Tag Archives: firearms

4th Circuit Issues Devastating Opinion Regarding “Assault Rifles”

Today the Fourth Circuit Court of Appeals sitting En Banc issued a devastating opinion regarding “assault rifles” in Kolbe v. Hogan. The Fourth Circuit covers Maryland, West Virginia, Virginia, North Carolina and South Carolina.

4thcircuit

Kolbe challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment, as well as bringing a Fourteenth Amendment Due Process and Equal Protection claim. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).

At the District Court level, the judge ruled that the FSA was constitutional. While analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. As a result the Court employed an intermediate scrutiny analysis.

As the case trickled up the Court system, the 4th Circuit issued an opinion from a divided three judge panel which found “that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home.” More importantly, the Court became the first Court in the country to require a strict scrutiny analysis in regard to the Second Amendment claims.

Unfortunately, the Court sitting En Banc had a different idea. It was happy to affirm the District Court’s opinion, “in a large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth.” However, the Court did make an explicit statement that the District Court did not. The Court stated

[w]e conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The Court explicitly adopted that intermediate scrutiny was the correct analysis to utilize. “[I]ntermediate scrutiny is the appropriate standard because the FSA does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.”

In its analysis the Court found that “[t]he FSA bans only certain military-style weapons and detachable magazines, leaving citizens free to protect themselves with a plethora of other firearms and ammunition. Those include magazines holding ten or fewer rounds, nonautomatic and some semiautomatic long guns, and — most importantly — handguns.”

Applying the intermediate scrutiny standard the Court found “the FSA survives such review because its prohibitions against assault weapons and large-capacity magazines are — as they must be — ‘reasonably adapted to a substantial governmental interest.’” The Court stated that “Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling.”

Unfortunately, this means that yet another Court has refused to require a strict scrutiny analysis to a fundamental constitutional right. Perhaps the most troubling aspect is the Fourth Circuit believes that firearms like the AR-15 are not protected by the Second Amendment, opening the door for more restrictive legislation to be put in place and making it more difficult to challenge.

 

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Symbolism That We Can All Learn From

I was struck by an article this morning on Fox News regarding two moose who were found frozen in Alaska with their horns interlocked. The symbolism, without even reading the article, struck me. How many would would recognize the underlying moral to the story?

I frequently lecture on the use of force and that in many occasions, the best response, if possible, is to remove yourself from the situation. Yet, for some, sometimes their emotions, their “man card” and their pride preclude them from heading my advice. So, let me try through an extremely poignant picture.

Dog fight bird symbolism.jpg

What can we learn from this picture?

First, sometimes our safest and most astute response to provocation is not to fight; but rather, to walk away. Yet, some may see or comprehend this as an opportunity lost.

However, the second learning experience that we can take away from this picture is that not all opportunities are to be taken, as some opportunities are traps that may lead to our own demise.

And this leads us to the third learning experience that we, as human beings, can become so determined to harm or destroy our adversary that we become blind and end up destroying ourselves.

And let me be abundantly clear, your actions may be completely justified and supported by the law and yet, even if you survive the encounter without even a scratch, you still may destroy yourself. Few people can comprehend the impact on their psychological state after being involved in a use of force situation, even where the perpetrator was only harmed and survived. There are reasons, as Lieutenant Colonel David Grossman points out in his book On Killing: The Psychological Cost of Learning to Kill in War and Society, that our soldiers, historically, are disinclined to kill, unless we dehumanize the enemy, and that there are relatively few recorded instances in history of soldiers using bayonets against one another. I have in my profession, unfortunately, seen the aftermath of a justified use of force situation on an individual’s psychological well-being…I have also seen the aftermath of a non-justified use of force situation on an individuals psychological well-being and frankly, they do not tend to be that different. You will not be the same, at least, not for a while, although you will believe you are the same exact individual. Your family – those that you love the most – however, will see drastic changes in you. And with time, love, support and proper counseling, you can go back to being substantially similar to who you were before, but you’ll never be the exact same.

Keep this in mind if you find yourself in a situation, where you can safely remove yourself. There is far more to be proud of in deescalating a situation than the possibility of your family sitting over your grave.

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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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6th Circuit Acknowledges Second Amendment As-Applied Challenges To Mental Health Commitments

As our readers are aware, in July, I was successful in arguing in Keyes, et al. v. Lynch, et al., before the Middle District of Pennsylvania that a life long prohibition on an individual as a result of a single, isolated mental health commitment violated his Second Amendment rights, as-applied to him. Today, the 6th Circuit Court of Appeals has issued a decision in Tyler v. Hillsdale County Sheriff’s Dept., et al., acknowledging the same.

The 6th Circuit agreed with an argument that I made in Keyes that the Heller Court’s pronouncement that it was not casting doubt on the ability of the Congress to limit possession of firearms to “the mentally ill” was specific to those who are currently mentally ill, as opposed to those who might, at one time, have a bout of depression or decompression.

As the U.S. Government has now appealed Keyes to the Third Circuit, even after the Binderup/Suarez decision, we expect that the Third Circuit will rule identically to the 6th Circuit and affirm the Middle District’s decision.

If you are prohibited under federal law as a result of a mental health commitment, contact us today to discuss your options. Together, we can fight for your inalienable right to Keep and Bear Arms.

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Individuals Can Obtain Federal Firearms Relief for Non-Violent Misdemeanor Offenses!

Today, the Third Circuit Court of Appeals issued its decision in the consolidated cases of Binderup and Suarez v. Attorney General of the U.S., et al., which provides that individuals who do not “commit serious crime[s]” do not lose their Second Amendment Rights, while acknowledging that “there are no fixed criteria for determining whether crimes are serious enough to destroy Second Amendment rights” and that “the category of serious crimes changes over time as legislative judgments regarding virtue evolve.”

In reviewing Binderup’s conviction for corruption of a minor and Suarez’s carrying of firearm in Maryland without proper licensing, the Third Circuit explained

Congress tried to ensure that only serious crimes would trigger disarmament under § 922(g)(1) by exempting from the ban any state-law misdemeanant whose crime was punishable by less than two years’ imprisonment. 18 U.S.C. § 921(a)(20)(B). But we believe that accommodation still paints with too broad a brush, for a state legislature’s classification of an offense as a misdemeanor is a powerful expression of its belief that the offense is not serious enough to be disqualifying.

The court then went on to explain that while “it is possible for non-violent crimes to be serious,” one of the major considerations is whether an element of the crime includes “violence” and acknowledged that “neither Challenger’s offense had the use or attempted use of force as an element.” The court also found the actual sentence imposed to be a significant factor, in finding both to be “minor sentences.” In Binderup’s case, he received 3 years probation, while Suarez received a suspended sentence of 180 days imprisonment. In fact, the court declared:

Additionally, punishments are selected by judges who have firsthand knowledge of the facts and circumstances of the cases and who likely have the benefit of pre-sentence reports prepared by trained professionals. With not a single day of jail time, the punishments here reflect the sentencing judges’ assessment of how minor the violations were.

While the court did not decide whether Second Amendment as-applied challenges exist for felony convictions, the court did state:

We are not confronted with whether an as-applied Second Amendment challenge can succeed where the purportedly disqualifying offense is considered a felony by the authority that created the crime. On the one hand, it is possible to read Heller to leave open the possibility, however remote, of a successful as-applied challenge by someone convicted of such an offense. At the same time, even if that were so, the individual’s burden would be extraordinarily high—and perhaps even insurmountable. In any event, given that neither Challenger fits that description, we need not decide the question.

Accordingly, if you are prohibited as a result of a non-violent misdemeanor crime (or even potentially a non-violent felony crime), you have the ability to file a Second Amendment as-applied challenge in the federal district court to challenge your prohibition; however, if you read the decision, you will quickly see how intensive the analysis of any situation is and you must be able to show that historically your crime was not a “serious crime.”

Some of our viewers may remember that recently we were successful in having the Middle District of Pennsylvania find that the prohibition on possessing and purchasing firearms and ammunition in relation to a single, isolated mental health commitment was unconstitutional under a Second Amendment as-applied challenge. The Third Circuit’s decision, although not addressing mental health commitments, further supports the Middle District’s analysis and conclusion.

We at Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., are here to help you restore your Second Amendment Rights. If you want to discuss your past prohibiting offense and whether to file a federal challenge, contact us today!

 

 

 

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US Supreme Court Decision Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

On June 23, 2016, the U.S. Supreme Court decided that case of Birchfield v. North Dakota, 14-1468, in which the Court held that while implied consent laws relative to driving under the influence (DUI) may impose civil penalties, it is unconstitutional for them to impose criminal penalties for refusing to consent.

Specifically, as the Syllabus to the decision declares:

Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pg 36-37

So how does this affect your firearm rights?

Under Pennsylvania law, if an individual refuses his/her consent relative to a second (or third) DUI, the criminal grading becomes a misdemeanor of the 1st degree, which is federally prohibiting for purposes of purchasing and possessing firearms and ammunition. I previously blogged about a similar situation in Pennsylvania, when the Pennsylvania Superior Court decided Musau. Unfortunately, as a result of the Superior Court’s decision, the General Assembly amended the statute, so that anyone who refused consent on a second (or third) DUI would be penalized by a misdemeanor of the first degree, instead of an ungraded misdemeanor (which would not be prohibiting under state or federal law).

As a result of the U.S. Supreme Court’s decision in Birchfield, those individuals in Pennsylvania who have been convicted or pled guilty to a misdemeanor of the first degree as a result of a second (or third) DUI, due to their refusal to consent, have been subjected to an unlawful sentence and have a limited opportunity to file for relief under Pennsylvania’s Post-Conviction Relief Act (PCRA).

Therefore, if you or a family member were convicted of a second or third DUI, where you refused to submit to chemical testing, contact us immediately, as you have the ability to petition the court to have your conviction properly reflect the grading as an ungraded misdemeanor, which would not trigger a state or federal firearms disability.

As Federal Firearms Relief is not currently available and the Pennsylvania Board of Pardons does not with any frequency grant pardons to those who have been convicted of repeat offenses, this may be your ONLY extremely limited opportunity to obtain relief!

Contact Us Today to Discuss YOUR Rights and How We Can Restore Your Right to Keep and Bear Arms – info@princelaw.com or 888-313-0416

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If You Thought ITAR Was Bad…Firearm and Ammunition Manufacturing, Importing (and Gunsmithing) Taxes

Recently, attorney Adam Kraut with Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., blogged about the guidance recently issued by the Directorate of Defense Trade Control (DDTC) relating to its interpretation of what constitutes manufacturing under the Arms Export Control Act (AECA) and its implementing regulations, the International Trafficking in Arms Regulations (ITAR). Although I have blogged about ITAR’s applicability to the Firearms Industry for a long time, including my 2012 article that DDTC was stepping up enforcement of ITAR against the Firearms Industry and thereafter, ATF’s notice to firearm and ammunition manufacturers that they are likely required to register, the Firearms Industry has generally responded in absolute shock to DDTC’s recent guidance that AECA/ITAR regulates the Firearms Industry, even though it has since its implementation in 1976. While some of DDTC’s guidance does go beyond AECA/ITAR, such as requiring gunsmiths to register if they’re merely threading barrels, that is a battle that will need to be fought in court, if the Firearm Industry wants to challenge DDTC.

Nevertheless, there is another, potentially more encompassing law, the Firearm and Ammunition Excise Tax (FAET), which was first imposed by the Revenue Act of 1918. You can find it at 26 U.S.C. §§ 4181-4219 and the regulations at 27 C.F.R. Part 53. It is currently enforced by a separate agency, the Alcohol and Tax Trade Bureau, although referred to as TTB.

So, if you thought it was difficult enough remembering the definition of a “firearm” or what constitutes “manufacturing” under the Gun Control Act (GCA) and now AECA/ITAR, get ready, because FAET’s definition of a firearm and manufacturing is separate and distinct. While a book could be written on the intricacies of FAET, the exemptions, and the exceptions (yes, exemptions are different from the exceptions), this article is merely intended to give the Firearms Industry a heads up that they need to ensure their compliance not just with the GCA or AECA/ITAR, but also the FAET.

The FAET provides that a tax of 10% is due on the sale price for pistols/revolvers and 11% on all other firearms and shells and cartridges. Anyone manufacturing or importing any taxable product must file quarterly with the TTB on its 5300.26 Form (except, you do NOT need to submit a return for periods where no tax is due). BUT, what is a firearm? What are shells and cartridges? And what constitutes manufacturing or importing? And there are exceptions/exemptions, right?

Firearms

As I mentioned about FAET’s definition is NOT identical to the definition found in the GCA. FAET defines a firearms as:

Any portable weapons, such as rifles, carbines, machine guns, shotguns, or fowling pieces, from which a shot, bullet, or other projectile may be discharged by an explosive.

So, if the firearm is not “portable,” it is not taxable; however, pursuant to ATF Ruling 97-2, portable means the weapon can be lifted and carrier by an average person. In that ruling, ATF found that a Model 1919 was portable.

Further, for a firearm to be taxable, it must be complete. Thus, frames and receivers are not taxable; however, selling a firearm in breakdown condition (e.g. all parts present but not assembled) does not exclude it from being a taxable firearm. (Also, don’t think that you can just sell, for example, an AR-15 without a bolt and then, three weeks later, send the customer the bolt, to avoid the tax – REMEMBER, there is a difference between tax avoidance (which is lawful) and tax evasion (which is unlawful)).

Unlike under the GCA, antique firearms ARE firearms and ARE taxable under the FAET and include matchlock, flintlock and perscussion cap firearms. Moreover, unlike the GCA, silencers/suppressors are NOT included under the FAET.

Oh and for the real kicker? Pursuant to ATF Ruling 94-6, a manufacturers own use of a firearm it manufactured for purposes of a demonstration results in a taxable occurrence. Moreover, if a manufacturer lends a firearm to a evaluator for review, such constitutes a taxable occurrence.

Shells/Cartridges

Shells and cartridges is defined in the regulations as:

Any article consisting of a projectile, explosive, and contained that is designed, assembled, and ready for use in firearms, pistols or revolvers.

Like with firearms, all components of the ammunition must be present. Hence, blank ammunition with no projectile is exempt. HOWEVER, the sale of un-assembled ammunition kits (e.g. all components present), less than lethal ammunition, marker ammunition with plastic projectiles…etc are all taxable.

Like with firearms, if a manufacturer uses its own ammunition for a demonstration or its own business purposes, it must pay the applicable tax.

Who’s a Manufacturer?

Of course, we also have to define what constitutes a manufacturer, since I already told you that it was not consistent with the GCA or AECA/ITAR. Under the FAET, a manufacturer is defined as:

Any person who produces a taxable article from scrap, salvage, or junk material, or from new or raw materials by processing, manipulating, or changing the form of an article or by combining or assembling 2 or more articles.

Hence, it is not just the manufacture of a new firearm from raw materials that results in the manufacture of a firearm; but rather, it also includes the change in the form of the firearm (or ammunition). Under Revenue Ruling 69-325, it was held that the converting of military rifles into “sport-type” rifles by removing the wooden stock, cutting off the end of the barrel and installing a new front site constituted a change in form of the firearm and resulted in the manufacture of a firearm, for purposes of the FAET.

In this vein, TTB on its publication Gunsmith Information declares that merely “[c]utting off part of the barrel of a firearm is, of itself, an act of manufacture.” (see page 2 of the publication).

However, there can be a distinction between a fabricator and a manufacturer (resulting in a drastic tax liability difference), depending on who owns the materials at the time the firearm or ammunition is to be manufactured. In some occasions, the customer, if he/she provides all the materials, can actually constitute the manufacturer of the firearm/ammunition under the FAET.

Who’s an Importer?

Of course, this article wouldn’t be complete without defining an importer, since they too come under the FAET. An importer is defined as:

Any person who brings a taxable article into the U.S. from a source outside the U.S.

Generally, the FAET focuses on who arranges for the article to be imported as a principal, not the agent.

Exemptions and Exceptions?

All the exemptions and exceptions under FAET are too numerous for this article but some of the more important and applicable ones are:

  1. Purchase by specifically enumerated military departments using appropriated funds (be cautious, not all military departments are enumerated);
  2. Sales to state or local governments (including Indian Tribal Governments and the United Nations);
  3. Sales to non-profit educational organizations (see 26 U.S.C. § 170(b)(1)(A)(ii) for a definition)
  4. Firearms subject to the National Firearms Act, where the tax is paid (be cautious SOTs, as your SOT fee is not the payment of the tax for a particular firearm. Accordingly, in some occasions, it may make more sense to pay the manufacturing tax ($200.00) on the manufacture of an NFA firearm rather than pay the 11% tax);
  5. Manufacturers of less than an aggregate of 50 pistols. revolvers, or firearms during a calendar year (this does NOT apply to manufacture of shells or cartridges); and
  6. Personal use is exempted, per 27 C.F.R. 53.112(b).

The Good Aspect to FAET?

The only good thing about FAET is that all tax revenue goes into a trust fund, which can only be used for wildlife restoration and hunter safety training.

Confused?

If you’re still confused about the FAET’s application to your situation or need to submit a request for determination to the TTB, we are here to help. Give us a call at 888-313-0416 or send us an email at Info@PrinceLaw.com.

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