Tag Archives: Second Amendment

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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Our Veterans Need Our Help To Ensure Their Second Amendment Rights! It Is Time For Us To Repay Our Debt To Them!

Today, the U.S. House of Representatives voted 240-175, with numerous Democrats voting in support, on H.R. 1181 – Veterans 2nd Amendment Protection Act, which would prevent the Department of Veterans Affairs from stripping a veteran’s right to Keep and Bear Arms in the absence of an order or finding by a judge, magistrate, or other judicial authority that such veteran is a danger to himself or herself or others.

Specifically, H.R. 1181 provides:

Notwithstanding any determination made by the Secretary under section 5501A of this title, in any case arising out of the administration by the Secretary of laws and benefits under this title, a person who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not be considered adjudicated as a mental defective under subsection (d)(4) or (g)(4) of section 922 of title 18 without the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others.

It now moves to the Senate for approval, where we need YOUR support. Please contact your U.S. Senators and tell them to SUPPORT H.R. 1181.

As many of you are aware, I recently detailed a client’s putative loss of his Second Amendment rights through the VA, because the VA, sua sponte and in the absence of any form of due process, elected to place him into “supervised direct payment status.”

It is imperative that we protect our veterans and enact H.R. 1181! Please take a few minutes out of your day to contact your Senators and let them know that it is time that we treat our veterans with the respect and dignity they deserve and ensure the protection of their constitutional rights – the rights that they have steadfastly defended of ours. Our veterans are not second-class citizens and our Senators need to know that we’ll defend their rights, just as they’ve been willing to sacrifice everything to preserve our rights.

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Superior Court Holds That Switchblades Are Not Protected By The Second Amendment

Yesterday, in a very short non-precedential opinion, a three judge panel of the Superior Court held in Commonwealth v. William Battle that a switchblade is not protected by the Second Amendment.

As discussed in the decision, there is no dispute that upon entering the Pike County Administrative Building, Mr. Battle emptied his pockets, including a switchbade knife, at the metal detectors and was thereafter arrested. The sole issue that he raised on appeal was: “Whether the Pennsylvania Crimes Code, in prohibiting the possession of automatic knives, violates the right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution?” Interestingly, it does not appear that an argument was raised in relation to Article 1, Section 21, although I cannot honestly state that I believe the outcome would have been any different.

In the 5 page decision, for which the U.S. Supreme Court’s most recent Second Amendment holding Caetano v. Massachusetts is not mentioned (and causes me to wonder whether Mr. Battle’s public defender addressed it- UPDATE: Battle’s attorney Jason Ohliger confirmed below in the comments that he did raise it and it was central to his argument), the Superior Court declares that “Appellant’s reliance on Heller is misplaced, as offensive weapons are not covered by the constitutional right to bear arms.”

In what can only be described as a twisted form of logic to support its conclusion, the court states that since switchblades “are not possessed by law-abiding citizens for lawful purposes,” they are considered dangerous and unusual weapons. Thus, by the mere fact that the General Assembly declared them unlawful – thereby preventing individuals from lawfully possessing switchblades – the court contends that switchblades are not possessed by law-abiding individuals. Does that make your head hurt? Cause it does mine.

In essence, if the court’s logic was correct, then D.C.’s ban that was struck down in Heller as unconstitutional, should have been declared constitutional, since it was unlawful for any law-abiding individual to possess an operable firearm in his/her home in D.C. Also lost on the court is the fact that only 15 states ban switchblades, with the remaining finding that they do have a common lawful purpose. Unfortunately, I doubt this was brought to the court’s attention. UPDATE: Contrary to my assumption, Battle’s attorney Jason Ohliger confirmed below in the comments that he reviewed which states permit vs. which states do not permit switchblades.

The only saving grace is that this decision was a non-precedential decision by a three judge panel. Pursuant to the Superior Court’s Internal Operating Procedure 65.37:

An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party to the Court.

If you have been charged with carrying a switchblade, contact us today to discuss your legal options.

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Filed under Constitutional Law, Firearms Law, Pennsylvania Firearms Law, Uncategorized

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.

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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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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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Major Pennsylvania Firearm Cases of 2016

As the year is coming to a close, I thought it important to document some of the monumental court decisions that Firearms Industry Consulting Group® (FICG®), a division of Prince Law Offices, P.C., obtained in 2016, as well as, some other cases of importance.

We were successful in a monumental case of first impression in obtaining a decision from the Commonwealth Court holding that all license to carry firearms applicant information is confidential and not subject to disclosure. The court held that disclosure through an un-enveloped postcard was a public disclosure.

The Pennsylvania Supreme Court in Commonwealth v. Childs re-affirmed that the Castle Doctrine is an inalienable/inherent right.

There was the U.S. Supreme Court decision in Birchfield v. North Dakota that held that a state may not imposed additional criminal sanctions or penalties on someone refusing a breathalyzer or blood draw. Although we were not involved in the Birchfield decision, as a result of the decision, we were able to get numerous individual relief from previously prohibiting convictions and plea deals.

In another case of first impression, we were successful in a Second Amendment as-applied challenge in relation to a mental health commitment. The District Court even 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.

In a monumental order, the Superior Court vacated its decision in Commonwealth v. Goslin and ordered re-briefing and argument on whether Mr. Goslin, who merely possessed a lawful pocket knife on school grounds, was entitled to the defense of his possession constituting an “other lawful purpose.” This was after the Superior Court had issued a devastating opinion holding that one could only possess a weapon on school grounds if it related to and was necessitated by the reason the individual was on school grounds. We now await the court’s decision.

The most recent decision was in relation to Lower Merion Township’s illegal firearm ordinances, which precluded individuals from possessing and utilizing firearms in their parks, in direct contravention of Article 1, Section 21 of the Pennsylvania Constitution and our state preemption, found in 18 Pa.C.S. 6120. The Commonwealth Court found that Firearm Owners Against Crime (FOAC) was entitled to an injunction.

These are but a few of the extremely important, pro-Second Amendment, decisions that were rendered this year in Pennsylvania.

If your rights have been violated, contact us today to discuss your options! Together, we can ensure that YOUR constitutional rights aren’t infringed!

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Oral Argument in Commonwealth v. Goslin – Possession of a Weapon on School Grounds

Today, the Superior Court, en banc, heard oral argument in the matter of Commonwealth v. Goslin, 1114 MDA 2015, where Mr. Goslin was previously convicted for merely possessing a lawful pocketknife on school property.

As many of our viewers are aware, I was previously successful in having the court vacate its prior decisions and order re-briefing and re-argument.

The en banc panel of the Superior Court was comprised of Judges Bender, Bowes, Panella, Lazarus, Ott, Stabile, Dubow, Moulton and Ramson.

As soon as I began my argument, the Judges began to pepper me with questions, including a very direct question by Judge Bowes of whether the prior (vacated) decision of the Superior Court violated the Second Amendment. As I had argued in our briefs, I responded that if the Court were to find, consistent with its prior decision, that an individual may only possess a weapon on school property relative to a school activity or course, it would violate the Second Amendment. I used this this opportunity to provide an example – I explained that my alma mater, The Hill School in Pottstown, PA, is a boarding school, where both the students and teachers live on campus. If the Court were to affirm its prior decision, teachers would be foreclosed in possessing firearms in their homes, which the U.S. Supreme Court found was at the “core” of the Second Amendment in Heller and would therefore result in the law being unconstitutional. Judge Bowes nodded her head in agreement.

At that point, Judge Moulton inquired whether the school in this matter was not one where teachers lived on campus. After confirming that such was my understanding, he then stated then that isn’t applicable to the case before us. At that point, I respectfully responded that it is to the extent the Court resorts to statutory construction, as one of the criteria to be considered is the unintended consequences of a particular interpretation. At that point, Judge Moulton stated that there were numerous unintended consequences of the prior ruling, as pointed out in our briefs.

Judge Bowes asked me to then explain our position on the defense found in Section 912(c) providing for two separate and distinct circumstances. I explained that in relation to the first, where the weapon is possessed in relation to a school activity or course, the General Assembly permitted both “possession” and “use”; whereas, in the second, where a weapon is possessed for “other lawful purposes,” I explained that the General Assembly only permitted possession. I then went on to explain that although “use” would generally be prohibited in relation to the “other lawful purpose” clause, an individual could still use the weapon, if such was necessitated, under the statutory provisions for justification or self defense. Judges Lazarus, Bowes, Bender, Stabile and Dubow all seemed to be nodding their heads in agreement. I further explained that the laws of the Commonwealth define that which is unlawful; not that which is lawful. As the Superior Court has previously held that a pocket knife not only has a lawful purpose, but a “common lawful purpose”, Mr. Goslin’s conduct clearly meets the criteria of possession for an “other lawful purpose.”

Judge Lazarus then asked me (based on an argument in our brief) if an officer, who was attending a parent teacher conference, possessed a firearm during that time, whether he would have violated the statute. I responded that he would not, assuming the Court were to agree with our interpretation, as the officer would have no unlawful purpose; however, if the Court were to affirm its prior decision, then the officer’s possession of a firearm would not be necessitated by his reason for being on school grounds and he would be in violation of the statute. Judge Lazarus and several others nodded their heads in agreement.

At that point, Judge Moulton asked me to address the vagueness issue and whether that would preclude a criminal conviction, as we had additionally argued in the alternative. I explained that although we believe the statute was not vague, if learned jurists of the Superior Court could not agree on what constituted a lawful purpose, then the statute must be found to be too vague to support a criminal conviction, as no lay person could possibly know whether or not his/her conduct was lawful. All the judges seemed to agree with that proposition.

As I had reserved 5 minutes of rebuttal time, my time was up (in actuality, after the buzzer went off for my initial 10 mins, the Judges continued to ask question for at least another 3-4 mins). At this point the Assistant District Attorney (ADA) tried to start his opening remarks and got hammered with questions. The Court was somewhat relentless in questioning why the DA would bring charges in this, of all, situations, especially where they were arguing that the statute was vague. In this vein, the Court asked why the DA would not use prosecutorial discretion not to charge, instead of moving forward with charging where they acknowledge the statute is vague. Judge Lazarus asked why would they bring this specific charge in this context, to which the ADA responded that they had also previously filed charges for Terroristic Threats. Judge Lazarus almost fell out of her chair at the ADA’s statement and she even clarified that “You’re telling us, that because he took a pocketknife out of his pocket and placed it on the table, during a conference at school, that such constituted a terroristic threat?” When the ADA confirmed such, I truly believe based on Judge Lazarus’ facial expressions that she thought she was living in the twilight zone.

At this point, Judge Lazarus posed the question to the ADA that she posed to me. The ADA conceded that if this Court’s prior holding was affirmed (as they were arguing for), then the officer would have violated the statute. Judge Lazarus immediately asked if he would prosecute the officer. Although the ADA may have responded, I never heard an actual response and it was quite clear that Judge Lazarus was incensed by the DA’s position in this matter. Judge Stabile followed up by asking (based on an argument in our brief) whether a student, who possessed a baseball bat on school property for use after school in a non-school related activity was in violation. The ADA conceded that under their interpretation, such would be a violation. Judge Stabile shook his head seemingly in amazement at the DA’s position.

Before long, the ADA’s time was up and I think he was relieved to be done; but, I still had 5 minutes reserved for rebuttal.

First, I used the opportunity to respond to the ADA’s comment that the purpose this statute was enacted was to protect students from violence. I explained that we have laws on the book precluding murder, voluntary and involuntary manslaughter, aggravated and simple assault, terroristic threats and recklessly endangering another person, including the inchoate crimes of attempt, solicitation and conspiracy, most of which have far harsher grading than Section 912 and which have not stopped criminals from committing crimes in schools or in society at large. Several judges nodded in agreement.

I also used that time to draw to the Court’s attention another statute, Section 908 – Prohibited Offensive Weapons, where we see similar language utilized. There, it talks about weapons that have no “common lawful purpose.” I explained that this shows that the General Assembly, where it believes appropriate, knows how to even limit lawful purposes to those that are “common” but that the General Assembly in Section 912 permitted all lawful purposes, regardless of how common or uncommon they are. At that point, my time was up and I respectfully requested that the Court reverse the trial court, enter a finding of not guilty and hold that an individual may possess a weapon on school grounds, provided that it is not utilized for unlawful purposes.

As our readers are aware, unfortunately,  Mr. Goslin is not in a position to fund this litigation. Therefore, if you are in a position to be able to help fund this matter, Mr. Goslin would greatly appreciate donations which can be made online through our Firm’s escrow account here – https://secure.lawpay.com/pages/princelaw/trust. Simply place Goslin Appeal in the Matter No/Client Name box.

We will keep our viewers apprised of the Superior Court’s ultimate decision in this matter

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