or standard of review and based on the text of the Second Amendment.

Our amicus brief argues that Maryland provides no analysis of the text of the Second Amendment and misrepresents the applicability of English historical antecedents. Further, Maryland's argument rests on a misleading overview of the Supreme Court's decision in Heller. Our brief shows that the Supreme Court decisions in Heller and McDonald preclude lower courts from using judicial balancing. Heller actually requires that reviewing courts identify and apply the Second Amendment with the scope intended by the founders.

Our amicus brief was filed on behalf of:
Gun Owners Foundation (http://www.gunowners.com/)
Gun Owners of America, Inc. (www.gunowners.org)
Virginia Gun Owners Coalition (http://www.vgoc.org/)
Virginia Citizens Defense League, Inc. (http://www.vcdl.org/)
U.S. Justice Foundation (http://usjf.net/)
Conservative Legal Defense and Education Fund (www.cldef.org)


Delroy Fischer v. United States of America, Reply Brief for Petitioner in the U.S. Supreme Court (March 8, 2012)

Today our firm filed reply brief for petitioner in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence ("MCDV"), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our reply brief makes the following arguments. First, the government admits that the court below relied solely on the factual record to determine that the state statute has the use of physical force as an element. Next, the Fischer decision is not consistent with the "modified categorical approach." Further, the government would create a federal standard to determine the elements of the state statute. The government has also erroneously assumed that "physical force" as stated in the federal statute includes "subtle and indirect force," and the government erroneously shifts to Fischer the burden to prove that use of physical force is not an element of the state statute. Finally, the government has provided additional reasons to grant Fischer's petition.

On November 21, 2011 our firm filed the petition for writ of certiorari in this case.


Delroy Fischer v. United States of America, Petition for Writ of Certiorari in the U.S. Supreme Court (November 21, 2011)

Today our firm filed a petition for writ of certiorari in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence ("MCDV"), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our petition for writ of certiorari argues that the Fischer decision conflicts with the decisions of six other United States Courts of Appeals. The lower courts confused factual conduct with the legal element. Neb. Rev. Stat. Section 28-310(1)(a) is not a MCDV. Further, the Fischer decision conflicts with two decisions within the Eighth Circuit, sowing confusion among the circuits. Finally, the Fischer decision conflicts with controlling Supreme Court precedents -- United States v. Hayes and the categorical approach to predicate criminal offenses. This appendix was also filed with the petition for writ of certiorari.

The case was docketed in the U.S. Supreme Court as No. 11-662.
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-662.htm


Delroy Fischer v. United States, Appellant's Petition for Rehearing En Banc in the United States Court of Appeals for the Eighth Circuit (July 15, 2011)

Today our firm filed appellant's petition for rehearing en banc in the case of Delroy Fischer v. United States of America in the United States Court of Appeals for the Eighth Circuit.

Appellant, Delroy Fischer, was indicted under 18 U.S.C. § 922(g)(9)1 for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Our petition argues that Fischer, and Amerson before it, were wrongly decided and the Fischer panel decision conflicts with two of the Eighth Circuit’s prior opinions and with the U.S. Supreme Court’s decision in United States v. Hayes.

On August 1, 2011 the government filed brief of appellee in response to our petition for rehearing en banc. The United States Court of Appeals for the Eighth Circuit issued an order denying appellant's petition for rehearing en banc on August 29, 2011 and a mandate on September 12, 2011.


MSSA v. Holder, Amicus Brief for Gun Owners of America, Inc. et al. in the U.S. Court of Appeals for the Ninth Circuit (June 13, 2011)

Today our firm filed an amicus brief for Gun Owners of America, Inc., Gun Owners Foundation, and Virginia Citizens Defense League in the case of Montana Shooting Sports Association, et al. v. Eric H. Holder, Jr. in the U.S. Court of Appeals for the Ninth Circuit in support of reversal. We previously filed an amicus brief in the U.S. District Court for the District of Montana Missoula Division on April 12, 2010.

At issue in the case is whether Montana as a state may permit the intrastate manufacture, sale, and use of firearms without Montanans having to apply for federal firearms licenses.

Our brief argued that the federal licensure statutes are meant to “support ... state and local law enforcement” in enforcing state laws. In fact, Congress specifically prohibited courts from construing federal laws to “occupy the field” of gun control, to the exclusion of state regulation, seeking to allow states maximum flexibility to address their unique set of problems in their own way.

Rather, before striking down a state law, a court must find a “direct and positive” conflict between the state and federal laws so that they “cannot be reconciled or consistently stand together.” This was not done. Instead, the district court below addressed whether Congress had the authority to preempt state law, without addressing whether Congress had even done so.


Skoien v. U.S., Amicus Brief for Gun Owners Foundation et al. in the U.S. Supreme Court (November 15, 2010)

Today our firm filed an amicus brief on behalf of Gun Owners Foundation, Gun Owners of America, Inc., Gun Owners of California, Inc., Virginia Citizens Defense League, and Conservative Legal Defense and Education Fund in the case of Steven Skoien v. United States in the United States Supreme Court in support of petitioner Skoien.


Nordyke v. King, Amicus Brief Filed in Support of Appellants, U.S. Court of Appeals for the Ninth Circuit (August 18, 2010)

On August 18, 2010, in the U.S. Court of Appeals for the Ninth Circuit, our firm filed an amicus curiae brief filed in support of the challenge by appellants to portions of the county code of Alameda County, California. The challenged provisions ban possession of firearms on county property.

The ordinance was introduced by a county Supervisor who, in her own words, wanted to “ban gun shows.” The county claims it was responding to gun violence, but the reality is that the county was simply trying to keep peaceful gun owners from gathering to buy and sell firearms.

Our brief argues that the Second Amendment implicitly protects a private property right to acquire, possess, use and dispose of firearms. Thus, the Second Amendment protects unimpaired commerce in firearms of the kind that takes place at gun shows. California law already heavily regulates firearms, and gun shows are one of the only constitutionally-protected sources of arms.

The brief then explains the difference between “sensitive places” like courthouses and schools, compared to places like the county fairgrounds. Whereas a courthouse is not open to the public for public use, Alameda County has designated the fairgrounds to be open to the public, including for use in lawful commercial enterprise. Since the County has given everyone a right to use the fairgrounds, the County Commissioners cannot now decide that they do not like gun owners, and prohibit them from using the fairgrounds for gun shows.

Our amicus brief in Nordyke v. King, U.S. Court of Appeals for the Ninth Circuit, No. 07-15763, was filed on behalf of:
Gun Owners of California, Inc. (www.gunownersca.com)
Gun Owners of America, Inc. (www.gunowners.org)
Gun Owners Foundation (www.gunowners.com)


Heller II, Amicus Brief Filed in Support of Appellants, U.S. Court of Appeals for the District of Columbia (July 30, 2010)

On July 30, 2010, in the U.S. Court of Appeals, D.C. Circuit, our firm filed the only amicus curiae brief filed in support of the challenge by appellant Dick Heller and others to portions of the D.C. Code that (i) require registration of all firearms, (ii) prohibit registration of so-called “assault weapons” and (iii) prohibit possession of so-called “high capacity” magazines.

Our brief argues that the District Court erred when it upheld the District’s laws employing “intermediate scrutiny” – a judicially created standard of review that permits laws that are “reasonably related to an important government interest.” Our brief demonstrates that the Supreme Court has rejected such “interest balancing” standards of review in both the Heller I and McDonald cases. Instead, once a court determines that a person is part of “the people” and that the weapon is one of the “arms” protected by the Second Amendment, the amendment provides its own standard of review — “shall not be infringed.”

The brief then explained why the District has no jurisdiction to require a citizen to obtain a permit from the city to possess a firearm protected by the Second Amendment, and why the “assault weapons” and “high capacity magazines” which the District of Columbia seeks to ban are protected “arms under the Second Amendment, as provided in United States v. Miller (1939) and the Heller I decision.

Our amicus brief in Heller v. District of Columbia, U.S. Court of Appeals for the D.C. Circuit, No. 10-7036, was filed on behalf of:
Gun Owners of America, Inc.
Gun Owners Foundation
Virginia Citizens Defense League
Maryland Shall Issue, Inc.
Gun Owners of California, Inc.
Lincoln Institute for Research and Education
Conservative Legal Defense and Education Fund


Herb Titus Presents Oral Argument to U.S. District Court, Montana
in Montana Shooting Sports Association v. Holder (July 15, 2010)

A number of states have enacted firearms freedom act statutes seeking to regulate intra-state sales of firearms, over which the federal government has no authority.

The Bureau of Alcohol, Tobacco and Firearms has threatened to go after any party which manufactures or sells a firearm without complying with the federal licensing scheme. http://firearmsfreedomact.com/

The first state firearms freedom law that has gone to federal court is Montana, and, on behalf of Gun Owners of America, Inc., we were invited to be among the three counsel to argue in district court on behalf of the plaintiff Montana Shooting Sports Association ("MSSA").

The Obama administration claims that, under the commerce clause, the federal government has plenary power to regulate the licensing of the manufacture and sale of firearms to the total exclusion of the states. Herb Titus argued that Congress has actually exercised less power than claimed, keeping the door open for states to develop their own firearms policies, and therefore urged the court to resolve the matter short of addressing the constitutional questions. Additionally, we claimed the Second Amendment, itself, precludes the licensing of firearms just as the First Amendment precludes the licensing of the press.

Quentin Rhodes, Esquire of Sullivan, Tabaracci & Rhodes, P.C. represents MSSA.

Gary Marbut, President of MSSA, has been the architect of this strategy to assert the right of the states to regulate intrastate sales.


MSSA v. Holder, Amicus Brief for Gun Owners Foundation in the U.S. District Court for the District of Montana Missoula Division (April 12, 2010)

Today our firm filed an amicus brief for Gun Owners Foundation, Gun Owners of America, Inc., and Virginia Citizens Defense League in the case of Montana Shooting Sports Association, Inc., et al. v. Eric H. Holder, Jr. in the U.S. District Court for the District of Montana Missoula Division.


U.S. v. Steven M. Skoien, Amicus Brief for Gun Owners Foundation and Gun Owners of America, Inc. in the U.S. Court of Appeals for the Seventh Circuit (April 2, 2010)

Today our firm filed an amicus brief for Gun Owners Foundation and Gun Owners of America, Inc. in the case of U.S. v. Skoien, in the United States Court of Appeals for the Seventh Circuit.

This document compares quotes from the GOF amicus brief with quotes from the NRA amicus brief, which were both filed in the Skoien case -- http://www.gunowners.com/gof-vs-nra-quotes.pdf.


Otis McDonald v. City of Chicago, Amicus Brief in Support of Petitioners in the U.S. Supreme Court (November 23, 2009)

On November 23, 2009, our firm filed an amicus curiae brief in the U.S. Supreme Court in support of petitioners' challenge to an ordinance banning handguns in Chicago. The amicus brief argues that the Chicago handgun ban unconstitutionally abridges petitioners’ right to keep and bear arms, a privilege or immunity belonging to them as United States citizens protected by the Fourteenth Amendment. It also explains that no wholesale change in the Supreme Court's Fourteenth Amendment jurisprudence is required to rule that the Chicago ordinance unconstitutionally abridges petitioners’ right to keep and bear arms. Further, it asserts that incorporation of the right to keep and bear arms into the Due Process Clause would result in weak and potentially transitory protection of that right.

Our amicus brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Maryland Shall Issue, Inc., DownsizeDC.org, Conservative Legal Defense and Education Fund, The Lincoln Institute for Research and Education, U.S. Border Control, and U.S. Border Control Foundation.


David R. Olofson — Petition for Certiorari filed in U.S. Supreme Court (August 28, 2009)

On August 28, 2009, our firm filed a Petition for Certiorari with the U.S. Supreme Court, on behalf of Army Reservist David Olofson, urging the Court to grant Certiorari to review the Seventh Circuit decision affirming Olofson's conviction. The Petition was docketed on August 31, 2009. Amicus briefs are due by September 30, 2009.

Olofson was sentenced to prison for 30 months for transferring a "machine gun" — which really was a lawful-to-own, semi-automatic AR-15 rifle which occasionally manifested a "hammer-follow" malfunction, resulting in short bursts followed by jamming.

The prosecutor tried the case on the theory that a firearm's malfunction is no defense, and any weapon which fires more than one round with a single pull of the trigger is a "machinegun," under the National Firearms Act “no matter what the cause.”

This case is well known in the "black-rifle" community, and has been featured on several occasions by Lou Dobbs.
http://www.youtube.com/watch?v=rB237rfvHys — January 22, 2009.
http://www.youtube.com/watch?v=mJxbc6LOUgY — February 18, 2009.

At the heart of Olofson's Petition is the claim that his conviction was obtained and affirmed only by the adoption of a definition of "machine gun" directly contrary to the Supreme Court's definition of that term in Staples v. United States, 511 U.S. 600 (1994).

This is an important case, as it puts at risk every owner of a semi-automatic rifle, shotgun or handgun of being convicted of a felony for owning a malfunctioning weapon that "doubles" or otherwise exhibits multiple-round fire.

Gun Owners of America, Inc. and Gun Owners Foundation have funded the appellate work for this case.

The Appendix to the Petition for Certiorari appears here.

On September 30, 2009, the Montana Shooting Sports Association and the Virginia Citizens Defense League filed an amicus brief supporting our petition for certiorari. This brief explains the many ways in which conventional firearms can malfunction, resulting in multiple round fire, and the danger to gun owners everywhere of allowing Olofson's conviction to stand. This instructive amicus brief was authored by David T. Hardy and E. Stewart Rhodes.


McDonald v. City of Chicago, NRA v. City of Chicago, Amicus Brief in Support of Petitions for a Writ of Certiorari in the U.S. Supreme Court (July 6, 2009)

On July 6, 2009, our firm filed an amicus curiae brief in the U.S. Supreme Court on behalf of Gun Owners of America, Inc. and Gun Owners Foundation in support of petitioners' request for a writ of certiorari. These cases involve challenges to City of Chicago and Village of Oak Park bans on handguns. At issue is whether the Fourteenth Amendment applies the Second Amendment right to keep and bear arms against the States. The amicus brief urges that the petitions present an important question of federal law that has not been, but should be, settled by the Supreme Court. It also argues that the Chicago and Oak Park handgun bans abridge one of the privileges and immunities of citizens of the United States — the right to keep and bear arms — in violation of the Fourteenth Amendment to the U.S. Constitution.


Olofson Case Covered by World Net Daily (March 2, 2009)

World Net Daily ran a story entitled "Appeals Decision Awaited in Broken Gun Case: Man serving 30 months for loaning rifle that malfunctioned" on the Olofson case, which our firm is handling.


Olofson Case Covered on Lou Dobbs Tonight TV Show (Feburary 18, 2009)

Herb Titus was a guest on the Lou Dobbs Tonight television show today, to discuss the Olofson case, which our firm is handling. He appeared with Len Savage who had been a witness for David Olofson at trial.


Olofson Case — Oral Argument (January 22, 2009)

On January 22, 2009, Herb Titus presented oral argument before the U.S. Court of Appeals for the Seventh Circuit in support of David Olofson's appeal from having been wrongfully convicted of transfering a machinegun.  At the heart of the Olofson appeal, Titus contended, is that the Government pressed a wrongful definition of a machinegun in order to secure Olofson's conviction.  According to the government's definition, Olofson's malfunctioning semiautomatic rifle functioned as a machinegun because it fired more than one shot at the single pull of a trigger, even though it jammed before the trigger was released or the ammunition in the magazine was exhausted.  The government's position, Titus argued, is contrary to fact, contrary to law, and in conflict with Supreme Court Seventh Circuit precedent.  Indeed, according to the briefs filed by the firm, Olofson's prosecutor adopted a definition of a machinegun inconsistent with prior ATF rulings and guidelines.

Lou Dobbs covered oral argument in the case.  The CNN video can be viewed at http://gunowners.org/svtb.htm


Akins v. United States, Amicus Brief for Gun Owners Foundation and Gun Owners of America, Inc. in the U.S. Court of Appeals for the Eleventh Circuit, Another Brief Contesting ATF’s Definition of a “Machinegun” (November 26, 2008)

On November 26, 2008, the firm filed an amicus brief on behalf of Gun Owners Foundation (GOF) and Gun Owners of America (GOA) in the United States Court of Appeals for the Eleventh Circuit in support of Bill Akins.  Akins is the inventor of the Akins Accelerator — a patented replacement stock of a semiautomatic firearm that through controlled “bump firing” increases the rate of fire, after an initial trigger pull, by multiple functions of the trigger controlled by the shooter’s well-placed trigger finger.

In a 2006 ruling, the Bureau of Alcohol, Tobacco, and Firearms (ATF) concluded that Mr. Akins’ accelerator was a machinegun, because it fired repeatedly upon only one “pull” of the trigger and, thus, converted a semiautomatic rifle into an automatic one.  Prior to the 2006 ruling, however, ATF twice had notified Mr. Akins that, after testing the accelerator, ATF determined that it was not a machinegun; rather the accelerator simply enabled a semiautomatic rifle to shoot at an increased rate of fire, not with a single pull of the trigger, but by a series of multiple functions of the trigger pressing against the shooter’s well-placed trigger finger.  Thus, the accelerator did not fit within the statutory definition of a machinegun because the firearm did not shoot automatically at the “single function of the trigger.” 

In order to reach the opposite conclusion in 2006, ATF changed its interpretation of the statutory definition of a machinegun, construing “single function of the trigger” to mean the same thing as “single pull of the trigger.”  Since the ATF accelerator required only one “pull” of the trigger, in order for a semiautomatic firearm to shoot more than one shot, the ATF dismissed as irrelevant the fact that the firearm would not continue to shoot repeatedly unless the trigger continued to function by pushing against the shooter’s well-placed trigger finger.

The GOF/GOA amicus brief emphasized that the 2006 ruling was made in flagrant disregard of the plain language of the statutory definition of a machinegun — and challenged ATF’s claim that it acted within its authority to protect the “public safety” from “dangerous weapons,” noting that Congress had enacted no statutory provision prohibiting “dangerous weapons,” and that, in the Firearms Owners Protection Act of 1986, Congress had amended ATF’s powers to enact rules and regulations “only ... as are necessary to carry out the provisions of this chapter ....”


U.S. v. David R. Olofson, Reply Brief in Support of Appellant Olofson in the U.S. Court of Appeals for the Seventh Circuit (Docket No. 08-2294) (November 7, 2008)

We filed our reply brief, responding to the government’s opposition which maintained that a malfunctioning AR-15 rifle is a machinegun.


U.S. v. Hayes, Amicus Brief for Gun Owners Foundation in the U.S. Supreme Court (September 26, 2008)

On September 26, 2008, we filed on behalf of Gun Owners Foundation an amicus brief in United States v. Hayes.  The GOF brief urged the Supreme Court to affirm a Fourth Circuit court of appeals ruling that, as a matter of statutory interpretation, an individual does not lose the right to own a gun unless the prosecutor in the misdemeanor case  proves beyond a reasonable doubt that the misdemeanor event was, in fact, a domestic one.

Prior to the Fourth Circuit’s decision in Hayes, all the other courts of appeals (which had addressed the question) had decided the case the other way:  that the domestic aspect of the misdemeanor need not be proved in court, but need only appear somewhere, such as on a police report.  Thus, for a dozen years, hundreds, if not thousands, of people have been deprived of their right to purchase or possess a firearm, not on the basis of a proven fact, but on the basis of an uncontested accusation.

The statute being contested was enacted in 1996 as part of a omnibus appropriations bill – the now infamous Lautenberg Amendment, named after its sponsor, New Jersey Senator Frank Lautenberg (D-NJ).   This stealth provision prohibited, for the first time in the history of federal firearms regulation, a person from possessing a firearm if he had been convicted of a  misdemeanor, specifically a “misdemeanor crime of domestic violence.”

One of the defining differences between felonies and misdemeanors is that felons lose civil liberties (e.g., voting, serving on a jury, holding public office, gun ownership), while those who commit misdemeanors do not.  The Lautenberg amendment is a notable exception to this rule.

The GOF brief charges that, by its disregard for the language of the statute and its unjustified reliance upon Senator Lautenberg’s personal opinions, the Government unlawfully jeopardizes firearm ownership, by encouraging inaccurate and incomplete reporting of information on the National Instant Criminal Background Check System, and by creating an impermissible risk of self-incrimination on ATF Form 4473, completion of which is required of all purchasers of firearms from a federally licensed firearms dealer.


U.S. v. David R. Olofson, Brief in Support of Appellant Olofson in the U.S. Court of Appeals for the Seventh Circuit (Docket No. 08-2294) (August 25, 2008)

We filed a brief on behalf of David R. Olfoson, who was convicted and is serving a sentence for “transferring a machinegun,” which actually was a legal but malfunctioning AR-15 rifle.


U.S. v. Ramos/Compean Amicus Brief in Support of Petition for Rehearing in the U.S. Court of Appeals for the Fifth Circuit (August 18, 2008)

We filed an amicus curiae brief in the U.S. Court of Appeals for the Fifth Circuit in support of two former Border Patrol agents’ Petitions for Rehearing. This brief emphasized areas where the Fifth Circuit panel’s decision was inconsistent with the law as set forth in our earlier brief filed with the court on May 25, 2007.

Our amicus brief was filed on behalf of Congressmen Walter B. Jones (R-NC), Virgil H. Goode, Jr. (R-VA), and Ted Poe (R-TX), Gun Owners Foundation, U.S. Border Control Foundation, U.S. Border Control, and Conservative Legal Defense and Education Fund.


District of Columbia, et. al., v. Dick Anthony Heller, Amicus Brief for Gun Owners of America, Inc., et. al. in the U.S. Supreme Court (February 11, 2008)

Today, our firm filed an amicus curiae brief in the Supreme Court supporting the respondent in the D.C. gun ban case, District of Columbia, et. al., v. Dick Anthony Heller, No. 07-290. The brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Maryland Shall Issue, Inc., Virginia Citizens Defense League, Gun Owners of California, Inc., Lincoln Institute for Research and Education, and Conservative Legal Defense and Education Fund.

The issue in the case is whether three D.C. Code provisions violate a Second Amendment right to keep and bear arms for private use in one’s home. We argued that, under long-standing rules limiting its jurisdiction, the Court should not entertain the Solicitor General’s invitation to assess the constitutionality of the whole array of the current federal firearms statutes. Nor, in response to petitioners and the Solicitor General, should the Court craft a standard of review not supported by the text to permit “reasonable” gun control. Rather, the Court should apply a standard of review dictated by the words and principles embodied in the Second Amendment, as directed by America’s founders.

According to its text, context, and historic setting, the Second Amendment protects an individual right to private possession and use of handguns in one’s own home. The individual right to keep and bear arms is essential to a “well regulated militia” — a self-bodying, self-governing association of people privately trained to arms, modeled after the colonial militia that took up their privately-owned firearms to defeat a tyrannical effort to confiscate their arms. In turn, a “well regulated militia” ensures the preservation of a “free state” by allowing all members of the American polity to exercise, if necessary, the sovereign right of the “people” to reconstitute their government.

In order to ensure its purpose to preserve the people’s liberties, the Second Amendment bans discriminatory legislation against classes of persons that, by nature, are rightful members of “the people.” In order to ensure its means to defeat tyranny, the Second Amendment bans discriminatory legislation against firearms that are essential to preserve those liberties. By discriminating against law-abiding D.C. citizens and against handguns, the D.C. Code provisions violate both of these standards and, therefore, unconstitutionally infringe upon the right of the people to keep and bear arms.


State of Wyoming v. United States, Amicus Brief for Gun Owners Foundation in the U.S. Court of Appeals for the Tenth Circuit, 18 U.S.C. 822(t)(3) (August 21, 2007)

Today we filed a Brief Amicus Curiae for Gun Owners Foundation in the U.S. Court of Appeals for the Tenth Circuit in support of the State of Wyoming and Wyoming Attorney General Patrick J. Crank.  The Bureau of Alcohol Tobacco and Firearms (“BATF”) argued that Wyoming  Stat. Ann. § 7-13-1502(k), which provides for the expungement with regards to restoring firearms rights to a person convicted of the misdemeanor crime of domestic violence (“MCDV”), (a) is insufficient as an exemption from the NICS background check and (b) does not authorize the person eligible to purchase a firearm.

In a letter dated August 6, 2004, BATF advised the Wyoming AG that, after review of the Wyoming MCDV expungement statute, it had concluded that Wyoming law did not meet the federal “complete expungement” standard governing MCDV convictions, as set forth in 18 U.S.C. § 921(a)(33).  In response to BATF’s final ruling against Wyoming’s statute, Wyoming’s AG filed a complaint against BATF in U.S. District Court for the District of Wyoming as being “arbitrary and capricious, and in direct violation of federal law” and, therefore, in violation of 5 U.S.C. § 706(2)(A).  The district court ruled against the State, adopting BATF’s interpretation of the disputed firearms statutes.

Our brief argued that the district court, contrary to relevant and controlling case law precedent, erroneously upheld BATF’s ruling, because Congress has directly and unambiguously established that expungements of state criminal convictions are to be determined by state law, not by an overriding federal standard, and that BATF’s ruling violates 5 U.S.C. § 706(2)(A).


BATF Firearm Civil Forfeiture Procedures and Policies: An Attorney's Guide (July 4, 2007)

On behalf of Gun Owners Foundation, our firm authored “BATF Firearm Civil Forfeiture Procedures and Policies: An Attorney's Guide.” The guide is intended to provide a procedural overview for attorneys unfamiliar with civil forfeiture law as it applies to firearms, including what to expect from the BATF, and how to go about recovering seized assets.
This manual has been revised as of January 30, 2009.


USA v. Ignacio Ramos and Jose Alonso Compean, Amicus Brief for Congressman Walter Jones, et al., 18 U.S.C. section 924(c) (May 25, 2007)

Today we filed a Brief Amicus Curiae in the U.S. Court of Appeals for the Fifth Circuit supporting the appeal of Border Patrol Agents Ramos and Compean.  Counts four and five of the indictment charge the two with “Discharge of a Firearm in Relation to a Crime of Violence,” under 18 U.S.C. section 924(c), which the Supreme Court has ruled is only a sentencing factor, not one of the three elements — “using,” “carrying,” or “possessing” a firearm.  See Harris v. United States, 536 U.S. 545 (2002).

Thus, the amicus brief asks the court to overturn the convictions of Ramos and Compean in the U.S. District Court for the Western District of Texas, on the ground that these two Border Patrol agents were each sentenced to 10 years in prison for committing a federal crime which does not exist.

The amicus brief was filed on behalf of Congressman Walter B. Jones, Congressman Virgil H. Goode, Jr., Congressman Ted Poe, Gun Owners Foundation, U.S. Border Control, U.S. Border Control Foundation, and Conservative Legal Defense and Education Fund.


Watson v. United States, Amicus Brief in the U.S. Supreme Court, Strict Construction of Federal Criminal Laws (May 4, 2007)

On behalf of Gun Owners Foundation and the Conservative Legal Defense and Education Fund, we filed an amicus brief in the U.S. Supreme Court in the case of Watson v. United States.  This brief asks the Court to overturn the decision of the U.S. Court of Appeals for the Fifth Circuit, and to re-establish the common law rule of strict construction of criminal statutes.  In this case, an undercover agent sought to buy drugs from Watson, and offered a firearm as part of the purchase price.  The federal government indicted Watson for not only the drug sale, but also for the “use” of a firearm in connection with a federal drug trafficking crime, which would greatly increase the sentence if convicted.  Clearly, in the normal sense of the word, receiving a gun is not “using” a firearm in connection with a drug trafficking crime, but the Fifth Circuit interpreted the word “use” broadly to encompass receipt.  Had the rule of strict construction been applied to this case, and “use” interpreted in its normal sense, Mr. Watson would not be faced with a mandatory additional minimum prison sentence of five years under 18 U.S.C. section 924(c).  Our amicus brief also asks the Court to reject the modern “rule of lenity” that has proved to be no substitute for strict construction.  Strict construction of federal criminal law is necessary to preserve constitutional separation of powers, as well as principles of federalism.  Our amicus brief illustrates how allowing police and prosecutors to go beyond the words of the statute to define a crime opens up opportunities for abuse.

The firm's amicus brief in Watson v. United States was discussed by former Assistant Secretary of the U.S. Department of the Treasury Paul Craig Roberts, in his excellent book The Tyranny of Good Intentions:  How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice , published March 25, 2008, by Three Rivers Press. 


The Right of the People of Maryland to Keep and Bear Arms (February 27, 2007)

Maryland Shall Issue, Inc. commissioned our firm to prepare an analysis of a 13-year-old Opinion of the Maryland Attorney General currently being used in the Maryland General Assembly to support SB 43, the so-called "assault weapons" ban.  Our analysis -- "The Right of the People of Maryland to Keep and Bear Arms:  A Refutation of a 1994 Opinion of the Maryland Attorney General" -- was presented to the Maryland General Assembly at a hearing on February 27, 2007.  The views presented in our paper are consistent with the subsequently-issued opinion of the U.S. Court of Appeals for the District of Columbia in the case of Parker v. District of Columbia, issued March 9, 2007.


United States v. Stanko, Amicus Brief in the United States Court of Appeals for the Eighth Circuit for Gun Owners Foundation (November 2, 2006)

Mr. Rudolph Stanko was convicted of possession of a firearm and ammunition in violation of 18 U.S.C. Section 922(g)(1), which prohibits any person from possessing a firearm or ammunition if that person has been convicted of certain types of crimes punishable by imprisonment for a term exceeding one year.  According to the statutory definition, the predicate crime cannot be any federal or state offense "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."

The indictment against Mr. Stanko charged a violation of Section 922(g)(1) based upon a prior conviction of conspiracy of violating the Federal Meat Inspection Act.  Prior to trial, defendant's attorneys moved to dismiss the indictment on several grounds, including that the crime of which Mr. Stanko was convicted fell within the category of excluded business offenses.  The motion was denied, and the case was submitted to the jury without any mention of the business exclusion or any evidence that the crime of which Mr. Stanko had been convicted fit within the exclusion.

On November 2, 2006, attorneys for Gun Owners Foundation filed an amicus brief in support of Mr. Stanko's appeal to the United States Court of Appeals for the Eighth Circuit, contending:  (a) that the indictment was legally defective because it failed to allege that the predicate crime did not fit within the business exclusion; and (b) that the jury instructions were invalid because they did not submit the business exclusion issue to the jury.  Since the business exclusion is part of the statutory definition of the predicate crime, it is an element of the offense, and thus, must be alleged in the indictment and submitted to the jury.  Failure to do so deprived the defendant of his Sixth Amendment right to trial by jury.


State of Wyoming v. United States, Amicus Curiae Brief in the U.S. District Court, Against BATF and For Wyoming (August 18, 2006)

On August 18, 2006, our firm filed an amicus curiae brief for Gun Owners Foundation in the U.S. District Court for the State of Wyoming on behalf of the State of Wyoming, and the Wyoming Attorney General, Patrick J. Crank. 

The brief was submitted in opposition to a BATF ruling that a Wyoming concealed carry permit based on a Montana criminal background check is not sufficient to allow an FFL dealer to transfer a firearm without obtaining a current federal National Instant Criminal Background Check.  BATF objected to a provision in Wyoming law that permits an expungement of a misdemeanor crime of domestic violence so that it cannot be reviewed by the Wyoming Attorney General in conducting a criminal background check before issuing a concealed carry permit, while allowing the record to be maintained for use for other purposes. 

At stake in this case is the federalist principle that the states, not the federal government, have the primary responsibility to govern firearms use and ownership.


Paper Demonstrates Threat to Second Amendment Rights Posed by Recent Supreme Court Reliance on International Law (July 2006)

In July, 2006, our firm prepared a paper entitled “Assessing the Threat to Second Amendment Rights Posed by the U.S. Supreme Court's Use of Foreign Law In Constitutional Interpretation”  which was published by Gun Owners Foundation.

The paper critically analyzes two recent Supreme Court cases (Roper v. Simmons, and Lawrence v. Texas) in which the Court has relied on international law to sustain constitutional challenges.  In Roper, the Court overturned a Missouri law permitting capital punishment for 16 and 17 year olds, and in Lawrence, the Court overturned a Texas law prohibiting certain homosexual acts primarily because of foreign authorities.  Additionally, the paper reviews the pros and cons of relying on such foreign sources in other areas.  Recently, the United Nations has been pursuing a goal of eliminating all private ownership of firearms world-wide.

If the Court continues to base its constitutional decisions on foreign law, the American people may find their Second Amendment right to keep and bear arms seriously undermined because of trends in countries which have had historic hostility to private firearms ownership and because of the U.N.’s penchant to restrict firearms possession and use to government officials.


Memorandum for the President: Presidential Powers To Use the U.S. Armed Forces To Control Potential Civilian Disturbances (May 1, 1999)

This memorandum is fictional but accurately depicts the broad powers enjoyed by presidents to utilize U.S. military forces to address domestic disturbances.


Sandidge v. United States, Amicus Brief for The Center for Judicial Studies and Gun Owners Foundation in the District of Columbia Court of Appeals (1986)

We filed an amicus brief on behalf of The Center for Judicial Studies and Gun Owners Foundation in this Second Amendment case. The District of Columbia Court of Appeals decision was issued on February 11, 1987.