Category Archives: Firearms Law

The Future of ATF’s eForms System

Today, Deputy Assistant Director Marvin Richardson issued a letter to eForm users advising on the future of the eForms system. You can download a copy of the letter here.

After citing to a 380% increase in form applications since 2005 and a 1000% increase in eForm usage from 2013, Assistant Director Richardson explains that eForms is here to stay and that ATF is taking steps to immediately decrease processing times, including:

  1. Staffing 7 days a week to process forms;
  2. Hiring 15 additional staff to assist in processing NFA applications and an additional 15 staff members being cross-trained to assist in NFA application processing;
  3. Staff from across ATF is being recruited to assist in the backlog;
  4. Hiring a new computer company to assist in fixing the eForms system;
  5. Limiting routine maintenance of the eForms system to once a week (Wednesday);
  6. Turning the eForms system back online this week for processing ATF Form 6 and Form 6A applications, with Form 1, 2, 5, 9, 5300.11 and 10′s again being accepted in the weeks to come; and
  7. To weekly monitor the process being made on the backlog to ensure that it is being reduced!

Assistant Director Richardson closes the letter by stating

ATF and industry have benefitted from the eForms and ATF remains fully committed to its success and to the reduction of the backlog in paper and eForms applications. The steps outlined above reflect ATF’s commitments, and we will ensure that our industry colleagues remain informed of our progress and have the opportunity to provide input on eForms enhancements.

Looks like eForms is here to stay!

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FICG Files Letter Against Disclosure of Perry County License to Carry Firearms Applicants

On April 12, 2014, Reporter Sean Sauro reported that Perry County Sheriff Carl Nace was refusing a request by Perry County Auditor Kimberly McMullen to disclose Perry County License to Carry Firearms (LTCF) applicant information. Sheriff Nace correctly stated “They want the names of the people who have gun permits, and that’s confidential … The only ones who can get information are law enforcement under official duty.” But Auditor McMullen was not satisfied and stated “Previously, concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” In fact, she “submitted a $6,700 proposal to the commissioners to use Nauman Smith attorneys of Harrisburg to determine whether the records should be released to the auditor.”

To save the tax payers $6,700.00, FICG filed a letter in opposition to the disclosure of confidential LTCF information citing to the civil and criminal penalties for disclosure. You can download a copy of our letter here. As we discuss in our letter, each disclosure results in a $1000 statutory damage (or treble actual damages) and a criminal penalty of a misdemeanor of the first degree. Furthermore, based on Auditor McMullen’s statement that this information was previously being disclosed through Right to Know Law requests, we requested all information on previous disclosures. For those unaware, we are currently litigating a class action lawsuit against the City of Philadelphia for disclosing confidential LTCF information.

We will continue to keep our readers apprised of this situation. If you or anyone you know has had their confidential LTCF information disclosed by any person or entity, please contact us today so that we can discuss your legal options.

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FICG Files Comment in Opposition to ATF 51P

Today, Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., filed its official Comment in opposition to ATF’s newest rulemaking endeavor, ATF 51P, regarding ATF’s desire to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

Due to the proposed Rule involving mental health, few in the Firearms Industry wanted to take a stand against this new notice of proposed rulemaking. However, as FICG is dedicated to the protection of our fundamental, inalienable Right to Keep and Bear Arms, I prepared a Comment in opposition, while providing ATF with some alternatives that would further protect those, who have been committed to a mental institution, especially in the absence of due process.

While the comment period closes on Monday, April 7, 2014, at midnight, we are requesting that our readers review our Comment, which can be downloaded here, and submit Comments in support, especially in relation to 1) excluding those individuals, who where committed under the age of 18 from the purview of Section 922(g)(4); 2). excluding those individuals, who, post-commitment, served the state or federal government in a capacity where they were provided a firearm; 3). excluding those individuals, who, post-commitment, obtained Federal Explosives Relief; and 4). excluding any commitment that lack all of the due process guarantees. You can find our arguments relating to these issues and others in Section V (pg 34) of our Comment.

Regardless of whether you suffer from a mental health diagnosis, know someone who suffers from a mental health diagnosis or are just a firearms enthusiast, we all need to take this opportunity to ensure that our rights aren’t further eroded.

 

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Does a PA Bar Applicant Have to Disclose that He/She Filed For or Obtained a License to Carry Firearms?

Recently, I had the opportunity to address whether a Pennsylvania Bar applicant may lawfully and ethically refuse to disclose on the application that he/she filed for or obtained a license to carry firearms (LTCF) because of the confidentiality provisions of 18 Pa.C.S. § 6111(i).

Several weeks ago, a client and soon-to-be Bar applicant contacted me regarding the seemingly required disclosure of his LTCF information. On page 34 of the 40 page application to register to take the PA Bar exam, the applicant is asked:

Have you ever applied for a permit or license, other than one to practice law, that required proof of good character (e.g., CPA, concealed weapons permit, medical professional, teacher, stock broker, etc.)? (emphasis added)

There are then boxes for the applicant to check off either yes or no. An applicant that responds in the affirmative is then asked:

Please provide a separate entry for each permit or license application. Provide the permit or license type, the jurisdiction in which you applied for the license or permit, the disposition of your application for the permit or license, and your permit or license number (if known).

However, pursuant to 18 Pa.C.S. § 6111(i) all LTCF information is confidential:

Confidentiality. All information provided by the potential … applicant, including, but not limited to, the … applicant’s name or identity, furnished by … any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure. In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees. (emphasis added).

Upon becoming aware of this (having forgotten about having to respond to this question when I applied for the Bar exam), I agreed to draft a letter to the Pennsylvania Board of Law Examiners requesting an official determination that a Bar applicant may lawfully and ethically not respond to the question of whether he/she has applied for or obtained an LTCF as the information is confidential under Pennsylvania law. I sent the expedited request on March 23, 2014, because all Bar applications must be filed by April 15, 2014.

On April 1, 2014, the PA Board of Law Examiners graciously granted my request to expedite the formal decision by responding back that:

However, due to the  unresolved issues with respect to the confidentiality of the information concerning a concealed weapons permit, you are advised that your client in completing his July 2014 Pennsylvania bar application may answer the question dealing in part with whether he had ever applied for a concealed weapons permit in the negative (assuming that he had not applied for any of the other applicable permits or licenses) notwithstanding the fact that he had in fact applied for and was issued such a permit.

Attorney Joseph Rengert, Counsel to the Board, went on to explain that:

Your client should then indicate in response to the last question on the electronic application which requires disclosure of other relevant information, that it was his intent to not provide any response to the question dealing with concealed weapons permits due to confidentiality concerns but that since this was not an available option for him in completing the application, he answered no to the question. Given the constraints of the electronic application process which do not permit an applicant to not answer a question, the fact that your client answered no to the question about having applied for a concealed weapons permit with the accompanying explanation noted above will not be considered an untruthful response to that question on the bar application.”

A copy of the April 1, 2014 letter from the PA Board of Law Examiner can be downloaded here.

While not an ultimate decision that a Bar applicant does NOT have to respond to question 34 for future Bar applications or that the question will definitively be modified in accordance with Section 6111(i), and while acknowledging that some form of disclosure is still being required by the Board in accordance with the above directions, given the extremely short notice and willingness by the Board to timely act, my client and I are extremely appreciative of the actions and determination of the Board. We expect, based on the positive response received, that a final determination will be made by the Board, before the next Bar exam, that a Bar applicant does not need to respond to question 34 in relation to a PA LTCF.

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The Constitutional Right Against Self Incrimination Applies Even to the PA Game Commission

By Tom Beveridge

Jack Coble of Perry County believes in his constitutional rights.   In fact, he spent thousands of dollars to fight a citation he received from a Pennsylvania Game Commission officer – and he won!

On November 7, 2012, a Deputy Wildlife Conservation Officer Steven Shaffer entered Mr. Coble’s farm to investigate a tip about “jacklighting” deer on his property.   Jacklighting is an illegal method of spotlighting and shooting deer at night.   Mr. Coble was home recuperating from serious hand injury when he was questioned by the deputy.   He denied any knowledge of such activities, but left his home to drive around his 120 acre farm followed by the deputy.   When they arrived at the barn, the deputy and Mr. Coble came upon his daughter and another man with the carcass of a deer.

As reported by the Associated Press, Deputy Shaffer testified that Mr. Coble became “irate” at this point and ordered him off of his land.   Apparently, the deputy did not leave as requested, but testified that, when things “calmed down, he [Mr. Coble] admitted to being present when the deer was shot.”   Thereafter, Deputy Shaffer apparently cited Mr. Coble with a summary charge of the fourth degree (the fine totaling $150) under section 2126(a)(6) of Title 34 of the Game and Wildlife Code.   This section states that it is unlawful for any person acting under the provisions for “destruction for agricultural protection” – an assumption apparently made by the deputy – to “refuse to answer, without evasion, upon request of any representative of the [PA Game] commission, any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.”  Deputy Shaffer believed Mr. Coble was “being evasive” and, therefore, cited him under this section.

Mr. Coble hired Donald Zagurskie, Esquire, to defend him against this charge.   Attorney Zagurskie successfully argued that it is a violation of Mr. Coble’s Fifth Amendment right against self incrimination to cite him for not answering or evasively answering questions of the deputy.   In fact, this section of the Game Code effectively forced Mr. Coble to answer the deputy’s questions or be punished at the discretion of the officer.

In what this attorney calls a very commendable act, the Perry County Prosecutor handling the matter agreed with Attorney Zagurskie’s argument stating that it certainly had merit and did not contest Mr. Coble’s appeal.   Although the Prosecutor, believed to be Daniel Stern, Esquire, notified the Game Commission and Attorney General’s office of his decision not to contest the appeal, neither office initiated any actions to intervene in the matter or pursue the matter further.

So, what does this mean for Pennsylvania sportsmen?  While this section of the Game Code is very narrowly applied, it means that you should not be intimidated by Fish or Game Wardens who tell you that you must answer their questions or face a penalty.   It means that you have a Constitutional right against self incrimination and a right to consult an attorney.   I strongly suggest that anyone who is questioned by any such officers be very respectful to their authority, but never be intimidated or forced to answer questions.  Simply advise the officer that you wish to consult with your attorney before answering any further questions – regardless of the circumstances!   You should feel free to contact our office at any time – day or night – and use our emergency number to obtain legal advice, and, if necessary, legal representation to protect your rights.  Call us anytime, toll free, at 888-313-0416.  Not only are we devoted to protecting your Second Amendment rights, but ALL of YOUR Constitutional Rights!

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Gun Control Proponent Leland Yee Charged With Brokering Arms Deals for Automatic Weapons and Missiles.

We told you earlier we would bring you an update when Leland Yee’s Arrest Affidavit was released, well it was released a little while ago, and it is far more than the base corruption and bribery reported earlier. It appears that Yee was also brokering major arms deals. The San Diego Union-Tribune reported that:

The allegations against State Sen. Leland Yee were outlined in an FBI affidavit in support of a criminal complaint. The affidavit accuses Yee of conspiracy to deal firearms without a license and to illegally import firearms.

…..

Yee discussed helping the agent get weapons worth $500,000 to $2.5 million, including shoulder fired automatic weapons and missiles, and took him through the entire process of acquiring them from a Muslim separatist group in the Philippines to bringing them to the United States, according to the affidavit by FBI Special Agent Emmanuel V. Pascua.

As we said earlier, we are strong proponents of presenting primary sources to our readers: here is a link to the arrest affidavit that the San Francisco Gate is hosting. Along with Wire Fraud charges Leland Yee is being charged with violations of Title 18, United States Code, Section 371, 922(a)(1) and 922(l) (Conspiracy to Deal Firearms Without a Licence and to Illegally Import Firearms). A discussion of the evidence related to this begins on page 83. Page 84 has a passage where Lee is stated to have asked the undercover agent whether he wanted automatic weapons as opposed to semi-automatic firearms.

Here is an except from the arrest affidavit detailing that passage.

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We will continue to bring you more updates as they are released.

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U.S. Supreme Court Decides What Constitutes Domestic Violence

Today, in the matter of U.S. v. Castleman, 12–1371, the U.S. Supreme Court issued its decision relating to what constitutes a “misdemeanor crime of domestic violence.”

The brief background is that in 2001 Mr. Castleman pled guilty in Tennessee to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b). In 2008, the ATF learned that he was selling guns, allegedly on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and several other charges. His attorney then moved to have the charges dismissed because his Tennessee “conviction did not qualify as a ‘misdemeanor crime of domestic violence’ because it did not ‘ha[ve], as an element, the use . . . of physical force,’ § 921(a)(33)(A)(ii).” The District Court agreed, holding that “the ‘use of physical force’ for §922(g)(9) purposes” must entail “violent contact with the victim.” The court held that a conviction “under the relevant Tennessee statute cannot qualify as a ‘misdemeanor crime of domestic violence’ because one can cause bodily injury without ‘violent contact’—for example, by ‘deceiving [the victim] into drinking a poisoned beverage’.” A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the decision but held that its rationale was based on “the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines ‘violent felony’.”

The Supreme Court, in reversing the Trial Court and Sixth Circuit, held that it attributes “the common-law meaning of ‘force’ to §921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’ as an offense that ‘has, as an element, the use or attempted use of physical force.’ We therefore hold that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.” While this portion, in essence, makes sense given the statutory language, the Court then decides to define “physical force,” and in so doing, redefines, in the context of domestic violence, absent any Legislative intent, what constitutes physical force.

To begin the Court starts by stating, “‘Domestic violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” (Really? So if Steve pulls my hair and is convicted, since we aren’t domestic partners, he isn’t prohibited; but if Steve pulls his girlfriend’s hair, he is prohibited – yeah that sounds like Equal Protection under the law). The Court then provides an example of what all is encapsulated by physical force: “‘[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,’ such as a laser beam” and then holds that “It is impossible to cause bodily injury without applying force in the common-law sense.” (Really? See below for Justice Scalia’s take on this broad sweeping approach). The Court goes on to state that “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting” and then declares:

the Seventh Circuit noted that it was “hard to describe . . . as “violence” “a squeeze of the arm [that] causes a bruise.” Flores v. Ashcroft, 350 F. 3d 666, 670 (2003). But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a “misdemeanor crime of domestic violence.”

This is consistent with the Pennsylvania Commonwealth Court’s decision in PSP v. McPherson, 831 A.2d 800 (Cmwlth. 2002) (holding that a misdemeanor disorderly conduct guilty plea (without any hearing) can prohibit an individual pursuant to 18 U.S.C. 922(g)(9)).

It is important to note that the Court dismissed any argument under the Second Amendment, as the constitutionality of 922(g)(9), either facially or as applied to him, was not argued by Castleman.

Justice Scalia’s concurring opinion is somewhat entertaining (as always). While he agrees in the result, he raises grave concern with the Court’s new definition of physical force -

Unfortunately, the Court bypasses that narrower interpretation of §921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition cannot be squared with relevant precedent or statutory text.

In reviewing the Legislative debate and intent, Justice Scalia states:

I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of “domestic violence” that included the slightest unwanted touching.

Justice Scalia, in true Scalia-fashion, then informs us of his true feelings about the Court’s decision

That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of “domestic violence” from the period surrounding§921(a)(33)(A)(ii)’s enactment.

He then goes on to raise concern with the amicis’ definitions of domestic violence and where it may lead the Court in the future

amici’s definitions describe as “domestic violence” acts that “humiliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and controlling with whom she has contact.” Brief for National Network to End Domestic Violence et al. as Amici Curiae 5–8, and nn. 7, 11.

and

The offerings of the Department of Justice’s Office on Violence Against Women are equally capacious and (to put it mildly) unconventional.Its publications define “domestic violence” as “a pattern of abusive behavior . . . used by one partner to gain or maintain power and control over another,” including“[u]ndermining an individual’s sense of self-worth,” “name-calling,” and “damaging one’s relationship with his or her children.” See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court’s case file).

After acknowledging, as all of us do, that there is nothing more abhorrent than violence against women (and men), he declares in relation to the amici – But when they (and the Court) impose their all embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. (emphasis added)

Clearly, the issue of domestic violence is an issue that requires attention; however, the pendulum went from the absence of action to the overall encompassment of everything being domestic violence. Why is it that Steve should be permitted to pull my hair and not become a prohibited person but if he pulls his girlfriend’s hair, he will become a prohibited person? Why do I deserve a lesser status as a victim? How are the laws applying equally to Steve, his girlfriend and myself? And lastly, last time I checked, it was the Congress that enacted laws, not the Supreme Court. In this decision, the Supreme Court has sought fit to define, in broad sweeping terms, the definition of physical force, which is an act that only the Congress should be empowered to undertake. The Court has gone way beyond interpreting the Legislative intent, as Justice Scalia properly notes.

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BREAKING NEWS: Noted Gun Control and Video Game Censorship Proponent Leland Yee Arrested for Bribery and Corruption

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Image Courtesy of Senator Leland Yee’s Official Senate Website

Leland Lee is well known for his “crusade” to ban bullet buttons* and “violent video games”**, and he’s also now becoming well known for being arrested for bribery and corruption and possible ties to the triads.

ABC 7 in San Francisco reported

Sources confirm to ABC7 News that State Senator Leland Yee has been arrested on public corruption charges.

 

Yee was transported in handcuffs by authorities to the Federal Building in San Francisco.

 

A series of search warrants are being executed by the FBI across the Bay Area this morning. ABC7 News has learned they are making numerous arrests in a widespread sweep involving suspected gang members.

NBC Bay Area reporter Diane Dwyer posted this picture of Senator Yee being arrested by the FBI

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This is a breaking story and as soon as we get access to any primary sources such as copies of the warrants or any indictments, we’ll add links to them here.

*A bullet button is device which makes many modern semi-automatic sporting rifles compliant under California law, as the firearm is judged to no longer have a detachable magazine under California law. This ensures that the firearm is not subject to bans based on certain cosmetic features under California’s onerous (as shown in this CalGuns Flowchart) “Assault Weapon” laws.

**The law, AB1179 which was championed by Lee, was ruled unconstitutional as a violation of the 1st Amendment by the United States Supreme Court in 2010′s Brown v. Entertainment Merchants Association.

 

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Third Class City Code Reenacted with Firearm Protections

Like to most Pennsylvanians, it is probably a surprise to our readers that the Third Class City Code, 53 P.S. § 35101, et seq., was up for reenactment, as it was set to expire. Yesterday, March 19, 2014, Governor Corbett signed the re-codification, SB 497, into law.

Few would even take note of the re-codification but it was on our radar, as there were provisions within the Third Class City Code, which could be argued, if reenacted, to trump our right to conceal carry pursuant to a valid license to carry firearms and to trump our firearm and ammunition preemption statute that is found in 18 Pa.C.S. § 6120. Therefore, we worked with Firearm Owners Against Crime and the Legislature to ensure that our firearm preemption statute was not infringed.

Under the previous version, enacted in the 1930s, the Third Class City Code in 53 P.A. 37403 (26) provided

Regulate guns, et cetera.–To regulate, prohibit, and prevent the discharge of guns, rockets, powder, or any other dangerous instrument or combustible material within the city, and to prevent the carrying of concealed deadly weapons.

The Legislature would thereafter in 1995 enact Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. § 6101, et seq., which included provisions dealing with the concealed carrying of firearms in 18 Pa.C.S. § 6109  and firearm and ammunition preemption in 18 Pa.C.S. § 6120. Section 6120 specifically provides

(a) General rule.–No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

Our concern was that if the Third Class City Code was reenacted, there would exist arguments, under Pennsylvania’s Statutory Construction Act, 1 Pa.C.S. § 1501, et seq., that the Third Class City Code would trump Sections 6109 and 6120. Pursuant to 1 Pa.C.S. § 1936

Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.

Further, under 1 Pa.C.S. § 1933

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

Therefore, we worked with Firearm Owners Against Crime and the Legislature to ensure that the legislative intent in enacting Sections 6109 and 6120 was not encroached upon. While far from perfect (and we did attempt to strengthen the language, have the discharge portion removed and have knives excluded), we were able to have the language changed in the new Section 2423 to

Regulate Discharge of Guns and Deadly Weapons.–To the extent permitted by Federal and other State law, council may regulate, prohibit, prevent the discharge of guns and prevent the carrying of concealed deadly weapons. (emphasis added)

By including the above language, the Legislature clearly indicated that Sections 6109 and 6120 still apply and therefore, third class municipalities may not regulate the concealed carrying of firearms and ammunition. As some may be aware or remember from our litigation in Dillon v. City of Erie, the City of Erie is a City of the Third Class. The Legislature, aware of the Erie litigation, wanted to ensure that no argument existed that it could regulate, in any manner, the possession and transport of firearms and ammunition.

We greatly appreciate all the hard work of Firearms Owners Against Crime and the Legislature in ensuring that our inalienable right to keep and bear arms was not encroached upon by cities of the third class.

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Case to Watch: Drake v. Jerejian

By Allen Thompson, Esq.

UPDATE: The docket now reflects that Respondents have timely filed their response.

The Supreme Court of the United States has decided not to hear several important firearms rights cases this year, setting aside such issues as: whether a concealed carry permit-holder residing at a house creates an exigent circumstance in which police do not have to announce their presence, and whether a 10-round magazine, deemed protected by the Second Amendment, can be prohibited as a safety measure.  However, one case is still standing and the Supreme Court is still receiving briefs on the merits.

 Drake v. Jerejian, Docket No. 13-827 (which started out life as Drake v. Filko), challenges New Jersey’s impossibly restrictive carry permit requirements.  In order to gain a carry permit in New Jersey, one must first demonstrate “justifiable need.”  To many people’s surprise, one can only show “justifiable need” in one of two ways: a specific threat against the person, or a significant enough history to demonstrate that need.  In addition, one must show that carrying a firearm is the only way to prevent harm from the attack.  Once local law enforcement signs off on the permit, an applicant still needs approval from the New Jersey Superior Court.  And, as Mr. Drake found out, even if the local law enforcement authorities grant the permit, the New Jersey State Police is still likely to appeal.

John Drake, Gregory Gallaher, Lenny Salerno, and Finley Fenton, along with the Second Amendment Foundation and the Association of New Jersey Rifle and Pistol Clubs, filed suit challenging the essential ban on carrying in New Jersey.  John Drake, who operates a business restocking and servicing ATM machines, necessarily carries large amounts of cash on him and desired to carry a firearm for protection.  After initially being approved by the local law enforcement agency, the New Jersey State Police appealed and the Superior Court reversed the LEO’s approval.  The current lawsuit was then filed and the denial was eventually upheld by the Third Circuit.  Petitioners then appealed to the Supreme Court, where the case currently sits, awaiting its fate.

To date, numerous heavy hitters have entered the arena as amici, or third-parties with some interest in the outcome of the case.  The NRA, the Claremont Institute’s Center for Constitutional Jurisprudence, and the Cato Institute have all filed briefs in support of the challenge to New Jersey’s law.  Nineteen states* also filed to support the challenge, as well as the Judicial Education Project.  A single brief was filed on behalf of the following: Gun Owners Foundation, Gun Owners of America, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and the Policy Analysis Center.  Members of Congress submitted a brief, as well, urging clarification on firearms laws.

Respondents (those defending New Jersey’s law) had until March 14 to file a response.  Although nothing has been posted on the docket as of yet, it is quite possible that, because March 14 was a Friday and Monday saw inclement weather in Washington, D.C., the docket simply does not reflect the submission yet.  We will keep you posted as this case progresses.

*The following states joined Wyoming in filing the amicus brief in support of the Petitioners: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

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