Tag Archives: firearms

Breaking News: ATF To Issue Two Monumental Determinations

Today, at the NSSF/FAIR Trade Group’s 16th Annual Firearms Import/Export Conference, during the roundtable discussions, the Firearms and Ammunition Technology Division (FATD) stated that it is working on two monumental determinations regarding modular silencers and vertical/angled foregrips.

First, in relation to vertical/angled foregrips, it was disclosed that FATD has received numerous requests for determination. These requests vary greatly in form and substance and resulted in Branch Chief Curtis stating that some form of determination would be issued to the Firearms Industry; hopefully in the coming weeks. He even mentioned that at this point, the degree of the angled foregrip would have to be addressed in the determination, after review of all past determinations, including ones issued by his predecessors and ones which may be in conflict.

Second, in relation to modular silencers, FATD acknowledged that it currently has pending before it a request for determination of legality from a modular silencer manufacture. Division Chief Griffith and Branch Chief Curtis raised concern over the determination request and the issues that must be addressed, including whether modular silencer are legal, when reduced in size. In essence, the concern stems from there arguably existing additional silencer parts that are not part of the modular silencer’s configuration, when it is reduced in length. In the event that ATF would rule that modular silencers are generally lawful, it raises a plethora of other issues, including where the markings must be placed (which is interrelated to ATF’s currently pending rulemaking: ATF-29P) or whether such silencers would require either specific location markings or multiple markings.

This means that if you are a silencer manufacturer, who manufactures modular silencers, there is still time to submit legal arguments to FATD as to the general legality of modular silencers. If you wish to submit legal arguments, contact Firearms Industry Consulting Group (FICG) today to discuss your options.

Although ATF was reluctant to state whether these determinations would be in the form of “policy determinations,” “guidance” or “formal rulings,”  and stated that it could not provide an exact timeframe for these determinations, it was stated that they are overdue and should be expected in the very near future.

Stay tuned for a blog article from Attorney Adam Kraut on other news and revelations from the 16th Annual Firearms Import/Export Conference!


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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2018 Appropriations Bill Still Doesn’t Provide Funding For Federal Firearms Relief Determinations – Contact Your U.S. Representatives!

As our viewers are aware, although 18 U.S.C. § 925(c) provides for federal firearm relief determinations, since 1992, the ATF’s appropriation bill – which has been enacted each year thereafter – has provided a restriction on ATF’s use of any of the appropriate money for federal firearms relief determinations. As I reported in 2015, an amendment to the 2016 appropriations bill – H.R. 2578 – was passed, which provided for funding of federal firearm relief determinations. Thereafter, the bill, as amended, was passed by the entire House of Representatives. Unfortunately, due to the late nature of the House passing the bill, when it was received by the Senate, the Senate gutted all the language and replaced it with the language from an appropriations bill that it was working on in the interim. The Senate’s version was later passed by the House, including the provision precluding ATF’s usage of the appropriated money for federal firearms relief determinations.

The House is now working on an appropriations bill for 2018 and although it has been reported to include pro-Second Amendment provisions (which it does and are discussed below), the one provision which has not been modified, is the restriction on the appropriated money being used for federal firearms relief determination. Specifically, it provides that

Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code

Accordingly, I am respectfully requesting that you contact your U.S Representatives and demand that the language in the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill be amended to remove the restriction on ATF utilizing the appropriated money for federal firearms relief determinations. In the alternative, if your Representatives push back regarding the cost, then I would respectfully suggest that the language be modified to:

Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code; however, nothing shall preclude an individual from funding his/her own application for relief from Federal firearms disabilities under section 925(c); whereby, the cost to the individual shall not exceed $1,000.00

As this strikes a balance between allowing federal firearms relief determinations to be made and the cost being born by the prohibited person, it is hard to fathom what objection anyone would have to this language.

In relation to the pro-Second Amendment provisions included in the current version of the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill,  it would:

  1. Ban the use of funds for the program launched under the Obama administration to require federally licensed firearm dealers in Southwestern Border States to report certain rifle sales to the U.S. government;
  2. Permanently defund any form of unmonitored “gun walking” operations involved in U.S. Border Patrol Agent Brian Terry’s death;
  3. Effectively block the implementation of the U.N. Arms Trade Treaty;
  4. Permanently block any attempt by anti-gun groups within the ATF to implement a highly restrictive framework on the importability of shotguns (i.e. any shotgun that was importable before the release of ATF’s 2011 shotgun importability study could not be reclassified as “non-sporting” and therefore banned from importation); and,
  5. Promote the importation of collectible “curio and relic” firearms and facilitate export of certain firearm parts valued at $500 or less to persons in Canada.

Accordingly, please join us in supporting the Fiscal Year 2018 Commerce, Justice, Science (CJS) Appropriations Bill, while demanding that the language restricting federal firearms relief determinations be removed.

 

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SCOTUS Properly Denied Cert in Peruta v. California

While it may come as a shock to many of our viewers, I am firmly of the position that the U.S. Supreme Court properly denied certiorari in Peruta v. California, given the significant rumors of Justice Kennedy’s impending retirement this summer – the result of which will trigger the biggest battle over the confirmation of a new justice that our Country has ever seen.

But what does that have to do with Peruta?

Well, if you remember, both D.C. v. Heller and McDonald v. Chicago were 5-4 votes, which included Justice Kennedy in the majority; however, his exact position on the Second Amendment is not known, as he joined the majority opinion in U.S. v. Castleman, which, as Justice Scalia wrote, results in everything constituting domestic violence. Accordingly, even absent his retirement, he may not be a vote that we can count on in support of the Second Amendment.

Furthermore, since Heller and McDonald, we unfortunately lost the legal giant Justice Scalia. While Justice Gorsuch has now taken former Justice Scalia’s place on the Court, assuming he votes consistent with former Justice Scalia’s opinion of the Second Amendment (which seems extremely likely given the Dissent to the Denial of Certiorari to Peruta for which he joined), in the absence of Justice Kennedy, the 9th Circuit’s decision, upholding the draconian law, would likely be affirmed, since a 4-4 vote results in affirmation of the lower court’s ruling. While Tom Goldstein of SCOTUSBlog has found precedent in such situations for re-argument once another Justice is confirmed, he has likewise found identical precedent where re-argument was not provided. Hence, we cannot count on re-argument being granted in a 4-4 tie situation.

While a tie vote affirmation is not precedential on lower courts, it would likely empower even more lower courts to ignore the dictates of the Second Amendment and Heller, McDonald, and Massachusetts v. Caetano, since the lower courts have seemingly thumbed their nose at the Court’s binding precedent. Specifically, in Heller, the Court declared that the definition of “bear arms” was to

wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of . . . being armed and ready for offensive or defensive action in a case of conflict with another person.

Yet, lower courts have consistently upheld bans on carrying firearms in one’s pocket and permitted states to require an individual to obtain a license to carry a firearm concealed on his/her person.

Furthermore, in both Heller and McDonald the Court declared that the Second Amendment should not be analyzed in an interest-balancing approach.  Specifically, in Heller the Court declared

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.

Likewise, in McDonald, the Court declared that the Heller Court “specifically rejected” “an interest-balancing test”. Yet, almost every federal court that has analyzed the Second Amendment has analyzed it under an interest balancing approach, generally only applying intermediate scrutiny.

For these reasons, until Justice Kennedy retires and is replaced by a jurist that recognizes the Second Amendment is an inalienable right, it is best for SCOTUS to continue denying certiorari in cases involving the Second Amendment.

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Senate Passes SB 383 With Anti-Gun Provisions

Today, on third consideration, the Pennsylvania Senate passed SB 383 with the anti-gun amendments, which I previously wrote about earlier today.

It is now imperative that you contact you State Representative and demand that they vote against SB 383 or completely amend it to address the issues that I have previously written about and remove the anti-gun provisions.

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Anti-Gun Amendments Added to Senate Bill 383 Permitting Teachers to Carry Firearms in Pennsylvania

Although Senator White’s Office – the Prime Sponsor of SB 383 – stated on Monday that there was no longer an ability to amend SB 383 in relation to the issues I previously raised, yesterday, Philadelphia Democratic Senator Sharif Street added several anti-gun and anti-right amendments to SB 383, as initially reported by PennLive, which passed, 49-1. You can find a current version of SB 383 with the amendments here and a listing of all the Senators that voted for it here.

The amendment, inter alia, requires disclosure of all school personnel permitted access to local law enforcement and disclosure to parents that there are school personnel who are permitted access to firearms; thereby, once again, violating the confidentiality of 18 Pa.C.S. §§ 6111(g)(3.1) and (i) and failing to address the maintaining, access and disclosing of that information held by the police department.

Moreover, it requires any school personnel wishing to be authorized to carry a firearm to undergo a psychological examination and seemingly provide such to the school district in violation of HIPAA and for which, as I explained previously, there exists no safeguards on the maintaining, access and disclosing of those reports. This would also  constitute a violation of Article 2, Section 1 of the Pennsylvania Constitution, as it constitutes an impermissible delegation of authority to a psychologist to determine fitness.

For all of the above reasons, I am asking you to contact your State Senator and tell him/her to oppose SB 383.

 

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Absent Additional Amendments, Oppose Senate Bill 383 Permitting Teachers To Carry Firearms In Pennsylvania

As our viewers are aware, I previously blogged about some of the issues with SB 383 in relation to permitting Pennsylvania teachers to carry firearms in schools. While some minor amendments have been offered in relation to it, there are still a plethora of issues, which preclude me from supporting it, even though I am highly in favor of arming our teachers. Since SB 383 will be up for a vote this week and some are attempting to preclude Senators from being fully aware of the issues with the Bill, I am setting forth all the issues with the bill below and asking that you please contact your Senator and demand that the Bill either be amended to address the below issues or that they vote nay on the Bill.

First, it requires the school official to have a license to carry firearms (“LTCF”). Why is this of concern? Well, SB 383 fails to consider that LTCF applicant information is confidential and not subject to disclosure; whereby, the disclosure of such information is a felony of the 3rd degree and permits civil penalties. Specifically, 18 Pa.C.S. § 6111(g)(3.1) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree.

Section 6111(i) then provides, in pertinent part:

Confidentiality.  All information provided by the … 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.

Second, the original bill did nothing to address the confidentiality of this information and how a school district is to protect the disclosure of this information. How is a school official to prove compliance with the provision requiring a license to carry? Will he/she be required to provide a copy of his/her LTCF? If so, to whom? Who will have access to that photocopy? Clearly, not all school personnel should have access to this and in fact, those who should have access should be an EXTREMELY shall group. Will there be logs maintained of who accesses the information? What training about the confidentiality of this information is to be provided to those who are authorized to have access? What logs will be maintained of the training provided to them and certifications by the school official that he/she received the training and that he/she shall keep the information confidential, pursuant to 18 Pa.C.S. 6111(g)(3.1) and (i)? Who will have access to those logs and certifications? What is to happen where a school official discloses information in violation of 18 Pa.C.S. 6111(g)(3.1) and (i)? Shouldn’t that person be immediately removed from having access to that information?

There are other tangential issues that aren’t addressed in the Bill. What about revocation of the school employee’s privilege to carry pursuant to this Bill, if some issue arises with the employee? Obviously, any such action must comport with due process protections. What about where the school employee’s license to carry is revoked or renewal denied or it just expires? How frequently will checks be done to see if the school official is still in compliance with the requirements of the bill? And these are only some of the concerns…

Based on the concern I raised, an amendment to the Bill modified this issue slightly, but still misses the mark and reflects the lack of comprehension of the issues involved. Amended SB 383 merely provides that the information regarding specific school personnel permitted access to firearms in a school “may not be disclosed during a meeting open to the public.” Well great, now what about access to the information at all other times, ensuring that it remains confidential and all the other issues raised above?

Third, and as I addressed as previously being the most concerning is the fact that without the confidentiality of this information being addressed in SB 383, one wonders whether such information will be disclosed to the public, including through Right To Know Law (“RTKL”) requests. Specifically, under the original bill, an individual intent on harming our children, including a potential terrorist or terrorist group, could seemingly learn, in advance, whether a school district has any armed personnel. If so, the criminal/terrorist is likely to target those school personnel first. If, on the other hand, a RTKL request comes back stating that there are no relevant records, such would highlight that there are no armed personnel and that the school is an extremely soft target.

Again, based on the concern I raised, amended SB 383 now specifically provides that none of the information is subject to the RTKL.

I also question why an LTCF is the determining criteria instead of the person being Act 235 certified. It would seem to be far more logical to me to remove the LTCF requirement and replace it with an Act 235 requirement.

While some are astonished that I would take this position, I think it is important to point out that teacher can ALREADY carry on school grounds, based on the Superior Court’s en banc decision in Commonwealth v. Goslin and even prior to it, I am aware of several school districts that petitioned several different courts of common pleas for orders approving individual teachers to possess firearms on school grounds.

For all of the above reasons, I am asking you to contact your State Senator and tell him/her to either demand amendments to SB 383 that address the above or that vote nay on the Bill.

 

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Press Release: Attorney Joshua Prince To Be Admitted To Practice In Maryland

We are extremely proud to announce that Joshua Prince, Esq. has received notice from the Maryland State Board of Law Examiners that he passed the Maryland Out-of-State Attorneys’ Bar Exam that was administered in February, 2017. While he must take an orientation program, it is anticipated that he will be licensed to practice in Maryland within the next month.

Joshua looks forward to taking his Firm – the Civil Rights Defense Firm, P.C., including its division, Firearms Industry Consulting Group® (FICG®) – and his dedication to defending our inalienable right to keep and bear arms to Maryland and establishing beneficial precedent in Maryland, as he has done here in Pennsylvania.

Please join us in congratulating him on this monumental achievement.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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