Author Archives: Adam Kraut, Esq.

About Adam Kraut, Esq.

Adam Kraut was born and raised in Chester County, PA. Active in scouting since kindergarten, Adam achieved the rank of Eagle Scout in 2004. After graduating high school, Adam attended SUNY Binghamton where he graduated in 2009 with a major in Political Science concentrating in politics and law. After taking a year away from academics, Adam attended Widener Law School at night while maintaining a day job and graduated in 2014. Adam is an avid firearms enthusiast, whose love for firearms began in Boy Scouts at Camp Horseshoe. Adam’s experience in the firearms industry as the general manager of a Federal Firearms Licensee, who is a Class 3 dealer, gives him a working knowledge of the challenges the industry, licensees and individuals face on a daily basis. Having worked with industry leaders, individual licensees and individuals both from behind the counter and in a legal context, Adam is in a unique position to give advice with insight others may not have. In addition to being active in the courtroom, Adam is politically active to ensure that the Second Amendment rights of future generations continue to be protected. He is the host of The Gun Collective‘s show, The Legal Brief, where he dispels the various legal myths and misinformation in the gun world. Adam is also a frequent guest on The Firearms Radio Network‘s This Week in Guns podcast. In his free time, Adam volunteers with his old Boy Scout troop, cranks out ammunition behind the reloading press, can be found at the range training, enjoys hiking through the woods and cares for his small pack of dogs. Adam lives in Chester County, PA with his girlfriend and three rescue dogs.

Federal Judge Dismisses Class Action Against Slide Fire Solutions

A Federal Judge for the District of Nevada issued an order on September 17th dismissing a class action lawsuit against Slide Fire Solutions, makers of the notorious bump-fire stock. Slide Fire had filed a motion to dismiss the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(2) (which governs personal jurisdiction) and 12(b)(6) (which covers failures to state a claim for which relief can be granted).

Now I know you are all at the edge of your seats hoping for an in depth discussion about the Court’s analysis of personal jurisdiction, but this isn’t law school and I want you to come back to the blog for future articles. If you are interested, you can read the Court’s analysis of that issue here (Pages 5-13). However, the part that most of the readers will find fascinating is the Court’s analysis of Slide Fire’s claim under 12(b)(6) which points to the Protection in Lawful Commerce of Arms Act (PLCAA) for a defense.

PLCAA was enacted by Congress upon finding that manufacturers and sellers of firearms “are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products . . . that function as designed and intended.” Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009) (quoting 15 U.S.C. § 7901(a)(5)). Simply put, the statute requires Courts to immediately dismiss “qualified civil liability actions“. The term encompasses a few different things, but for the purposes of this discussion will mean civil actions “brought by any person against a manufacturer or seller of a qualified product . . . for damages . . . or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party…” Just as a quick aside, there are exemptions to this general rule, which you can find in the definition here.

Based on the definition above, the Court was left to wrestle with whether a bump-fire stock was a “qualified product“. In order to qualify, the bump-fire stock needed to be found to be a firearm or a component part. Of course, Congress did not define the term “component part” which meant that the Court had to give it meaning. Each party gave differing interpretations, Slide Fire arguing that it was a component part based on ATF’s guidebook and ATF’s determination letter, while the Plaintiff’s argued that they were accessories because “they are added after a consumer purchases a fully functional rifle, require post-purchase installation, and are advertised as a way to “enhance” or “overhaul” a rifle in Slide Fire’s promotional catalog”.

The Court ultimately sided with Slide Fire on its interpretation that a bump-fire stock was a “component part”. The Court found, and the parties did not dispute, that a stock was a component part of a rifle.

Thus, it follows that upon installation, the bump stock is a rifle’s operative stock and, therefore, becomes an integral part of a rifle.

As such, the Court determined that the bump-fire stocks were qualified products under PLCAA and therefor protected by the statute.

The Plaintiffs also argued that one of the exemptions was applicable because of “(1) Slide Fire’s alleged false entry on its application for a federal firearms license (“FFL”); and (2) Slide Fire’s misrepresentations to the ATF about bump stocks being intended for persons with limited mobility.” The Court declined to address the first allegation because it was not included in the complaint. In relation to the second allegation, the Court determined that “if a device’s marketability to those with disabilities was not a factor in the ATF’s finding, then it follows that Plaintiffs cannot show that Slide Fire’s misrepresentation proximately caused the injuries that are the subject of this case.” Simply put, the Court did not believe the Plaintiff’s presented enough evidence to invoke the exemption to PLCAA.

The Court gave the Plaintiffs twenty-one (21) days to amend their complaint, which means that this bumpy ride might not yet be over for Slide Fire.


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ATF releases 2018 Report on Firearm Commerce in the United States (Numbers, Bar Graphs, and Pie Charts!)

ATF has released its annual Firearms Commerce in the United States Statistical Update for 2018. As my one friend put it, “Let the nerdery begin.” To be fair, you have to be pretty nerdy to enjoy this stuff, hence me writing about it.

The Annual Firearms Manufacturing and Exportation Report (AFMER) is only current through 2016. This is because AFMER data is not published until one year after the close of a calendar reporting year because the information provided by those whole filed a report is protected from immediate disclosure by the Trade Secrets Act. Which is why you see a two year lag (2016 data reporting in the beginning of 2017 and a year delay between its reporting and publication).

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In 2016, there were a total of 11,497,441 firearms manufactured. This was up from 2015’s number of 9,358,661 by about 20%. The number of exports was up from the previous year by about 9%, from 343,456 in 2015 to 376,818 in 2016.

The total number of imports fell from 5,137,771 in 2016 to 4,492,256 in 2017 (imports are not included not the AFMER report which is why the numbers are more current). Once again, the number of handguns imported accounts for over half the total number of firearms imported.

For those of you NFA junkies, in 2017, there was $6,371,000 in occupational taxes paid (SOTs). This is up again from the year prior and slightly under double that of 2012. Taxes paid were $22,972,00 for 2017, about a third of what was paid in 2016 ($62,596,000). Interestingly, there were 6,749 record checks, which means that ATF searched the National Firearms Registration and Transfer Record (NFRTR) that many times to determine if a firearm was possessed lawfully or if the transfer was performed lawfully. That number is up 202 times from 2016.

In 2017, there were 40,444 Form 1s and 184,312 Form 4s filed. These numbers were different from the year prior, but not by a significant margin for the Form 1s (Form 1s were down by about 9,000 but Form 4s were up about 51,000). The total number of forms processed by the NFA Branch was down about a million from the year prior. 2017 number look similar to that of 2014 and 2015.

As far as NFA firearms registered by state, Texas still leads with 637,612. Florida follows with 377,2017. California (thanks Hollywood), Virginia and Pennsylvania round out the top 5. Florida leads the charge with registered machine guns, sitting at 44,484. Texas has an astonishing 265,597 registered silencers. Florida is the next closest with 98,972 registered silencers.

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There are currently 55,588 licensed collectors of curios or relics, making it the most popular license type. It is followed closely by dealer in firearms, of which there are 56,638 active licenses. ATF reports 136,081 total active licenses (across the spectrum). Texas holds 10,920 of those licenses, making it the state with the most.

In 2017, 17 license applications were denied. This number is up exactly one from the year prior. As for compliance inspections, ATF performed 11,009 last year. This equates to 8.09% of all licensees in 2017 being inspected.

As always, the annual report helps give some insight as to ongoings within the firearms industry.

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PA Attorney General Reviews Reciprocity Agreements and Nixes Virginia

On Monday, PA Attorney General Josh Shapiro held a press conference wherein he “announced his office ha[d] completed an exhaustive review of concealed carry reciprocity agreements with all 49 other states, as required under Pennsylvania law.” Notably, the Attorney General’s website has been updated with a handy chart.

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The announcement specified that Pennsylvania now recognizes the licenses of 29 other states (previously it was 28). Notably, Idaho and Alabama were added to the recognized states. However, Virginia was removed. As of May 16, 2018, Virginia residents will no longer be able to carry in Pennsylvania pursuant to a Virginia Concealed Handgun Permit.

Pouring salt into an already open wound, the Attorney General has also specified that non-resident permits will no longer be recognized in PA. Which means that in order to lawfully carry a concealed firearm in Pennsylvania, according to the Attorney General, you must be a resident of the state which has issued the license and be over twenty-one years of age.

There are two manners in which Pennsylvania recognizes reciprocity. The first is found in 18 Pa.C.S. § 6106(b)(15) and allows the Attorney General to recognize, without a written agreement, another state’s license. This is predicated on the condition that the other state recognizes Pennsylvania License to Carry Firearms (“LTCF”) and that the laws governing firearms in that state are sufficiently similar to Pennsylvania’s.

The other manner is by written agreement. 18 Pa.C.S. § 6019(k)(1) provides:

The Attorney General shall have the power and duty to enter into reciprocity agreements with other states providing for the mutual recognition of a license to carry a firearm issued by the Commonwealth and a license or permit to carry a firearm issued by the other state. To carry out this duty, the Attorney General is authorized to negotiate reciprocity agreements and grant recognition of a license or permit to carry a firearm issued by another state.

Virginia and Pennsylvania had entered into a written reciprocity agreement on January 3, 2007. The agreement was amended on March 15, 2013 during the tenure of disgraced former Attorney General, now convicted felon, Kathleen Kane. Notably, the statute is silent as to the ability of the Attorney General to rescind a reciprocity agreement. However, that does not appear to have stopped Attorney General Shapiro.

Moreover, Section 6109(k)(2) requires that “[t]he Attorney General shall report to the General Assembly within 180 days of the effective date of this paragraph and annually thereafter concerning the agreements which have been consummated under this subsection.” (emphasis added). Based on the plain language of the statute, it would seem the General Assembly wished to be apprised of the states with which the Attorney General entered into written reciprocity agreements on an annual basis. Further, this would imply that if the General Assembly believed the agreement to be inappropriate, it could act to revoke its status, rather than leaving that to the discretion of the Attorney General.

Below is a list of states that Pennsylvania recognizes the permits of. You can find more information in the PDF provided by the Office of the Attorney General here.

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With PA Representative Sims Censoring Pro-Second Amendment Comments, FICG Files Letters of Objection with House Judiciary Committee Members

Earlier today, Attorney Joshua Prince and Adam Kraut sent letters to the Chairman of the Pennsylvania House of Representatives Judiciary Committee and all of its members regarding the current proceedings pertaining to gun control legislation.

They encourage you all to contact the Chairman and members of the Committee to demand further hearings with input from the citizens of the Commonwealth. For more information, see Attorney Prince’s prior blog article here.

Attorneys Prince and Kraut request all Pennsylvanians to join them on Monday April 30th at 10 AM in the rotunda of the Capitol Building in Harrisburg for the Annual Pennsylvania Right to Keep and Bear Arms Rally. Attorney Prince is scheduled to speak at the event.

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ATF Publishes Notice of Proposed Rulemaking RE: Bump-Stock-Type Devices

Today the ATF published a Notice of Proposed Rulemaking regarding Bump-Stock-Type Devices. The comment period is open for 90 days, making comments due on or before June 27, 2018.

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The proposed rule would alter the definition of a machine gun in the regulations pertaining to the National Firearms Act (27 C.F.R. § 479.1, et seq.), the Gun Control Act (27 C.F.R. § 478.1, et seq.), and the Arms Export Control Act (27 C.F.R. § 447.1, et seq.).

Currently, the definition of a machine gun (in the GCA and NFA regulations) is

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

This change would alter the definition to include the following language

For purposes of this definition, the term “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and “single function of the trigger” means a single pull of the trigger. The term “machine gun” includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

If you are interested in submitting a comment in opposition to the proposed rule, you may do so by visiting www.regulations.gov and searching the docket “ATF 2017R-22”. (Updated with link: https://www.regulations.gov/document?D=ATF-2018-0001-35714) If you wish to stay up to date on issues relating to this infringement of our rights, join the Facebook page Americans Opposed to ATF 2017R-22, where we will post updates and our submitted comments, as they become available. (Make sure to select “See First” from the Following tab to ensure that you see all of the posts)

All comments must reference the docket number ATF 2017R-22, be legible, and include the commenter’s complete first and last name and full mailing address. ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.

Firearms Policy Coalition has retained Joshua Prince and myself to draft a comment in opposition on their behalf. To learn more visit: www.defendgunparts.com and Americans Opposes to ATF 2017R-22

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Omnibus Spending Bill, H.R. 3354, Passes House and Provides Funding for Federal Firearms Relief Determinations – IN SENATE

Once again the House omnibus appropriations bill, H.R. 3354, provides funding for ATF to conduct federal firearms relief determinations under 18 U.S.C. § 925(c). Since 1992, Congress has specifically denied ATF the ability to utilize any funds they are appropriated to conduct these determinations. Further, ATF will not allow an individual to fund their own hearing, rendering a person’s options for relief at the federal level limited to Second Amendment as-applied challenges and/or presidential pardons.

 

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It is important that you contact your Senators immediately and demand they pass the bill with the funding for federal firearms relief determinations in the final language.

Who is My Senator?

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If this bill were to pass with funding reinstated for the program, thousands of individuals who are currently prohibited may be able to once again exercise their Second Amendment rights.

 

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Supreme Court Denies Certiorari in ANOTHER Second Amendment Case

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Once again the Supreme Court has denied certiorari in another Second Amendment Case. Silvester, et al. v. Becerra was an appeal from the 9th Circuit challenging California’s 10-day waiting period to firearm purchasers. In particular, the petition for certiorari raised the issue of whether the 9th Circuit “improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.” (SCOTUS Blog Case Summary).

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Justice Thomas, once again, issued a scathing dissent from the denial of certiorari.  He noted that the analysis the 9th Circuit employed was “indistinguishable from rational-basis review.” For those readers unfamiliar with the levels of scrutiny, rational-basis is the lowest standard a court employs with respect to constitutional rights.

 …it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.

Justice Thomas continues “[i]f a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Petitioners Jeff Silvester and Brandon Combs (Firearms Policy Coalition) brought suit challenging California’s 10 day waiting period under the Second Amendment, specifically that the waiting period was unconstitutional as applied to “subsequent purchasers”. The District Court entered a judgment for the Petitioners.

The District Court, after applying an intermediate scrutiny analysis, found that the waiting period was not reasonably tailored to promote an important government interest. It is at the District Court that findings of fact occur. The Court found, among other things, that twenty percent of background checks are auto-approved and took less than two hours to complete. Silvester v. Harris, 41 F. Supp. 3d 927, 964 (ED Cal. 2014). It also found that the arguments for the “cooling off period”, while novel, were inconclusive as to their effectiveness. Id at 954-955. The Court noted that the studies presented by the government, seemed “to assume that the individual does not already possess a firearm.” Id. at 966.

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California, unsurprsingly, appealed the decision to the 9th Circuit, which reversed the District Court’s judgment, upholding the 10 day wait period. The 9th Circuit, claimed to have applied intermediate scrutiny, but as Justice Thomas noted, “its analysis did not resemble anything approaching that standard.” Perhaps most egregious is that the 9th Circuit did not defer to the District Court’s findings of fact.

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. (emphasis added).

The dissent shows Justice Thomas’s frustration with the Supreme Court’s continued denial of certiorari in Second Amendment matters. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”

Time will tell if the Court opts to pick up a Second Amendment challenge in the future. Justice Gorsuch joined Justice Thomas in his dissent from the denial of certiorari in Peruta v. California, signaling that he too believes Second Amendment issues are ripe for discussion.

 

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