Category Archives: ATF

U.S. Government to Withdraw Appeal in Second Amendment As-Applied Challenge Relating to a Mental Health Commitment

As our viewers are aware, I was previously successful in establishing a right to relief in a Second Amendment as-applied challenge involving a mental health commitment – Monumental Decision from the Middle District of Pennsylvania Regarding Mental Health Commitments and the Second Amendment. Thereafter, the U.S. Government filed an appeal to the Third Circuit Court, where the case is currently pending briefing.

Today, the U.S. Government filed a notice with the Third Circuit that the Acting Solicitor General has elected not to sustain the appeal and the Government will be seeking to withdraw the matter in 30 days, as the Government must provide the U.S. Congress with 30 days notice, for the U.S. Congress to intervene if it sees fit. A copy of the letter sent to Speaker Paul Ryan can be downloaded here.

Accordingly, it appears that in 30 days, the appeal will be withdrawn and the only remaining issue will be the attorney fees and costs to be assessed against the Government.

If you have been denied your inalienable right to Keep and Bear Arms as the result of a mental health commitment or non-violent misdemeanor offense, contact us today to discuss your options. Together, we can vindicate YOUR rights!

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Can You Lend a Firearm to Another Person under Federal Law?

From time to time, individuals inquire as to whether they can lend a firearm to a friend. While state firearms laws vary on this subject (for instance, in Pennsylvania an individual can lend shotguns and rifles but not handguns, unless the person receiving the handgun has a license to carry firearm), Federal law specifically allows one to lend a firearm to another individual, provided the individual is not prohibited.

Pursuant to 18 USC 922(a)(5), it is unlawful for “for any person…to transfer, sell, trade, give, transport, or deliver any firearm to any person…who the transferor knows or has reasonable cause to believe does not reside in…the State in which the transferor resides; except that this paragraph shall not apply to…(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;”

Does Federal Law allow you to lend a firearm to someone?

Does Federal Law allow you to lend a firearm to someone?

However, pursuant to 18 USC 922(d),

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance…; (4) has been adjudicated as a mental defective or has been committed to any mental institution; (5) who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa…(6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child…(9) has been convicted in any court of a misdemeanor crime of domestic violence.

So, what does all of this mean? Under Federal law, an individual may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he/she does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law.

So when do you have reasonable cause to believe a person is prohibited? That is always going to depend on the circumstances. For instance, if someone tells you that he/she has been previously denied the purchase of a firearm, you would have reasonable cause to believe the individual is prohibited. If, on the other hand, the person has never made any such statements (and I highly recommend that prior to lending any firearm, you have the individual sign a statement that he/she is not prohibited under state or federal law from possessing a firearm or ammunition) and you haven’t heard “rumors” of him/her having a criminal past or involuntary civil mental health commitments, then you can likely lend your firearm to that individual.

The grey arises when he/she states that he/she is not prohibited but you have heard “rumors” of his/her criminal past or psychological issues. In this scenario, I always advise a client against lending the firearm, as it is not clear whether you have reasonable cause to believe the individual is prohibited. Clearly, it is not worth the next several years of your life fighting the Government over and the loss of your home to pay the legal bills.

Even if you have no reason to believe the individual is prohibited, you still must determine whether your state permits the lending or renting of firearms. To make this determination, you should consult an attorney that is licensed in your state and familiar with your state’s firearms laws. Once you are satisfied that the individual is not prohibited and your state’s laws allow for the lending of the type of firearm that you intend to lend, you can actually lend your firearm to your friend.

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As an FFL, Can You Sell an NFA Firearm Through the Mail?

Often times, Federal Firearms Licensees (FFLs) inquire as to whether they can sell a National Firearms Act (NFA) firearm through the mail, without the buyer needing to be present. To the surprise of most FFLs, you actually can sell NFA firearms through the mail, provided the purchaser is not otherwise prohibited and is a resident in the same state as the FFL.

27 C.F.R. § 478.96 states that where the firearm is being provided to resident of the same state as the FFL and who is not prohibited, the FFL may sell a firearm that is not subject to the provisions of 27 C.F.R. § 478.102(a) to a non-licensee who does not appear in person. Section 478.102(a) requires a National Instant Check System (NICS) background check on most transactions; however, there is an exception, pursuant to subsection (d)(2), if  “The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479.” Thus, Section 478.96 would apply and allow the FFL to transfer the firearm to the purchaser, who is a resident of the same state, without the purchaser having to be present.

However, pursuant to Section 478.96, the FFL has certain additional requirements to perform this type of transaction. Specifically, the purchaser must provide to the FFL an executed Form 4473, as provided for by 27 C.F.R. § 478.124, and attach “a true copy of any permit or other information required pursuant to any statute of the State and published ordinance applicable to the locality in which he resides.”

Furthermore, the FFL MUST “prior to shipment or delivery of the firearm, forward by registered or certified mail (return receipt requested) a copy of the record, Form 4473, to the chief law enforcement officer named on such record, and delay shipment or delivery of the firearm for a period of at least 7 days following receipt by the licensee of the return receipt evidencing delivery of the copy of the record to such chief law enforcement officer, or the return of the copy of the record to him due to the refusal of such chief law enforcement officer to accept same in accordance with U.S. Postal Service regulations.”

Lastly, the original Form 4473, and evidence of receipt or rejection of delivery of the copy of the Form 4473 sent to the chief law enforcement officer must be retained by the licensee as a part of his/her/its required records. After completing this step, the FFL can now send the NFA firearm to the purchaser, provided that there are no separate state law requirements. Some states, such as Pennsylvania, require additional state forms to be completed, depending on the type of NFA firearm (e.g. if it constitutes a “firearm” under Pennsylvania law, then a Record/Application of Sale form would have to be completed).

Accordingly, while an NFA transfer can occur without the instate purchaser being present, there are additional obligations placed upon the FFL and the purchaser may not be happy with the additional information being provided to his/her CLEO. Thus, it is a best practice for an FFL to only conduct in-person transfers, unless you are familiar with the requirements and have put in place procedural safeguards to ensure that none of the additional requirements are overlooked.

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A Proposal to Limit the Regulatory State

Readers of this blog are well aware of the extent to which individual liberties are constrained not only by laws passed by Congress but also by federal administrative agencies (like ATF but also including EPA, and any number of other examples).  For most of last week I was in Washington, D.C., attending a conference, where over lunch one day I learned of a new proposal to empower Congress to limit runaway agency rules.

For the past few years a bill has been pending to enact the REINS Act, which would require that major rules be enacted by Congress itself, treating the output of a federal agency’s notice-and-comment rulemaking effort as the equivalent of a bill for the consideration of Congress.  That legislative proposal has not moved forward due, in part, to the lack of a filibuster-proof majority in the Senate as well as the certainty of a veto from President Obama (who often took unilateral action as the head of the bureaucracy).  Had the REINS Act been law, presumably measures like ATF-41P would have died from the lack of affirmative congressional approval.

I learned last week of a proposal that would go a step beyond the proposed REINS Act.  The Madison Coalition and its energetic Director, Roman Buhler, are generating pressure for a constitutional amendment that would permit 25% of the membership of either house of Congress to object to federal agency rulemaking, requiring that Congress then affirmatively act on the agency’s proposal before it would go into effect.  The Reguatory Freedom Amendment already has generated significant support and it certainly worthy of public consideration.  I welcome readers to visit the Madison Coalition to learn more about the proposal.

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ATF Announces New Form 4473 – Firearms Transaction Record

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The National Shooting Sports Foundation is reporting that on Monday, November 14, 2016, ATF announced that the new 4437 would be required on ALL firearms transactions beginning on January 16, 2017. As you may remember, I previously blogged about ATF soliciting comments on the proposed 4473 and then filed a Comment in Opposition to ATF’s Proposed Changes to the Form 4473. ATF responded to my comment in which it admitted to violating its own regulations but seemingly did not care.

It does seem that ATF took into consideration some of the comments FICG had filed in drafting the new form. One of the biggest problems I took issue with was the certification statement that the transferor (person transferring the firearm) had to sign.

Specifically, the individual signing the form is currently certifying that based upon

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The issue, as I previously blogged about, is that the ATF Publication “State Laws and Published Ordinances” has not been updated since January of 2011, in violation of ATF’s own regulations. See 27 CFR § 478.24.

ATF in the updated version of the form has changed the language to read that based upon

“…State or local law applicable to the firearms business — it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the rearm(s) listed on this form to the person identified in Section A.”

Essentially, ATF changed the language so that the individual signing the form would not be responsible for referring to the guide that ATF is required to publish by its own regulations but rather be responsible for knowing the applicable state and local laws on their own.

Equally of interest is the new language found over question 11e. In case there was any confusion from licensees or individuals attempting to purchase firearms who utilize medical marijuana, there can be no more confusion. If an individual is a user of medical marijuana, they may not answer no to question 11e.

Marijuana leaf on a white background

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

ATF did fail to take into consideration an important suggestion that FICG had made. There is no box on the form to indicate the firearm is being transferred to a legal entity. Rather than having licensees use a form, which the licensee has to make on their own, ATF could have simply added a spot on the form to indicate the firearm was being transferred to a legal entity. ATF stated that we were free to submit that suggestion again in the future, which is a comical response, because the reason they said they could not include it was that the form had already been drafted when the suggestion was made. It appears this ideal will turn into a Catch 22.

All in all, from my experience behind the gun shop counter, the revisions to the form (at least the part the transferee or purchaser will be responsible for completing) appear to make it a bit easier for individuals to follow and complete. While ATF could have done a better job listening to some of the suggestions which would have been helpful to licensees, it appears this version of the form is better than the last.

 

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VA Actively Depriving Veterans of Second Amendment Rights

Today, I met with a client who was denied by FBI / PSP because of, as stated on the denial, “Veterans Affairs Administration.”

Although I’ve vociferously spoken out against the VA being able to strip individuals’ Second Amendment rights, in all honesty, until today, I had not seen a case where a veteran had actually been denied in the absence of an actual involuntary mental health commitment or formal adjudication of incompetence. Today, that all changed.

While past stories discuss denying a veteran, where the veteran elected to have a third-party handle his/her financial affairs (and of course, I have to question how someone who is deemed to be “incompetent” can execute a form competently…but I digress), my client’s denial is far more egregious – as if, I ever thought I could see such a situation.

In my client’s situation, he handles all of his own finances. The VA does not dispute this. Rather, when I finally got a representative from the VA on the line, she informed us that the VA, on its own initiative, placed him into “supervised direct payment status”. When I inquired as to what “supervised direct payment status” was, the representative stated that it is where the veteran handles his/her own financial affairs but they “watch the veteran’s financial accounts.” While the VA contended that they sent out a letter about this status being imposed on my client, my client never received such a letter and they acknowledged that it does not mention anything about the loss of the veteran’s Second Amendment rights, but that the VA has been imposing such since 2013.

No due process is provided. The representative acknowledged that my client never received a hearing and that the determination that my client was incompetent was made solely by a VA official reviewing his case. She stated that he could have appealed the determination when he received the original letter, but the time has since past to appeal. Remember, this is the letter that my client never received and which makes no mention of the loss of one’s Second Amendment rights…

While they have reluctantly agreed to send my client copies of the putative letter that they allegedly previously sent, they refused to provide his entire file, even at my request. This is the new Veteran Affairs Administration, folks. We now treat our illegal immigrants with more respect and benefits than our own veterans. This is an absolute disgrace and the VA’s policies and procedures need to be immediately reversed. Of course, we’re all aware that such is unlikely if former Secretary Clinton is elected…

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Press Release: Second Mental Health As-Applied Challenge Success

We are extremely proud to announce that Chief Counsel Joshua Prince was successful in a second Second Amendment as-applied challenge in relation to a prior mental health commitment.

As our viewers are likely aware from Attorney Prince’s blog article Monumental Decision from the Middle District Court of Pennsylvania Regarding Mental Health Commitments and the Second Amendment, approximately three months ago, Attorney Prince was successful in obtaining relief for Mr. Yox, who had previously been involuntarily committed as a juvenile but later went on to honorably serve in our Armed Forces and later as a state correctional officer. Under federal law, Mr. Yox was permitted to possess a firearm and ammunition in his official capacity as a law enforcement officer, but was precluded from possessing a firearm and ammunition in his private capacity. In fact, in providing relief to Mr. Yox, the court declared:

Indeed, Mr. Yox provides the perfect test case to challenge § 922(g)(4), as the illogical contradiction of being able to possess firearms in his professional capacities but not being able to possess a firearm for protection in his own home puts in relief a factual scenario where an as-applied Second Amendment challenge to this statute may succeed.

Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

Unfortunately, the court had previously dismissed his co-plaintiff’s (Mr. Keyes’) identical arguments on the basis that the Pennsylvania Superior Court had already considered his Second Amendment challenge and found against him in In re Keyes. After rendering its decision on Plaintiff Yox’s claims, Mr. Keyes filed a request for the court to reconsider its prior ruling and arguing that it would be a manifest injustice if the court were deny him relief based on the faulty decision of the Pennsylvania Superior Court.

Yesterday, Judge John E. Jones, III. overturned his prior holding finding that Mr. Keyes’ Second Amendment as-applied claim was barred and declared that Mr. Keyes “is in a materially identical situation” to Mr. Yox and that denying Keyes, while granting relief to Mr. Yox, would seem to constitute an “inequitable administration of the law” and “manifest injustice.”Judge Jones specifically declared in finding that the Pennsylvania Superior Court incorrectly analyzed his prior Second Amendment challenge:

The result is that Keyes is left behind while his co-Plaintiff receives full relief simply because Keyes pursued his Second Amendment claims in what turned out to be the wrong court. He is left with no recourse to receive vindication of his constitutional right to bear arms, even though this Court has, for all material purposes, made clear that his claim has full merit. This is a grossly unfair and inequitable result.

Judge Jones went on to state that “[w]e would be hard pressed to think of a better example of an inequitable administration of the laws, and it is a circumstance that cries out to be rectified.”

Please join us in congratulating Attorney Prince for this monumental victory, as well as, Judge Jones for ensuring that for every wrong committed, the court has the power to correct it. It is extremely refreshing to see a judge who is willing to reconsider his or her own prior holdings and decisions to ensure that justice prevails.

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