Today the U.S. Supreme Court decided the case of Rosemond v. U.S.
You will recall that we filed an amicus brief in this case on August 9, 2013.
The decision is not easy to summarize, as it was a split decision.
However, on balance we found more to dislike in Justice Kagan's opinion than to like.
There were only two amicus briefs in this case, ours and one from the National Association of Criminal Defense Lawyers.
We received an email from a reporter for BNA's Criminal Law Reporter who was writing an article on the decision.
After giving the case some thought, we gave her as a comment, what appears below. She said she would use it and send us a copy of what she writes.
The Supreme Court claims that, in Solomonic fashion, "both parties here will find something to dislike."
On the one hand, it agreed with the Government that a defendant convicted of a drug trafficking should be sentenced to an additional 5 years just because he knew that a firearm was present.
John Drake v. Edward Jerejian
February 12, 2014
Gun Owners Foundation (along with GOA) filed a brief to the U.S. Supreme Court, challenging New Jersey’s concealed carry laws. Click here to read the brief.
In New Jersey, it is a crime to possess a firearm unless you can prove that you fit within one or more tightly-drawn statutory exemptions. One exemption allows a person to have a handgun on his own property, but he may not step one foot beyond unless the gun is fully disabled and he is heading to an approved destination.
New Jersey carry permits are like honest politicians -- they are rumored to exist, but few have ever actually seen one. As one State legislator observed: “It is virtually never done.” An ordinary person may be granted a permit only if he can prove to the satisfaction of a judge that his life is in grave danger. Certain members of the privileged class of government workers are permitted to carry firearms; they need only prove that they are currently or were formerly employed in law enforcement.
GOF filed an amicus brief in the U.S. Supreme Court, in support of John M. Drake and several other ordinary New Jersey citizens who applied for but were denied permits to carry their handguns in public, because they could not prove that their lives were in imminent danger. Our brief makes three arguments.
First, the federal judges below simply refused to analyze the New Jersey gun control scheme according to the original meaning of the Second Amendment and established constitutional norms. Instead, judges in both courts substituted their own ideas about gun control in disregard of America’s founders.
January 27, 2014
Every day we read about SWAT teams serving arrest warrants or search warrants at people’s homes, using no-knock raids in the middle of the night. Many of these police home invasions go wrong, with innocent people being shot, and sometimes killed, just because they were trying to defend themselves. Even criminals have learned to claim that they are the police while breaking into homes, to discourage resistance.
The Quinn v. Texas case now presents the significant legal issue of whether police are justified in using no-knock home invasions simply because they know the occupants own a firearm. On January 27, 2014, Gun Owners Foundation helped file an amicus curiae brief in the U.S. Supreme Court in Quinn v. Texas, in support of the grant of a petition for certiorari, to obtain a review of this issue.http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-765.htm
John Quinn was asleep in his bed when Texas police broke down his door in the middle of the night, and shot him when he reached for a weapon, thinking his home was being invaded. The police were there to serve a search warrant for his son, Brian, who they suspected of dealing drugs.
The only justification for the no-knock raid that police gave was that John Quinn owned a firearm. The police claimed that firearms ownership was enough to present a danger to law enforcement, even though they knew John Quinn had a concealed carry permit — meaning the state of Texas had pronounced him to be a safe, law-abiding citizen.
January 23, 2014
Gun Owners Foundation helped file our third amicus brief in support of Chris Hedges and the other journalists and political activists who are challenging Section 1021 of the National Defense Authorization Act of 2012 (http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf), and its authorization of the military detention of civilians based on vague standards of providing "support" for an adversary of the United States.
These NDAA standards were so vague that when asked, the U.S. Justice Department refused to say that Chris Hedges and the other plaintiffs could not be arrested by the military, e.g., for their reporting on middle eastern affairs, which includes interviews with, and even embeds with, foreign organizations.
This brief (in conjunction with other plaintiffs) was filed in the U.S. Supreme Court, urging that it grant certiorari and review the decision of the U.S. Court of Appeals for the Second Circuit. The Second Circuit determined that the plaintiffs did not have standing to challenge detention, as the NDAA statute did not really say what it appeared to say, and that it was a nullity as to American Citizens. The Second Circuit left unaddressed whether American citizens could be detained by the military under the Authorization for the Use of Military Force (https://www.govtrack.us/congress/bills/107/sjres23) passed hurriedly after the events of September 11, 2001.
Our brief explained why the Court needs to address the issue of military detention of civilians. It explained that NDAA 2012 was fundamentally different from the AUMF. It explains that laws are often written in an ambiguous manner to give politicians deniability when called to account by their constituents. And it discussed how why NDAA 2012 eliminated the protections of the U.S. Constitution's treason clause.
U.S. v. James Castleman
December 23, 2013
Gun Owners Foundation filed an amicus curiae brief in the U.S. Supreme Court in U.S. v. Castleman, in support of the grant of a petition for certiorari. This case involves the meaning of the term “physical force” contained in the federal law defining misdemeanor crimes of domestic violence (“MCDV”), popularly known as the Lautenberg Amendment. Click here to read the brief.
Passed in 1996, the Lautenberg Amendment makes it a federal crime for a person to acquire or possess a firearm after he has been convicted of a MCDV. An MCDV is defined as a crime that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”
In this case, the government argued that “physical force” should be read as simply requiring “force,” of any sort. Once the statute is watered down in that way, the government argued that the statute should be read as invoking the common law meaning of assault and battery, which includes any nonconsensual, minor, slight offensive touching. But Congress expressed its desire to penalize violent men who beat their wives -- not anyone who might push, touch or spit on a family member. Our amicus curiae brief points out that the word “physical” cannot be read out of the statute, based on the principle that each word in a statute must have its ordinary meaning.
December 3, 2013
On December 23, 2013, Gun Owners Foundation helped file an amicus curiae brief in the U.S. Supreme Court in Abramski v. United States, in a case challenging the Bureau of Alcohol, Tobacco, and Firearms’ (ATF) definition of what constitutes an illegal “straw purchase” of a firearm. This case involves one of the greatest instances of regulatory and prosecutorial abuse that we have ever seen.
The concept of a “straw purchase” is a “doctrine” created by ATF and the courts, rather than a “crime” enacted by Congress. Indeed, as pointed out in our brief, in the immediate aftermath of the Newtown, Connecticut school shootings, Senators Leahy and Schumer introduced a bill (that was not enacted) to outlaw straw purchases. If straw purchases were already illegal, then there would have been no need for such a bill to be introduced.
In this case, Petitioner Abramski, a former police officer who was eligible to own firearms, bought a handgun for his elderly uncle who was also eligible to own firearms. Both men passed a NICS background check, yet ATF claimed that Abramski lied on his Form 4473 when he claimed he was the “actual buyer” of the firearm. ATF argued that Abramski’s statement was “intended or likely to deceive” the Federal Firearms Licensee (“FFL”), even though he specifically asked two FFLs who both told him that he was following the law.
ATF on NFA Weapons
December 3, 2013
Gun Owners Foundation (along with GOA) submitted comments to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) opposing an ATF Notice of Proposed Rulemaking.
ATF’s proposed rule PR would change the requirements for applications to make or transfer certain National Firearms Act firearms and devices. Many Chief Law Enforcement Officers (or CLEOs) are opposed to an armed citizenry and, for that reason alone, simply refuse to sign NFA paperwork for any persons in their jurisdiction.
However, under current rules, a person can still obtain an NFA weapon by using a trust or corporation. Under proposed rulemaking, though, the Obama ATF would require trusts and corporations to submit photographs, fingerprints and CLEO approval for every “responsible person” connected with the trust or corporation.
GOF’s comments pointed out that ATF does not have the statutory authority to require photographs and fingerprints from trusts and corporations, since the statute only requires fingerprints and photographs if the applicant is “an individual.” Indeed, based on our research, our comments explain why ATF has no authority to require CLEO signoff from anyone — even for individuals. The purpose of the National Firearms Act was taxation, and identification of the person and gun taxed, rather than regulation, and determination of the eligibility of the buyer.
Raymond Woollard, et al. v. Denis Gallagher, et al.
August 12, 2013
Amicus Brief in the United States Supreme Court
On August 12, 2013, Gun Owners Foundation filed an amicus brief in the United States Supreme Court in Woollard v. Gallagher in support of a petition asking the Court to strike down Maryland’s ban on the carrying of handguns by ordinary citizens unless they first demonstrate a “good and substantial reason” to law enforcement.
While the federal district court in Maryland had decided the case in Mr. Woollard’s favor, the U.S. Court of Appeals for the Fourth Circuit reversed that decision, using a “balancing test” to come to conclude that Maryland may override the Second Amendment right to keep and bear arms in the name of public safety.
Both lower courts used a judicially-created balancing test, coming to opposite conclusions, thus demonstrating the illegitimacy of subjective, judge-made tests. GOF’s position is simple: the founding fathers determined that Americans have the right to bear arms both inside the home and out, regardless of how “compelling” the state’s desire to infringe their right.
As the Supreme Court ruled in the Heller case, the Second Amendment means what it says — the right to keep and bear arms shall not be infringed. Our brief reminds the Court of the absolute nature of the right, leaving no room for federal judges to “balance” away the guarantee, no matter how strict or loose the test may be.
GOF Sues ATF to Produce Documents
On June 6, 2012, Gun Owners Foundation filed suit in the U.S. District Court for D.C. to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to produce thousands of documents related to Operation Fast & Furious.
Depending upon the outcome of this case, Justice Department officials could spend time in jail.
Last year, GOF submitted a Freedom of Information Act (FOIA) which -- not surprisingly -- has virtually been ignored by the ATF. Although the agency has told GOF several times that it would comply with the FOIA request, the ATF has violated each and every one of its self-imposed deadlines.
On March 16, 2011, Congressman Darrell Issa, Chairman of the House Committee on Oversight and Government Reform, sent a letter to ATF requiring production of records related to their involvement in Operation Fast & Furious -- where thousands of firearms were smuggled from the United States to Mexico.
On April 21, 2011, Gun Owners Foundation submitted its own FOIA request to the ATF, to which the ATF has responded in various ways. The agency has sometimes ignored our requests entirely. Several times, ATF has promised (but failed) to produce information by a certain date. And at least once, the ATF suggested we were mistaken, claiming that they had already given us the requested information -- only to follow up that communication with a new promise and new deadline for producing the requested documents.
If the court finds in favor of the GOF complaint, the ATF will have to produce the requested documents or face “contempt of court” charges. Given that media reports indicate the House of Representatives may decline to press contempt charges, Gun Owners Foundation remains committed to pressing this case until justice is realized.
Please help Gun Owners Foundation to continue doing this important work.
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United States v. Antoine Jones
GOF has filed an amicus brief in the case of United States v. Antoine Jones in the United States Supreme Court in support of respondent, Antoine Jones. Our amicus brief argues that the government's extreme position that the Fourth Amendment does not apply to GPS surveillance on public roadways is insupportable.
The government’s extreme view that the Fourth Amendment is completely irrelevant is made possible only by the Supreme Court’s mistaken jurisprudence that the Fourth Amendment only applies to situations wherein persons have a “reasonable expectation of privacy.” The "expectation of privacy" test for searches and seizures arose without support in the text or historical context of the Fourth Amendment, and has proven wholly inadequate to protect the American people from their government.
The Fourth Amendment has been whittled away and courts have allowed random gun sweeps, among other warrantless searches. If the court agrees with the GOF brief, the Fourth Amendment will be restored to its original meaning.
April 13, 2011 - Connecticut versus Walter Reddy and the Second Amendment
April 4, 2011 - GOA and the Gun Owners Foundation's friend of the court brief urging the Supreme Court to strike down anti-gun Obamacare.
Gun Owners Foundation offers arguements on the Heller II case
Gun Owners Foundation argues that the Seventeenth Amendment providing for the popular election of senators necessarily permits recall of those same officials.
Gun Owners Foundation, Gun Owners of America and Virginia Citizens Defense League filed a brief on April 13, 2010 in support of the MT Firearms Freedom Act. The brief argues that there is no authority for federal gun controls, and that also, even federal law recognizes that MT can have a Firearms Freedom Act.
In U.S. v. Skoien Gun Owners Foundation argues that removing the right to keep and bear arms from felons is not constitutional.
Gun Owners Foundation filed a friend of the court brief on April 2, 2010 in support of an appeal by Steven Skoien arguing that his firearm disability for a domestic violence conviction (a Lautenberg conviction) unconstitutionally violates Mr. Skoien's constitutional right to keep and bear arms. That may not be impaired unless he voluntarily relinquishes his citizenship.
GOF & NRA positions on the Second Amendment as revealed in the Skoien amicus briefs.
On August 18, 2010, GOF filed an amicus curiae brief filed supporting petitioner’s challenge to Alameda County, California’s ban on firearms possession on county property, effectively ending gun shows in the county.
The ordinance was introduced by a county Supervisor who, in her own words, wanted to “ban gun shows.” The county claims it was responding to gun violence, but the reality is that the county was simply trying to keep peaceful gun owners from gathering to buy and sell firearms.
GOF’s brief argues that the Second Amendment implicitly protects a private property right to acquire, possess, use and dispose of firearms. Thus, the Second Amendment protects unimpaired commerce in firearms of the kind that takes place at gun shows. California law already heavily regulates firearms, and gun shows are one of the only constitutionally-protected sources of arms.
GOF’s brief then explains the difference between “sensitive places” like courthouses and schools, compared to places like the county fairgrounds. Whereas a courthouse is not open to the public for public use, Alameda County has designated the fairgrounds to be open to the public, including for use in lawful commercial enterprise. Since the County has given everyone a right to use the fairgrounds, the County Commissioners cannot now decide that they do not like gun owners, and prohibit them from using the fairgrounds for gun shows.
Gun Owners Foundation and Gun Owners of America were joined by Gun Owners of California, Inc. in filing the amicus brief in the case Nordyke v. King, U.S. Court of Appeals for the Ninth Circuit, No. 07-15763.
On Monday, November 23, 2009, Gun Owners of America and Gun Owners Foundation filed a friend-of-the-court brief in the United States Supreme Court in support of four Chicago residents who are seeking to invalidate a city ordinance prohibiting them from owning or possessing a handgun in their own home. The GOA/GOF brief argues that the privileges or immunities clause of the 14th Amendment is the correct basis for ruling that the Second Amendment protects the individual right of all Americans, not just those living in Washington, DC. This brief also points out the pitfalls of using the due process clause to reach this conclusion.