U.S. v. Olofson

Gun Owners of America and Gun Owners Foundation have taken over the legal defense of David Olofson who was convicted of transferring an unregistered machine gun.

GOF/GOA FILE AMICUS BRIEF
IN SUPPORT OF AKINS ACCELERATOR

On November 26, 2008, Gun Owners Foundation (GOF) and Gun Owners of America (GOA) filed in the United States Court of Appeals for the 11th Circuit a friend-of-the-court brief in support of Bill Akins effort to reverse a 2006 ruling handed down by the Bureau of Alcohol, Tobacco and Firearms (ATF) that the Akins Accelerator is an illegal machinegun.

Prior to the 2006 ruling, Mr. Akins submitted the accelerator to ATF, requesting that ATF determine whether the accelerator converted a semi-automatic firearm into a machinegun. Twice, ATF notified Mr. Akins that it had tested the accelerator and determined that it was not a machinegun. Rather, both tests revealed that the accelerator simply enabled a semiautomatic rifle to shoot at an increased rate of fire, not with a single pull of the trigger, but only upon subsequent multiple functions of the trigger pressing against the shooter’s well-placed trigger finger. Thus, the accelerator did not fit within the statutory definition of a machinegun because the firearm did not shoot automatically at the “single function of the trigger.”

In reliance on this official ATF decision, Mr. Akins invested his life savings to bring the accelerator into commercial production and sale. Within months after the accelerator was placed on the market, ATF issued its 2006 ruling that the accelerator was — after all — a machinegun, forcing Mr. Akins to close down his company and cease production and sales. To reach this decision, ATF overruled its previous decision because the multiple trigger functions were not caused by a multiple trigger “pulls,” but were set in motion by an initial “single pull” of the trigger.

In support of Mr. Akins’ primary claim that the ATF 2006 decision was arbitrary, capricious, and contrary to the legal definition of a machinegun, the GOF/GOA amicus brief emphasizes that the 2006 ruling was made in flagrant disregard of the plain language of the statutory definition of a machinegun — that “single function of the trigger” was not the same as “single pull of the trigger.” Indeed, as pointed out in the amicus brief, ATF substituted “single pull of the trigger” for “single function of the trigger” because it was “necessary” to protect the “public safety” — as if Congress had given ATF unbridled discretion to outlaw “dangerous weapons,” when in fact Congress had enacted the Firearms Owners Protection Act (FOPA) in 1986 to specifically limit ATF discretion, not to unleash it.

Calling attention to Congress’s commitment in FOPA to confine the reach of federal firearms statutes to the constitutional parameters set forth in the Second, Fourth, Fifth, Ninth and Tenth Amendments, the GOF/GOA brief urged the court of appeals not to defer to ATF’s claimed firearms “expertise,” calling the court’s attention to the recent Supreme Court ruling in District of Columbia v. Heller that the Second Amendment’s “enshrinement” of an individual right to keep and bear arms “necessarily takes certain policy choices off the table.”
A decision on the Akins appeal is expected in the summer or fall of 2009.

Please click here to view the Akins Amicus Brief in PDF format

Amicus Brief: D.C. v. Heller

On February 11, 2008, Gun Owners of America and Gun Owners Foundation, along with several other groups, filed an amicus curiae brief in the Supreme Court supporting the respondent in the D.C. gun ban case, District of Columbia, et. al., v. Dick Anthony Heller, No. 07-290.

The issue in this case is whether three D.C. Code provisions violate a Second Amendment right to keep and bear arms for private use in one's home. Under long-standing rules limiting its jurisdiction, the Court should not entertain the Solicitor General's invitation to assess the constitutionality of the whole array of the current federal firearms statutes. Nor, in response to Petitioners and the Solicitor General, should the Court craft a standard of review not supported by the text to permit "reasonable" gun control. Rather, the Court should apply a standard of review dictated by the words and principles embodied in the Second Amendment, as directed by America's founders.

According to its text, context, and historic setting, the Second Amendment protects an individual right to private possession and use of handguns in one's own home. The individual right to keep and bear arms is essential to a "well regulated militia" -- a self-bodying, self-governing association of people privately trained to arms, modeled after the colonial militia that took up their privately-owned firearms to defeat a tyrannical effort to confiscate their arms. In turn, a "well regulated militia" ensures the preservation of a "free state" by allowing all members of the American polity to exercise, if necessary, the sovereign right of the "people" to reconstitute their government. In order to ensure its purpose to preserve the people's liberties, the Second Amendment bans discriminatory legislation against classes of persons that, by nature, are rightful members of "the people." In order to ensure its means to defeat tyranny, the Second Amendment bans discriminatory legislation against firearms that are essential to a preserve those liberties. By discriminating against law-abiding D.C. citizens and against handguns, the D.C. Code provisions violate both of these standards and, therefore, unconstitutionally infringe upon the right of the people to keep and bear arms.

Gun Owners Foundation filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit in support of the State of Wyoming and Wyoming Attorney General Patrick J. Crank. The Bureau of Alcohol Tobacco and Firearms ("BATF") argued that Wyoming Stat. Ann. § 7-13-1502(k), which provides for the expungement with regards to restoring firearms rights to a person convicted of the misdemeanor crime of domestic violence ("MCDV"), (a) is insufficient as an exemption from the NICS background check and (b) does not authorize the person eligible to purchase a firearm.

In a letter dated August 6, 2004, BATF advised the Wyoming AG that, after review of the Wyoming MCDV expungement statute, it had concluded that Wyoming law did not meet the federal "complete expungement" standard governing MCDV convictions, as set forth in 18 U.S.C. § 921(a)(33). In response to BATF's final ruling against Wyoming's statute, Wyoming's AG filed a complaint against BATF in U.S. District Court for the District of Wyoming as being "arbitrary and capricious, and in direct violation of federal law" and, therefore, in violation of 5 U.S.C. § 706(2)(A). The district court ruled against the State, adopting BATF's interpretation of the disputed firearms statutes.

GOF's brief argued that the district court, contrary to relevant and controlling case law precedent, erroneously upheld BATF's ruling, because Congress has directly and unambiguously established that expungements of state criminal convictions are to be determined by state law, not by an overriding federal standard, and that BATF's ruling violates 5 U.S.C. § 706(2)(A).

By seizing a gun dealer's inventory, and subjecting those seized firearms to forfeiture, BATF has, in many cases, put gun dealers out of business, and in many others put those businesses in jeopardy of having to close their doors. Outraged by these tactics, GOF decided to do something about it. On July 4, 2007, in response to this practice and other BATF seizures of firearms, Gun Owners Foundation published BATF Firearm Civil Forfeiture Procedures and Policies: An Attorney's Guide. The guide is intended to provide a procedural overview for attorneys unfamiliar with civil forfeiture law as it applies to firearms, including what to expect from the BATF, and how to go about recovering seized assets. The Guide primarily contains practical insight into the sometimes arcane, and oftentimes complex and confusing, system which favors the BATF's persistent effort selectively to disrupt, and thereby, destroy law abiding firearms and ammunition dealers.

This is the official transcript of Len Savage's testimony on June 19, 2007 in the Albert Kwan case. Kwan was charged with possession of an unregistered machine gun and possession of an unregistered short-barreled rifle. A jury acquitted Kwan of the machine gun charge, and found him guilty on the short-barreled rifle charge.

In his testimony Savage established himself as a firearms expert in Federal Court and showed that the BATFE needed to spend a significant amount of time and effort to modify Kwan's M14 semi-automatic rifle so that it would function as a fully-automatic firearm. He also debunked the BATFE's "once a machine gun always a machine gun" regulation and listed several instances where the Firearms Technology Branch had made mistakes in classifying firearms. Finally, Savage explained how the BATFE could prosecute most gun owners for possession of an unregistered machine gun: given enough time, tools, and parts, any semi-automatic firearm can be converted to a fully-automatic firearm.

On May 25, 2007, Gun Owners Foundation filed a Brief Amicus Curiae in the U.S. Court of Appeals for the Fifth Circuit supporting the appeal of Border Patrol Agents Ramos and Compean. Counts four and five of the indictment charge the two with "Discharge of a Firearm in Relation to a Crime of Violence," which the Supreme Court has ruled is only a sentencing factor, not one of the three elements "using," "carrying," or "possessing" a firearm. See Harris v. United States, 536 U.S. 545 (2002).

Watson v. United States: Strict Construction And "Use Of A Firearm"

State of Wyoming v. BATFE: GOF Amicus Brief

On August 18, 2006, GOF filed an amicus curiae brief in the U.S. District Court for the State of Wyoming on behalf of the State of Wyoming, and the Wyoming Attorney General, Patrick J. Crank.

Mr. Rudolph Stanko was convicted of possession of a firearm and ammunition in violation of 18 U.S.C. Section 922(g)(1), which prohibits any person from possessing a firearm or ammunition if that person has been convicted of certain types of crimes punishable by imprisonment for a term exceeding one year. According to the statutory definition, the predicate crime cannot be any federal or state offense "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."

The indictment against Mr. Stanko charged a violation of Section 922(g)(1) based upon a prior conviction of conspiracy of violating the Federal Meat Inspection Act. Prior to trial, defendant's attorneys moved to dismiss the indictment on several grounds, including that the crime of which Mr. Stanko was convicted fell within the category of excluded business offenses. The motion was denied, and the case was submitted to the jury without any mention of the business exclusion or any evidence that the crime of which Mr. Stanko had been convicted fit within the exclusion.

On November 2, 2006,Gun Owners Foundation filed an amicus brief in support of Mr. Stanko's appeal to the United States Court of Appeals for the Eighth Circuit, contending: (a) that the indictment was legally defective because it failed to allege that the predicate crime did not fit within the business exclusion; and (b) that the jury instructions were invalid because they did not submit the business exclusion issue to the jury. Since the business exclusion is part of the statutory definition of the predicate crime, it is an element of the offense, and thus, must be alleged in the indictment and submitted to the jury. Failure to do so deprived the defendant of his Sixth Amendment right to trial by jury.

Gun Owners of America Founder Sen. H.L. Richardson (Ret.) actually authored the California state law that made this gun ban illegal to enact.