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William J. Olson P.C.
Files 50th Supreme Court Brief



On May 13, 2011, with our amicus curiae brief in the Daniel Chapter One case, our firm had the privilege of making its 50th filing with the U.S. Supreme Court. This includes various types of filings: Petition for Certiorari, Jurisdictional Statement, Appellants' Brief, Reply Brief, Brief for Intervenor-Respondents, Amicus Brief at the Petition Stage, and Amicus Brief on the Merits.

Of course, most of these briefs have been amicus curiae (friend of the court) briefs, and many have addressed a wide variety of Constitutional issues --

Article I Section 1 (Delegation Doctrine)
Article I Section 2 (Census, Apportionment Clause)
Article I Section 4 (Time, Places and Manners of Elections)
Article I Section 6 (Speech & Debate Clause)
Article I Section 8 (Commerce Clause, Naturalization Clause, General Welfare Clause, Necessary & Proper Clause)

Article II Section 1 (Delegation Doctrine)
Article II Section 2 (Invasion)
Article II (Appointments Clause, Commander-in-Chief)

Article III, Section 2 (Case and Controversy, Standing, Political Question)
Article III Section 1 (Judicial Power)

Article IV Section IV (Republican Form of Government, Invasion)Article VI (Preemption)

First Amendment (Establishment Clause, Free Exercise Clause, Freedom of Speech, Freedom of Press, Right to Assemble, Right to Petition Government)
Second Amendment
Fourth Amendment
Fifth Amendment (Due Process, Equal Protection Component)
Tenth Amendment
Fourteenth Amendment (Due Process, Equal Protection, Privileges & Immunities)

Other briefs have addressed important statutory issues (U.N. Participation Act, Gun Control Act, National Firearms Act, Firearms Owners Protection Act, Uniform Code of Military Justice, Federal Election Campaign Act, etc.).

Our first Supreme Court filing was October 16, 1981, supporting the legality of President Reagan's action against striking air traffic controllers, which translates into 50 briefs in 30 years -- but we have been picking up the pace lately. Of course, we have also filed many other briefs in various U.S. District Court, U.S. Courts of Appeals, State Supreme Courts, etc. (All of these filings since the late 1990's and some earlier briefs are available on this website, and we are working to post the older filings as well.)


William J. Olson, P.C., Attorneys At Law

Firearms Law



Jackson v. City & County of San Francisco (July 3, 2014)

Today, our firm filed a brief to uphold gun rights in the U.S. Court of Appeals for the Ninth Circuit, in support of a Petition for Rehearing En Banc, in the case Jackson v. San Francisco, No. 12-17803.

San Francisco ordinances prohibit the possession of a handgun within the home unless it is (i) being worn on the person or (ii) locked away. San Francisco also prohibits the purchase of hollowpoint ammunition within city limits. A panel of three judges from the Ninth Circuit had upheld the ordinances on the ground that they “limit but do not destroy Second Amendment rights,” standing in stark contrast to the text of the Second Amendment which states clearly that the right “shall not be infringed.”

The panel defended the ordinances relying on First Amendment case law that permits government to regulate the “time, place, and manner” of certain speech. Our brief argued that First Amendment precedents have no application in Second Amendment cases, and in any event, “time, place, and manner” cases apply to speech in public places, while the San Francisco ordinances regulate conduct inside the home. Then, our brief explained why the Supreme Court’s decisions in Heller and McDonald did not sanction judicial use of First Amendment balancing tests, but indeed rejected their use in Second Amendment cases.

Next, our brief explained the proper judicial review in Second Amendment cases. If (i) a person is part of “the People,” (ii) his weapon is a protected “arm” and (iii) the activity is to “keep” or “bear,” then his right is absolute — not subject to any judicial balancing in light of the government’s desire to infringe the right. It is not up to the government to decide the permitted ways of “keeping” arms, or the types of ammunition that a person may use any more than it is up to the government to decide what types of books can be read. The Second Amendment prohibits all infringements — not just ones that Courts believe go too far.

The Ninth Circuit panel, in upholding the San Francisco ordinances, treated the Heller decision as if the right to keep and bear arms protects only a limited right to possess a handgun for self-defense in the home.

The panel, which ruled in favor of San Francisco, was forced to admit that San Francisco’s regulations on handguns within the home burden “core” Second Amendment rights. Yet, in disregard for the text of the Second Amendment, the panel applied a “standard of review” so absurdly deferential that its decision amounts to little less than a judicial rubber stamp.

The panel blindly adopted the City’s baseless assertions that the burden was “indirect” and thus insubstantial. The panel next blindly adopted the City’s baseless assertions that it had an important governmental interest in “public safety” which permitted it to regulate firearms and ammunition.

In short, while claiming to exercise judicial review, the panel left it entirely up to the City of San Francisco to decide the outcome of the challenge to its ordinance. All the City was required to do was make the assertions the court wanted — and if it did, then there would be no way it could lose. That is clearly not what the Second Amendment requires.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Nevertheless, yesterday, on July 17, 2014, the Ninth Circuit denied the petition for rehearing. The only silver lining is that the Ninth Circuit is also considering a petition for rehearing in another case -- Peruta v. San Diego -- where the Ninth Circuit sided with the challengers to an anti-gun law, and it may be that the Peruta case would be a good vehicle for the en banc Ninth Circuit to rule on gun rights.


Johnson v. United States (July 3, 2014)


Comments filed with Bureau of Alcohol, Tobacco, Firearms & Explosives opposing Multiple Rifle Sale Reporting for Gun Owners of America, Inc. & Gun Owners Foundation (June 16, 2014)


Shew v. Malloy (May 23, 2014)

Our firm filed in the U.S. Court of Appeals for the Second Circuit an amicus brief in support of Connecticut gun owners who challenged Connecticut’s ban of so-called “assault weapons” and “large capacity magazines.”

The law being challenged was passed by anti-gun Connecticut legislators and signed by an anti-gun Governor, riding a wave of hysteria following the December 2012 mass murder of elementary school children in Newtown, Connecticut. Those supporting the law claimed that to stop the violence “military style” weapons must be banned.

On the same day that we filed our brief, in Santa Barbara, California — the state which proudly claims to have the strictest anti-gun laws in the nation — another mentally deranged young male demonstrated that the problem is not guns. Indeed, in Santa Barbara, the shootings took place over a 10-minute period, during which there were no armed civilians who could take action to stop the shooter. The only gun problem is laws keeping guns from law abiding citizens.

In court, Connecticut made the old, tired arguments that the ban is necessary to protect the police and further public safety. The district judge agreed. Despite finding that the ban “substantially burdened” the Second Amendment right to keep and bear arms, he felt the burden was not unreasonable in light of the competing public interest. Even though rejected by the U.S. Supreme Court in the Heller case, the district court used a judge-empowering “balancing test” to justify the ban. Under this “test” barred access to semiautomatic weapons that even the trial judge admitted were constitutionally protected arms.

Our brief argued that the judicial standard of review for Second Amendment cases is the amendment’s text itself — “shall not be infringed.” If (i) a person is part of “the people,” (ii) a firearm is an “arm,” and (iii) the activity involves “keeping” or “bearing” — then the right is absolute, not subject to balancing against the interests the government has in violating the right. Since it is abundantly clear that these requirements are met in this case, the Connecticut ban must be struck down. It does not matter if the state provides “alternate access to similar firearms.” It is up to the American people, not the government, to choose which weapons "secure" a "free state" against tyrants — the stated purpose of the Second Amendment.

Our brief also argued that the Connecticut ban, by exempting favored government employees and those “persons” who submitted to the state’s registration system, creates unconstitutional “titles of nobility” for the state’s favored few. The Supreme Court has said that the Second Amendment is a right that belongs to “all Americans,” not just “an unspecified subset.”

Our brief was filed on behalf of: Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Oregon Firearms Educational Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.


Gun Owners of America & Gun Owners Foundation comments to ATF on “Adjudicated as a Mental Defective” (April 7, 2014)

President Obama announced that his Administration would do all in its power to stop gun violence. By that he seems to have meant reducing private ownership of firearms. Now, it turns out that he is not just doing things within his presidential power to achieve that objective – he is usurping legislative power to amend statutes unilaterally.

On January 7, 2014, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), issued Proposed Rules designed to vastly increase the number of Americans prohibited from owning firearms, including many U.S. Veterans, by changing the meaning of words contained in laws passed by Congress.

On behalf of Gun Owners of America, Inc. and Gun Owners Foundation, our firm filed comments opposing those proposed ATF rule changes.

Federal law prohibits persons who have been “adjudicated as a mental defective” from owning firearms. ATF claims that the terminology Congress used in the statute is “outdated,” purporting to “clarify” the term, ATF instead wants to rewrite the statute, greatly expanding its scope.

ATF alleges that Congress intended the law to apply “broadly” to “unstable” and “irresponsible” people, and has defined the term as including people who suffer from a “mental illness, incompetency, condition, or disease.” But that is not what the statute says. A “mental defective” is a person of “marked subnormal intelligence” or “gross ignorance or imbecility.” Congress never intended the law to apply to combat veterans suffering from PTSD, but that is one of the groups that have been targeted for disarmament.

Federal law also prohibits persons who have been “committed to a mental institution” from owning firearms. ATF wants to change the meaning of that phrase to apply to “both inpatient and outpatient commitments.” Those are, of course, very different matters. Inpatient commitment is generally used when a person is unable to function in society and needs to be forcibly confined for treatment in order to protect him and/or the public. Outpatient treatment, however, is for less significant problems, and may require a person only to take medication or follow some other course of prescribed treatment.

Finally, our comments noted that ATF never considered the Second Amendment when proposing its new definitions. After Heller, though, the government can no longer assume it may deprive people of their firearms rights at will. Instead of requiring a formal adjudication by a court before a person’s rights are taken from him, ATF has permitted unelected, unaccountable bureaucrats, such as those at the Veterans Administration, to decide willy-nilly who may and may not own guns.

This sort of lawless activity may be what Americans are accustomed to from this rogue agency, but it is not what they deserve. Government officials are the servants of the people, not their overlords.



Herb Titus Quoted in BNA Article “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun” (March 14, 2014)

Herb Titus was quoted in a Bloomberg Bureau of National Affairs (“BNA”) Criminal Law Reporter article entitled “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun.” The article involves the case Rosemond v. United States, in which our firm filed an amicus brief on August 9, 2013.

Herb was quoted as saying that “bare knowledge of the presence of a firearm is sufficient reason to impose an additional mandatory minimum consecutive sentence of five years.... The ruling has the effect of taking from the jury the key question of defendant’s guilt—his intent concerning the use of a firearm [and] upholds the power of prosecutors, not judges, to determine sentences given to thousands of defendants ... Prosecutors will continue to have power de facto to impose mandatory minimum sentences — the very sort of sentences that Attorney General Eric Holder claims to oppose.”



U.S. Justice Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System (March 10, 2014)

Our firm filed comments for U.S. Justice Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, particular adversely affecting Veterans.

Our comments explain that the HIPAA Privacy Rules have been perverted from their original purpose to enhance patient confidences. Especially, with the new proposed amendments, these rules are now better understood as not involving privacy, but providing a justification for the federal government to have access to all of your private medical information.

Moreover, the HHS proposed regulations are likely to have an adverse effect on veterans. It has been widely reported that veterans who may need help filling out complicated benefits paperwork are being administratively categorized (not “adjudicated” as required by statute) by unqualified persons wholly without due process of law. They are being placed on the NICS list, unconstitutionally depriving them of their Second Amendment rights.

The Veterans Administration apparently considers a veteran who has been issued a fully automatic weapon to help defend the country against overseas threats, but who needs help to navigate its considerable bureaucracy, to be mentally incompetent and disqualified from owning a semi-automatic weapon upon his return to this country. Such classifications are insufficient as a matter of law because they do not constitute a finding, and are not based on findings, that meet the statutory standard of “adjudicated as a mental defective or who has been committed to a mental institution.” Once so categorized, the veteran must navigate yet another bureaucracy to undo the damage that its claims processors do, only to discover that there is there is essentially little veterans can do to regain their Second Amendment rights.



Gun Owners Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System (March 10, 2014)

Our firm filed comments for Gun Owners Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, even for self defense in the home.

The HHS Proposed Rule (“PR”) is one of the “23 executive actions” announced by the Obama Administration allegedly in response to the Newtown, Connecticut mass shooting. It proposes changes in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulations which were designed to establish national standards to protect the privacy of healthcare records. This PR would authorize health care providers to provide information to the National Instant Criminal Background Check System (“NICS”).

Under 18 U.S.C. Section 922(g)(4), Congress banned from firearms posession only persons “adjudicated” mentally defective or “committed” to a mental institution — both of which require a formal, judicial process. ATF, however, has unilaterally expanded the law through its regulations to bar ownership of firearms by anyone who has been informally “found” or “determined” to lack the capacity to manage his affairs on account of mental “incompetence.” This expanded definition potentially includes Veterans Administration bureaucrats to bar tens of thousands of veterans who seek post-combat treatment for PTSD, or even older vets seeking a guardian to help with his finances, from owning firearms.

The HHS regulations make the illegal ATF regulations even worse by waiving the privacy rights we have in our own medical records, and allow all sorts of new entities to decide we are dangerous, and report us to NICS.

HHS claims its PR is necessary to remove a “perceived barrier” for reporting to NICS. Our comments noted that HHS appears to be operating under a misconception that states are not reporting to NICS solely because they misunderstand HIPAA. HHS never stops to consider that states may decline to report to NICS about persons who they do not believe meet the statutory definition.

HHS wants to make an end run around state entities that have been designated to report to NICS. Our comments reminded HHS that, under our federal system, it is for the states — not an unelected federal bureaucrat — to designate who reports to NICS. We also explained that its PR would make it much harder to get erroneous information removed from NICS. Finally, our comments criticized HHS for usurping the role of the Department of Justice, by authorizing health care providers to submit even more private medical information than NICS requests.



Drake v. Jerejian
Amicus brief challenging New Jersey’s Concealed Carry Laws
(February 12, 2014)


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.

Today, our firm 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.

Second, New Jersey’s ban on carrying a firearm rests upon the premise that firearms are a privilege granted by the state rather than an inherent, individual right, as held by the U.S. Supreme Court in the 2010 McDonald decision.

Third, the right to keep and bear arms belongs to “all Americans,” as the U.S. Supreme Court recognized in the 2008 Heller decision. That is because, as the Second Amendment states, the right is “necessary to the security of a free State.” New Jersey, on the other hand, grants the privilege only to current and former government law enforcement, purportedly to ensure a “safe” State.

We hope that the Supreme Court will grant the petition for certiorari in this case in order to restore the Second Amendment right to carry a firearm for self defense.

Our brief was filed on behalf of Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.



United States v. James Alvin Castleman
Amicus Brief in the United States Supreme Court (December 23, 2013)


On December 23, 2013, our firm 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

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.

The government argued that, if the statute was read the way it was actually written, then few if any state statutes would meet the federal definition at the time it was passed, since few require violent physical force as an element, and thus the MCDV ban would be a “practical nullity.” But, as our brief points out, it is not up to ATF or the courts to give the statute a different meaning to language chosen by Congress in order to give a statute wider effect. Moreover, after the Lautenberg Amendment was enacted, states were free to amend their laws, or enact new ones, in order to be covered by the federal law.

Finally, our brief argued that if the Court adopted the government’s broad understanding of what constitutes a misdemeanor crime of domestic violence, serious constitutional implications would arise with respect to the Second Amendment and defense of “hearth and home.”

Our firm’s brief was filed on behalf of Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, and Conservative Legal Defense and Education Fund.

U.S. Supreme Court Docket: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-1371.htm



Bruce James Abramski v. United States Amicus Brief in the United States Supreme Court  (on the Merits) (December 3, 2013)

On December 3, 2013, our firm filed 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.

Our brief pointed out that federal law never uses the term “actual buyer” — whatever that may mean. Rather, the statute refers to the “transferee,” the person physically present, standing in the gun store. Federal law only prohibits transferring a gun to someone who you know or have reason to believe is not eligible to possess it. Federal law does not, as ATF argues, prohibit an eligible person from buying a gun simply because he may later transfer it to another person eligible to possess it.

ATF claims that the FFL is “required” by law to keep information about the “actual buyer,” but the law only requires a record of the “transferee.” The government has claimed that, unless the Supreme Court adopts its position, the law will be easily avoided. But, as our brief points out, is not up to ATF or the Supreme Court to write, or rewrite, the statute.

Finally, our brief argues that ATF’s definition of a “straw purchase” is arbitrary and unworkable, since it exempts “gifts” bought with the transferee’s money, but not purchases made with the alleged “actual buyer’s” money.

Our brief has already been attacked in an amicus curiae brief filed by the City of New York, which criticizes our brief for arguing to the Court that the straw purchase doctrine “encroaches on Congress’ legislative powers,” claiming that our brief “misrepresents that it is illegal for any person to buy a firearm on behalf of another person eligible to own it.” Predictably, the virulently anti-gun City of New York accepts the anti-gun position of ATF as deciding the issue of what is legal and what is not, disregarding the actual statutory language.

Our brief on the merits was actually the second brief that we filed in the U.S. Supreme Court in this case. On July 25, 2013, we filed an amicus brief in support of the Supreme Court granting certiorari in this case — one of only two filed in support of granting Mr. Abramski’s petition.

Our firm’s amicus curiae brief was filed on behalf of Congressman Steve Stockman, Former ATF Assistant Director Robert E. Sanders, Gun Owners Foundation, U.S. Justice Foundation, Gun Owners of America, Inc., Institute on the Constitution, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, DownsizeDC Foundation, Downsize DC.org, Policy Analysis Center, Oregon Firearms Federation, and Virginia Citizens Defense League.

U.S. Supreme Court Docket: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-1493.htm

SCOTUSBlog: http://www.scotusblog.com/case-files/cases/abramski-v-united-states/?wpmp_switcher=desktop



Rocky Mountain Gun Owners et al. v. John C. Hickenlooper, Complaint in the District Court, City and County of Denver, Colorado (September 4, 2013)

Today a complaint was filed in the case of Rocky Mountain Gun Owners, et al. v. John C. Hickenlooper in the District Court, City and County of Denver, Colorado on behalf of plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S,LLC, d/b/a Alpine Arms. This case is a constitutional challenge of two Colorado firearm laws, HB 1229 and HB 1224. Our firm is serving as of counsel to the plaintiffs.

With certain limited exceptions, HB 1229 makes unlawful the transfer of a firearm between private individuals unless the Colorado Bureau of Investigation (“CBI”) first conducts a background check and confirms that the transferee is eligible to possess the firearm. HB 1229 does not, however, allow either a willing transferor nor a willing transferee of a covered firearm transfer to obtain a CBI background check. Rather, it requires the transferor to locate—and persuade—a federally-licensed firearms dealer to obtain the CBI background check, complying with all federal and state laws, and using the same procedure as if the proposed transfer were of a firearm sold out of the FFL’s own firearms inventory. HB 1224 bans outright all ammunition magazines sold or acquired after July 1, 2013 that hold more than 15 rounds of ammunition. HB 1224 also bans most other magazines of any size because it prohibits smaller magazines that are “designed to be readily converted” to hold more than 15 rounds of ammunition, and imposes a condition of continuous possession that makes it impossible to lawfully possess a magazine of any capacity. HB 1224, also, effectively operates as a ban on having a functional, operating unit for most handguns and a very large fraction of rifles.

Our complaint alleges that HB 1229 violates the due process and equal protection provisions of Article II, Section 25 of the Colorado Constitution. Further HB 1229 is an unconstitutional delegation of executive authority and legislative power. Finally HB 1229 and HB 1224 violate the right to keep and bear arms secured by Article II, Section 13 of the Colorado Constitution.


National Rifle Association, et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al., Amicus Brief for The Lincoln Institute for Research and Education, et al. in the United States Supreme Court (August 30, 2013)

Today our firm filed an amicus brief in the case of National Rifle Association, et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al. in the United States Supreme Court in support of petitioners.

Our brief was filed on behalf of The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Institute on the Constitution, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Policy Analysis Center, and Gun Owners of California.


Raymond Woollard, et al. v. Denis Gallagher, et al., Amicus Brief for Gun Owners Foundation, et al. in the United States Supreme Court (August 12, 2013)

Today our firm filed an amicus brief in the case of Raymond Woollard, et al. v. Denis Gallagher, et al. in the United States Supreme Court in support of petitioners.

Our brief was filed on behalf of Gun Owners Foundation, Citizens United, U.S. Justice Foundation, Gun Owners of America, Inc., Institute on the Constitution, The Lincoln Institute, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, Policy Analysis Center, Downsize DC Foundation, DownsizeDC.org, Virginia Gun Owners Coalition, and Gun Owners of California.


Rosemond v. United States, Amicus Brief for Gun Owners Foundation, et al. in the United States Supreme Court (August 9, 2013)

Today our firm filed an amicus brief in the case of Justus Cornelius Rosemond v. United States in the United States Supreme Court in support of petitioner. Our amicus brief urges the Supreme Court to examine the question raised in this case in light of the recently decided case of Alleyne v. United States' new interpretation of Section 924(c)(1)(A), defining three firearms offenses instead of only one. If the Government’s theory of aiding and abetting is affirmed in this case, it will unwisely and unnecessarily expand prosecutorial discretion in the administration of the mandatory minimum sentence structure of Section 924(c)(1)(A) and undermine the role of the jury envisioned in Alleyne.

Our brief was filed on behalf of Gun Owners Foundation, U.S. Justice Foundation, Gun Owners of America, Inc., Conservative Legal Defense and Education Fund, and Policy Analysis Center.


Abramski v. United States, Amicus Brief for Congressman Steve Stockman, et al. in the United States Supreme Court (July 25, 2013)

Today our firm filed an amicus brief in the case of Bruce James Abramski, Jr. v. United States in the United States Supreme Court in support of petitioner. Our amicus brief argues that the petition should be granted because it raises compelling concerns about the administration of the national instant background check system that have not been, but should be, settled by the Supreme Court. The ATF “straw purchase” doctrine upon which Abramski’s conviction rests conflicts with both statute and regulation. The ATF Form 4473’s question 11.a. and instructions are misleading and confusing, creating a trap for the unwary. The Form 4473 distinction between a third party gift and a third party purchase is arbitrary and capricious. Finally, Congress has not enacted any law authorizing the prevention of straw purchases of firearms from licensed firearm dealers and has thus far declined to enact the ATF “straw purchase” doctrine into law.

Our brief was filed on behalf of Congressman Steve Stockman, Former ATF Assistant Director Robert E. Sanders, Gun Owners Foundation, U.S. Justice Foundation, Gun Owners of America, Inc., Institute on the Constitution, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, DownsizeDC.org, Downsize DC Foundation, Policy Analysis Center, Oregon Firearms Federation, Virginia Citizens Defense League, and Wisconsin Gun Owners.


United States v. Reese, Brief of Appellees in the U.S. Court of Appeals for the Tenth Circuit (July 11, 2013)

On July 11, 2013, our firm filed an appellees' brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of three individuals in a family-owned Federal Firearms Licensee (FFL) located in Deming, New Mexico.

Four members of the Reese family had been acquitted by the jury of all but four counts of a 30-count indictment. Then, nearly four months after the trial was over, the Government filed a sealed ex parte motion revealing to the court that, after trial, the government lawyers who tried the case were made aware of evidence that was potentially favorable to the defendants to impeach the credibility of one of the government's key witnesses. By this motion, the Government asked for a ruling, without an adversarial hearing, that it had not violated its constitutional duty to disclose potential impeachment evidence. The trial judge refused, ordering the Government to turn the evidence over to the defense.

After two hearings, the court discovered that the impeachment evidence had been in the hands of the Government for over a decade and that the government attorneys suppressed evidence from which the jury could infer that the government witness lied. After finding that the unimpeached testimony of government agent was material, the trial judge ordered a new trial on the four counts of conviction. The government appealed the order granting a new trial.

Having exhausted their funds, the Reeses contacted the U.S. Justice Foundation and Gun Owners of America for assistance on their appeal, who engaged our firm to handle the appeal. Our appellees' brief documents how the Federal Government denied the Reeses their liberty, without due process of law, and in violation of their right to confront witnesses against them.


Gun Owners of America, Inc. and Gun Owners Foundation Comments to ATF on “Requests to Exempt Certain Projectiles from Regulation as 'Armor Piercing' Ammunition" (December 31, 2012)

Today our firm filed comments with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") on behalf of Gun Owners of America, Inc. and Gun Owners Foundation pursuant to the ATF request for comments on the use of the “sporting purposes” exemption for “certain projectiles from regulation as ‘armor piercing’ ammunition.”

These comments were filed because "GOA and GOF believe that ATF’s past interpretations of Section 921(a)(17) have been erroneous, and are contrary to the clear intent of Congress. Thus, ATF’s understanding of what constitutes AP ammunition should be revised."

The comments expound upon the following points:
ATF Would Add Its Own Language to the Statute, in an Effort to Further Restrict Armor Piercing Ammunition.
ATF Has Misinterpreted the Language of Section 921(a)(17) in an Overly-
Restrictive Manner.
Many Typical Rifle Calibers Are Capable of Defeating the Soft Body Armor,
Regardless of Whether They Are Armor Piercing.


Gun Owners of America, Inc. and Gun Owners Foundation Comments on Administrative Disposition of Weapons Amendment Act of 2012 (October 9, 2012)

Today our firm filed comments to the Council of the District of Columbia Committee on the Judiciary on behalf of Gun Owners of America, Inc. and Gun Owners Foundation on the proposed "Administrative Disposition of Weapons Amendment Act of 2012."


Raymond Woollard, et al. v. Denis Gallagher, et al., Amicus Brief for Gun Owners Foundation, et al. in the United States Court of Appeals for the Fourth Circuit (August 6, 2008)

Today our firm filed an amicus brief in the case of Raymond Woollard, et al. v. Denis Gallagher, et al. in the United States Court of Appeals for the Fourth Circuit in support of plaintiffs-appellees and affirmance.

This case involves a challenge to the constitutionality of the State of Maryland’s handgun permit statute and regulatory scheme. Maryland requires an applicant for a license to carry a handgun to demonstrate that he has “good and substantial reason” to carry a handgun. Plaintiff Woollard previously had been granted a handgun carry permit. Unable to produce evidence of a current threat, Woollard’s request for a renewal of the permit was denied. Woollard and an association of gun owners, Second Amendment Foundation, challenged the Maryland license requirement, arguing that the “good and substantial reason” requirement violates the Second Amendment right to “keep and bear arms.”

The district court found “Maryland’s requirement ... is insufficiently tailored to the State’s interest in public safety and crime prevention” and “impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment.” Our amicus brief urges the court of appeals to affirm the decision of the district court to overturn the Maryland statutory scheme but without reference to any judicial balancing or standard of review and based on the text of the Second Amendment.


Our amicus brief argues that Maryland provides no analysis of the text of the Second Amendment and misrepresents the applicability of English historical antecedents. Further, Maryland's argument rests on a misleading overview of the Supreme Court's decision in Heller. Our brief shows that the Supreme Court decisions in Heller and McDonald preclude lower courts from using judicial balancing. Heller actually requires that reviewing courts identify and apply the Second Amendment with the scope intended by the founders.

Our amicus brief was filed on behalf of:
Gun Owners Foundation (http://www.gunowners.com/)
Gun Owners of America, Inc. (www.gunowners.org)
Virginia Gun Owners Coalition (http://www.vgoc.org/)
Virginia Citizens Defense League, Inc. (http://www.vcdl.org/)
U.S. Justice Foundation (http://usjf.net/)
Conservative Legal Defense and Education Fund (www.cldef.org)


Delroy Fischer v. United States of America, Reply Brief for Petitioner in the U.S. Supreme Court (March 8, 2012)

Today our firm filed reply brief for petitioner in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence ("MCDV"), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our reply brief makes the following arguments. First, the government admits that the court below relied solely on the factual record to determine that the state statute has the use of physical force as an element. Next, the Fischer decision is not consistent with the "modified categorical approach." Further, the government would create a federal standard to determine the elements of the state statute. The government has also erroneously assumed that "physical force" as stated in the federal statute includes "subtle and indirect force," and the government erroneously shifts to Fischer the burden to prove that use of physical force is not an element of the state statute. Finally, the government has provided additional reasons to grant Fischer's petition.

On November 21, 2011 our firm filed the petition for writ of certiorari in this case.


Delroy Fischer v. United States of America, Petition for Writ of Certiorari in the U.S. Supreme Court (November 21, 2011)

Today our firm filed a petition for writ of certiorari in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence ("MCDV"), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our petition for writ of certiorari argues that the Fischer decision conflicts with the decisions of six other United States Courts of Appeals. The lower courts confused factual conduct with the legal element. Neb. Rev. Stat. Section 28-310(1)(a) is not a MCDV. Further, the Fischer decision conflicts with two decisions within the Eighth Circuit, sowing confusion among the circuits. Finally, the Fischer decision conflicts with controlling Supreme Court precedents -- United States v. Hayes and the categorical approach to predicate criminal offenses. This appendix was also filed with the petition for writ of certiorari.

The case was docketed in the U.S. Supreme Court as No. 11-662.
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-662.htm


Delroy Fischer v. United States, Appellant's Petition for Rehearing En Banc in the United States Court of Appeals for the Eighth Circuit (July 15, 2011)

Today our firm filed appellant's petition for rehearing en banc in the case of Delroy Fischer v. United States of America in the United States Court of Appeals for the Eighth Circuit.

Appellant, Delroy Fischer, was indicted under 18 U.S.C. § 922(g)(9)1 for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Our petition argues that Fischer, and Amerson before it, were wrongly decided and the Fischer panel decision conflicts with two of the Eighth Circuit’s prior opinions and with the U.S. Supreme Court’s decision in United States v. Hayes.

On August 1, 2011 the government filed brief of appellee in response to our petition for rehearing en banc. The United States Court of Appeals for the Eighth Circuit issued an order denying appellant's petition for rehearing en banc on
August 29, 2011 and a mandate on September 12, 2011.


MSSA v. Holder, Amicus Brief for Gun Owners of America, Inc. et al. in the U.S. Court of Appeals for the Ninth Circuit (June 13, 2011)

Today our firm filed an amicus brief for Gun Owners of America, Inc., Gun Owners Foundation, and Virginia Citizens Defense League in the case of Montana Shooting Sports Association, et al. v. Eric H. Holder, Jr. in the U.S. Court of Appeals for the Ninth Circuit in support of reversal. We previously filed an amicus brief in the U.S. District Court for the District of Montana Missoula Division on April 12, 2010.

At issue in the case is whether Montana as a state may permit the intrastate manufacture, sale, and use of firearms without Montanans having to apply for federal firearms licenses.

Our brief argued that the federal licensure statutes are meant to “support ... state and local law enforcement” in enforcing state laws. In fact, Congress specifically prohibited courts from construing federal laws to “occupy the field” of gun control, to the exclusion of state regulation, seeking to allow states maximum flexibility to address their unique set of problems in their own way.

Rather, before striking down a state law, a court must find a “direct and positive” conflict between the state and federal laws so that they “cannot be reconciled or consistently stand together.” This was not done. Instead, the district court below addressed whether Congress had the authority to preempt state law, without addressing whether Congress had even done so.


Skoien v. U.S., Amicus Brief for Gun Owners Foundation et al. in the U.S. Supreme Court (November 15, 2010)

Today our firm filed an amicus brief on behalf of Gun Owners Foundation, Gun Owners of America, Inc., Gun Owners of California, Inc., Virginia Citizens Defense League, and Conservative Legal Defense and Education Fund in the case of Steven Skoien v. United States in the United States Supreme Court in support of petitioner Skoien.


Nordyke v. King, Amicus Brief Filed in Support of Appellants, U.S. Court of Appeals for the Ninth Circuit (August 18, 2010)

On August 18, 2010, in the U.S. Court of Appeals for the Ninth Circuit, our firm filed an amicus curiae brief filed in support of the challenge by appellants to portions of the county code of Alameda County, California. The challenged provisions ban possession of firearms on county property.

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.

Our 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.

The 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.

Our amicus brief in Nordyke v. King, U.S. Court of Appeals for the Ninth Circuit, No. 07-15763, was filed on behalf of:
Gun Owners of California, Inc. (www.gunownersca.com)
Gun Owners of America, Inc. (www.gunowners.org)
Gun Owners Foundation (www.gunowners.com)


Heller II, Amicus Brief Filed in Support of Appellants, U.S. Court of Appeals for the District of Columbia (July 30, 2010)

On July 30, 2010, in the U.S. Court of Appeals, D.C. Circuit, our firm filed the only amicus curiae brief filed in support of the challenge by appellant Dick Heller and others to portions of the D.C. Code that (i) require registration of all firearms, (ii) prohibit registration of so-called “assault weapons” and (iii) prohibit possession of so-called “high capacity” magazines.

Our brief argues that the District Court erred when it upheld the District’s laws employing “intermediate scrutiny” – a judicially created standard of review that permits laws that are “reasonably related to an important government interest.” Our brief demonstrates that the Supreme Court has rejected such “interest balancing” standards of review in both the Heller I and McDonald cases. Instead, once a court determines that a person is part of “the people” and that the weapon is one of the “arms” protected by the Second Amendment, the amendment provides its own standard of review — “shall not be infringed.”

The brief then explained why the District has no jurisdiction to require a citizen to obtain a permit from the city to possess a firearm protected by the Second Amendment, and why the “assault weapons” and “high capacity magazines” which the District of Columbia seeks to ban are protected “arms under the Second Amendment, as provided in United States v. Miller (1939) and the Heller I decision.

Our amicus brief in Heller v. District of Columbia, U.S. Court of Appeals for the D.C. Circuit, No. 10-7036, was filed on behalf of:
Gun Owners of America, Inc.
Gun Owners Foundation
Virginia Citizens Defense League
Maryland Shall Issue, Inc.
Gun Owners of California, Inc.
Lincoln Institute for Research and Education
Conservative Legal Defense and Education Fund



Herb Titus Presents Oral Argument to U.S. District Court, Montana
in Montana Shooting Sports Association v. Holder (July 15, 2010)

A number of states have enacted firearms freedom act statutes seeking to regulate intra-state sales of firearms, over which the federal government has no authority.

The Bureau of Alcohol, Tobacco and Firearms has threatened to go after any party which manufactures or sells a firearm without complying with the federal licensing scheme. http://firearmsfreedomact.com/

The first state firearms freedom law that has gone to federal court is Montana, and, on behalf of Gun Owners of America, Inc., we were invited to be among the three counsel to argue in district court on behalf of the plaintiff Montana Shooting Sports Association ("MSSA").

The Obama administration claims that, under the commerce clause, the federal government has plenary power to regulate the licensing of the manufacture and sale of firearms to the total exclusion of the states. Herb Titus argued that Congress has actually exercised less power than claimed, keeping the door open for states to develop their own firearms policies, and therefore urged the court to resolve the matter short of addressing the constitutional questions. Additionally, we claimed the Second Amendment, itself, precludes the licensing of firearms just as the First Amendment precludes the licensing of the press.

Quentin Rhodes, Esquire of Sullivan, Tabaracci & Rhodes, P.C. represents MSSA.

Gary Marbut, President of MSSA, has been the architect of this strategy to assert the right of the states to regulate intrastate sales.


MSSA v. Holder, Amicus Brief for Gun Owners Foundation in the U.S. District Court for the District of Montana Missoula Division (April 12, 2010)

Today our firm filed an amicus brief for Gun Owners Foundation, Gun Owners of America, Inc., and Virginia Citizens Defense League in the case of Montana Shooting Sports Association, Inc., et al. v. Eric H. Holder, Jr. in the U.S. District Court for the District of Montana Missoula Division.


U.S. v. Steven M. Skoien, Amicus Brief for Gun Owners Foundation and Gun Owners of America, Inc. in the U.S. Court of Appeals for the Seventh Circuit (April 2, 2010)

Today our firm filed an amicus brief for Gun Owners Foundation and Gun Owners of America, Inc. in the case of U.S. v. Skoien, in the United States Court of Appeals for the Seventh Circuit.

This document compares quotes from the GOF amicus brief with quotes from the NRA amicus brief, which were both filed in the Skoien case -- http://www.gunowners.com/gof-vs-nra-quotes.pdf.


Otis McDonald v. City of Chicago, Amicus Brief in Support of Petitioners in the U.S. Supreme Court (November 23, 2009)

On November 23, 2009, our firm filed an amicus curiae brief in the U.S. Supreme Court in support of petitioners' challenge to an ordinance banning handguns in Chicago. The amicus brief argues that the Chicago handgun ban unconstitutionally abridges petitioners’ right to keep and bear arms, a privilege or immunity belonging to them as United States citizens protected by the Fourteenth Amendment. It also explains that no wholesale change in the Supreme Court's Fourteenth Amendment jurisprudence is required to rule that the Chicago ordinance unconstitutionally abridges petitioners’ right to keep and bear arms. Further, it asserts that incorporation of the right to keep and bear arms into the Due Process Clause would result in weak and potentially transitory protection of that right.

Our amicus brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Maryland Shall Issue, Inc., DownsizeDC.org, Conservative Legal Defense and Education Fund, The Lincoln Institute for Research and Education, U.S. Border Control, and U.S. Border Control Foundation.


David R. Olofson — Petition for Certiorari filed in U.S. Supreme Court (August 28, 2009)

On August 28, 2009, our firm filed a Petition for Certiorari with the U.S. Supreme Court, on behalf of Army Reservist David Olofson, urging the Court to grant Certiorari to review the Seventh Circuit decision affirming Olofson's conviction. The Petition was docketed on August 31, 2009. Amicus briefs are due by September 30, 2009.

Olofson was sentenced to prison for 30 months for transferring a "machine gun" — which really was a lawful-to-own, semi-automatic AR-15 rifle which occasionally manifested a "hammer-follow" malfunction, resulting in short bursts followed by jamming.

The prosecutor tried the case on the theory that a firearm's malfunction is no defense, and any weapon which fires more than one round with a single pull of the trigger is a "machinegun," under the National Firearms Act “no matter what the cause.”

This case is well known in the "black-rifle" community, and has been featured on several occasions by Lou Dobbs.
http://www.youtube.com/watch?v=rB237rfvHys — January 22, 2009.
http://www.youtube.com/watch?v=mJxbc6LOUgY — February 18, 2009.

At the heart of Olofson's Petition is the claim that his conviction was obtained and affirmed only by the adoption of a definition of "machine gun" directly contrary to the Supreme Court's definition of that term in Staples v. United States, 511 U.S. 600 (1994).

This is an important case, as it puts at risk every owner of a semi-automatic rifle, shotgun or handgun of being convicted of a felony for owning a malfunctioning weapon that "doubles" or otherwise exhibits multiple-round fire.

Gun Owners of America, Inc. and Gun Owners Foundation have funded the appellate work for this case.

The Appendix to the Petition for Certiorari appears here.

On September 30, 2009, the Montana Shooting Sports Association and the Virginia Citizens Defense League filed an amicus brief supporting our petition for certiorari. This brief explains the many ways in which conventional firearms can malfunction, resulting in multiple round fire, and the danger to gun owners everywhere of allowing Olofson's conviction to stand. This instructive amicus brief was authored by David T. Hardy and E. Stewart Rhodes.


McDonald v. City of Chicago, NRA v. City of Chicago, Amicus Brief in Support of Petitions for a Writ of Certiorari in the U.S. Supreme Court (July 6, 2009)

On July 6, 2009, our firm filed an amicus curiae brief in the U.S. Supreme Court on behalf of Gun Owners of America, Inc. and Gun Owners Foundation in support of petitioners' request for a writ of certiorari. These cases involve challenges to City of Chicago and Village of Oak Park bans on handguns. At issue is whether the Fourteenth Amendment applies the Second Amendment right to keep and bear arms against the States. The amicus brief urges that the petitions present an important question of federal law that has not been, but should be, settled by the Supreme Court. It also argues that the Chicago and Oak Park handgun bans abridge one of the privileges and immunities of citizens of the United States — the right to keep and bear arms — in violation of the Fourteenth Amendment to the U.S. Constitution.


Olofson Case Covered by World Net Daily (March 2, 2009)

World Net Daily ran a story entitled "Appeals Decision Awaited in Broken Gun Case: Man serving 30 months for loaning rifle that malfunctioned" on the Olofson case, which our firm is handling.


Olofson Case Covered on Lou Dobbs Tonight TV Show (Feburary 18, 2009)

Herb Titus was a guest on the Lou Dobbs Tonight television show today, to discuss the Olofson case, which our firm is handling. He appeared with Len Savage who had been a witness for David Olofson at trial.


Olofson Case — Oral Argument (January 22, 2009)

On January 22, 2009, Herb Titus presented oral argument before the U.S. Court of Appeals for the Seventh Circuit in support of David Olofson's appeal from having been wrongfully convicted of transfering a machinegun.  At the heart of the Olofson appeal, Titus contended, is that the Government pressed a wrongful definition of a machinegun in order to secure Olofson's conviction.  According to the government's definition, Olofson's malfunctioning semiautomatic rifle functioned as a machinegun because it fired more than one shot at the single pull of a trigger, even though it jammed before the trigger was released or the ammunition in the magazine was exhausted.  The government's position, Titus argued, is contrary to fact, contrary to law, and in conflict with Supreme Court Seventh Circuit precedent.  Indeed, according to the briefs filed by the firm, Olofson's prosecutor adopted a definition of a machinegun inconsistent with prior ATF rulings and guidelines.

Lou Dobbs covered oral argument in the case.  The CNN video can be viewed at http://youtu.be/rB237rfvHys


Akins v. United States, Amicus Brief for Gun Owners Foundation and Gun Owners of America, Inc. in the U.S. Court of Appeals for the Eleventh Circuit, Another Brief Contesting ATF’s Definition of a “Machinegun” (November 26, 2008)

On November 26, 2008, the firm filed an amicus brief on behalf of Gun Owners Foundation (GOF) and Gun Owners of America (GOA) in the United States Court of Appeals for the Eleventh Circuit in support of Bill Akins.  Akins is the inventor of the Akins Accelerator — a patented replacement stock of a semiautomatic firearm that through controlled “bump firing” increases the rate of fire, after an initial trigger pull, by multiple functions of the trigger controlled by the shooter’s well-placed trigger finger.

In a 2006 ruling, the Bureau of Alcohol, Tobacco, and Firearms (ATF) concluded that Mr. Akins’ accelerator was a machinegun, because it fired repeatedly upon only one “pull” of the trigger and, thus, converted a semiautomatic rifle into an automatic one.  Prior to the 2006 ruling, however, ATF twice had notified Mr. Akins that, after testing the accelerator, ATF determined that it was not a machinegun; rather the accelerator simply enabled a semiautomatic rifle to shoot at an increased rate of fire, not with a single pull of the trigger, but by a series of 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 order to reach the opposite conclusion in 2006, ATF changed its interpretation of the statutory definition of a machinegun, construing “single function of the trigger” to mean the same thing as “single pull of the trigger.”  Since the ATF accelerator required only one “pull” of the trigger, in order for a semiautomatic firearm to shoot more than one shot, the ATF dismissed as irrelevant the fact that the firearm would not continue to shoot repeatedly unless the trigger continued to function by pushing against the shooter’s well-placed trigger finger.

The GOF/GOA amicus brief emphasized that the 2006 ruling was made in flagrant disregard of the plain language of the statutory definition of a machinegun — and challenged ATF’s claim that it acted within its authority to protect the “public safety” from “dangerous weapons,” noting that Congress had enacted no statutory provision prohibiting “dangerous weapons,” and that, in the Firearms Owners Protection Act of 1986, Congress had amended ATF’s powers to enact rules and regulations “only ... as are necessary to carry out the provisions of this chapter ....”


U.S. v. David R. Olofson, Reply Brief in Support of Appellant Olofson in the U.S. Court of Appeals for the Seventh Circuit (Docket No. 08-2294) (November 7, 2008)

We filed our reply brief, responding to the government’s opposition which maintained that a malfunctioning AR-15 rifle is a machinegun.


U.S. v. Hayes, Amicus Brief for Gun Owners Foundation in the U.S. Supreme Court (September 26, 2008)

On September 26, 2008, we filed on behalf of Gun Owners Foundation an amicus brief in United States v. Hayes.  The GOF brief urged the Supreme Court to affirm a Fourth Circuit court of appeals ruling that, as a matter of statutory interpretation, an individual does not lose the right to own a gun unless the prosecutor in the misdemeanor case  proves beyond a reasonable doubt that the misdemeanor event was, in fact, a domestic one.

Prior to the Fourth Circuit’s decision in Hayes, all the other courts of appeals (which had addressed the question) had decided the case the other way:  that the domestic aspect of the misdemeanor need not be proved in court, but need only appear somewhere, such as on a police report.  Thus, for a dozen years, hundreds, if not thousands, of people have been deprived of their right to purchase or possess a firearm, not on the basis of a proven fact, but on the basis of an uncontested accusation.

The statute being contested was enacted in 1996 as part of a omnibus appropriations bill – the now infamous Lautenberg Amendment, named after its sponsor, New Jersey Senator Frank Lautenberg (D-NJ).   This stealth provision prohibited, for the first time in the history of federal firearms regulation, a person from possessing a firearm if he had been convicted of a  misdemeanor, specifically a “misdemeanor crime of domestic violence.”

One of the defining differences between felonies and misdemeanors is that felons lose civil liberties (e.g., voting, serving on a jury, holding public office, gun ownership), while those who commit misdemeanors do not.  The Lautenberg amendment is a notable exception to this rule.

The GOF brief charges that, by its disregard for the language of the statute and its unjustified reliance upon Senator Lautenberg’s personal opinions, the Government unlawfully jeopardizes firearm ownership, by encouraging inaccurate and incomplete reporting of information on the National Instant Criminal Background Check System, and by creating an impermissible risk of self-incrimination on ATF Form 4473, completion of which is required of all purchasers of firearms from a federally licensed firearms dealer.


U.S. v. David R. Olofson, Brief in Support of Appellant Olofson in the U.S. Court of Appeals for the Seventh Circuit (Docket No. 08-2294) (August 25, 2008)

We filed a brief on behalf of David R. Olfoson, who was convicted and is serving a sentence for “transferring a machinegun,” which actually was a legal but malfunctioning AR-15 rifle.


U.S. v. Ramos/Compean Amicus Brief in Support of Petition for Rehearing in the U.S. Court of Appeals for the Fifth Circuit (August 18, 2008)

We filed an amicus curiae brief in the U.S. Court of Appeals for the Fifth Circuit in support of two former Border Patrol agents’ Petitions for Rehearing. This brief emphasized areas where the Fifth Circuit panel’s decision was inconsistent with the law as set forth in our earlier brief filed with the court on May 25, 2007.

Our amicus brief was filed on behalf of Congressmen Walter B. Jones (R-NC), Virgil H. Goode, Jr. (R-VA), and Ted Poe (R-TX), Gun Owners Foundation, U.S. Border Control Foundation, U.S. Border Control, and Conservative Legal Defense and Education Fund.


District of Columbia, et. al., v. Dick Anthony Heller, Amicus Brief for Gun Owners of America, Inc., et. al. in the U.S. Supreme Court (February 11, 2008)

Today, our firm 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 brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Maryland Shall Issue, Inc., Virginia Citizens Defense League, Gun Owners of California, Inc., Lincoln Institute for Research and Education, and Conservative Legal Defense and Education Fund.

The issue in the 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. We argued that, 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 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.


State of Wyoming v. United States, Amicus Brief for Gun Owners Foundation in the U.S. Court of Appeals for the Tenth Circuit, 18 U.S.C. 822(t)(3) (August 21, 2007)

Today we filed a Brief Amicus Curiae for Gun Owners Foundation 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.

Our 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).


BATF Firearm Civil Forfeiture Procedures and Policies: An Attorney's Guide (July 4, 2007)

On behalf of Gun Owners Foundation, our firm authored “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.
This manual has been revised as of January 30, 2009.


USA v. Ignacio Ramos and Jose Alonso Compean, Amicus Brief for Congressman Walter Jones, et al., 18 U.S.C. section 924(c) (May 25, 2007)

Today we 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,” under 18 U.S.C. section 924(c), 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).

Thus, the amicus brief asks the court to overturn the convictions of Ramos and Compean in the U.S. District Court for the Western District of Texas, on the ground that these two Border Patrol agents were each sentenced to 10 years in prison for committing a federal crime which does not exist.

The amicus brief was filed on behalf of Congressman Walter B. Jones, Congressman Virgil H. Goode, Jr., Congressman Ted Poe, Gun Owners Foundation, U.S. Border Control, U.S. Border Control Foundation, and Conservative Legal Defense and Education Fund.



Watson v. United States, Amicus Brief in the U.S. Supreme Court, Strict Construction of Federal Criminal Laws (May 4, 2007)

On behalf of Gun Owners Foundation and the Conservative Legal Defense and Education Fund, we filed an amicus brief in the U.S. Supreme Court in the case of Watson v. United States.  This brief asks the Court to overturn the decision of the U.S. Court of Appeals for the Fifth Circuit, and to re-establish the common law rule of strict construction of criminal statutes.  In this case, an undercover agent sought to buy drugs from Watson, and offered a firearm as part of the purchase price.  The federal government indicted Watson for not only the drug sale, but also for the “use” of a firearm in connection with a federal drug trafficking crime, which would greatly increase the sentence if convicted.  Clearly, in the normal sense of the word, receiving a gun is not “using” a firearm in connection with a drug trafficking crime, but the Fifth Circuit interpreted the word “use” broadly to encompass receipt.  Had the rule of strict construction been applied to this case, and “use” interpreted in its normal sense, Mr. Watson would not be faced with a mandatory additional minimum prison sentence of five years under 18 U.S.C. section 924(c).  Our amicus brief also asks the Court to reject the modern “rule of lenity” that has proved to be no substitute for strict construction.  Strict construction of federal criminal law is necessary to preserve constitutional separation of powers, as well as principles of federalism.  Our amicus brief illustrates how allowing police and prosecutors to go beyond the words of the statute to define a crime opens up opportunities for abuse.

The firm's amicus brief in Watson v. United States was discussed by former Assistant Secretary of the U.S. Department of the Treasury Paul Craig Roberts, in his excellent book The Tyranny of Good Intentions:  How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice , published March 25, 2008, by Three Rivers Press. 


The Right of the People of Maryland to Keep and Bear Arms (February 27, 2007)

Maryland Shall Issue, Inc. commissioned our firm to prepare an analysis of a 13-year-old Opinion of the Maryland Attorney General currently being used in the Maryland General Assembly to support SB 43, the so-called "assault weapons" ban.  Our analysis -- "The Right of the People of Maryland to Keep and Bear Arms:  A Refutation of a 1994 Opinion of the Maryland Attorney General" -- was presented to the Maryland General Assembly at a hearing on February 27, 2007.  The views presented in our paper are consistent with the subsequently-issued opinion of the U.S. Court of Appeals for the District of Columbia in the case of Parker v. District of Columbia, issued March 9, 2007.


United States v. Stanko, Amicus Brief in the United States Court of Appeals for the Eighth Circuit for Gun Owners Foundation (November 2, 2006)

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, attorneys for 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.



State of Wyoming v. United States, Amicus Curiae Brief in the U.S. District Court, Against BATF and For Wyoming (August 18, 2006)

On August 18, 2006, our firm filed an amicus curiae brief for Gun Owners Foundation 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. 

The brief was submitted in opposition to a BATF ruling that a Wyoming concealed carry permit based on a Montana criminal background check is not sufficient to allow an FFL dealer to transfer a firearm without obtaining a current federal National Instant Criminal Background Check.  BATF objected to a provision in Wyoming law that permits an expungement of a misdemeanor crime of domestic violence so that it cannot be reviewed by the Wyoming Attorney General in conducting a criminal background check before issuing a concealed carry permit, while allowing the record to be maintained for use for other purposes. 

At stake in this case is the federalist principle that the states, not the federal government, have the primary responsibility to govern firearms use and ownership.



Paper Demonstrates Threat to Second Amendment Rights Posed by Recent Supreme Court Reliance on International Law (July 2006)

In July, 2006, our firm prepared a paper entitled “Assessing the Threat to Second Amendment Rights Posed by the U.S. Supreme Court's Use of Foreign Law In Constitutional Interpretation”  which was published by Gun Owners Foundation.

The paper critically analyzes two recent Supreme Court cases (Roper v. Simmons, and Lawrence v. Texas) in which the Court has relied on international law to sustain constitutional challenges.  In Roper, the Court overturned a Missouri law permitting capital punishment for 16 and 17 year olds, and in Lawrence, the Court overturned a Texas law prohibiting certain homosexual acts primarily because of foreign authorities.  Additionally, the paper reviews the pros and cons of relying on such foreign sources in other areas.  Recently, the United Nations has been pursuing a goal of eliminating all private ownership of firearms world-wide.

If the Court continues to base its constitutional decisions on foreign law, the American people may find their Second Amendment right to keep and bear arms seriously undermined because of trends in countries which have had historic hostility to private firearms ownership and because of the U.N.’s penchant to restrict firearms possession and use to government officials.


Memorandum for the President: Presidential Powers To Use the U.S. Armed Forces To Control Potential Civilian Disturbances (May 1, 1999)

This memorandum is fictional but accurately depicts the broad powers enjoyed by presidents to utilize U.S. military forces to address domestic disturbances.


Sandidge v. United States, Amicus Brief for The Center for Judicial Studies and Gun Owners Foundation in the District of Columbia Court of Appeals (1986)

We filed an amicus brief on behalf of The Center for Judicial Studies and Gun Owners Foundation in this Second Amendment case. The District of Columbia Court of Appeals decision was issued on February 11, 1987.

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