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)
Fifth Amendment (Due Process, Equal Protection Component)
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.)
On December 22, 2010, our firm filed Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for In Camera Review and Limited Discovery in the United States District Court for the District of Columbia on behalf of Gold Anti-Trust Action Committee, Inc. in this Freedom of Information Act lawsuit arising from requests for records beginning in 2007 from the Board of Governors of the Federal Reserve System relating to “gold swaps.”
Today our firm filed an amicus brief on behalf of Gun Owners Foundation, Gun Owners of America, Inc., and Conservative Legal Defense and Education Fund in the case of Carol Ann Bond v. United States in the United States Supreme Court in support of petitioner Bond.
Today our firm filed an amicus brief on behalf of U.S. Border Control, U.S. Border Control Foundation, The Lincoln Institute for Research and Education, and Conservative Legal Defense and Education Fund in the case of Muneer Awad v. Paul Ziriax, et al. in the U.S. District Court for the Western District of Oklahoma in opposition to the plaintiff's motion for temporary restraining order and preliminary injunction.
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.
Our brief takes a quite different approach from that taken by other firearms organizations. For example, the attached chart contrasts the positions taken in our brief with the positions taken by the NRA.
Herb Titus Quoted in The National Law Journal Article "Heller II: The Sequel"
October 25, 2010
Herb Titus was quoted in the The National Law Journal article "Heller II: The Sequel" by Mike Scarcella regarding the Heller v. District of Columbia (Heller II) case in the U.S. Court of Appeals for the D.C. Circuit. Our firm filed an amicus brief in this case.
On behalf of Daniel Chapter One ("DCO"), today we filed with the U.S. Court of Appeals for the D.C. Circuit the reply brief of petitioners. The DCO reply brief argues that the FTC brief unjustifiedly disparages DCO and the Feijos' relationship to it in an erroneous effort to assert jurisdiction over a ministry. Further, the FTC brief's claim that DCO's ads created the overall net impression that its products claims were based upon controlled clinical studies is not supported in fact or by law. Finally, the FTC brief is mistaken about DCO's constitutional and Religious Freedom Restoration Act claims.
Documents Filed in Gold Anti-Trust Action Committee, Inc.'s Freedom of Information Act Lawsuit
September 27, 2010
On September 27, 2010, our firm filed the following documents in the United States District Court for the District of Columbia on behalf of Gold Anti-Trust Action Committee, Inc. ("GATA") in this Freedom of Information Act lawsuit arising from requests for records beginning in 2007 from the Board of Governors of the Federal Reserve System relating to “gold swaps”:
The U.S. District Court for the District of Columbia denied the Daniel Chapter One ("DCO") motion to dismiss, denied the government’s motion for a preliminary injunction enjoining defendants from violating the FTC's order, and stayed the case pending resolution of DCO’s appeal before the U.S. Court of Appeals for the D.C. Circuit.
Daniel Chapter One Motion to Dismiss and Opposition to Government's Motion for Preliminary Injunction
On behalf of Daniel Chapter One ("DCO"), today we filed with the U.S. Court of Appeals for the D.C. Circuit the brief of petitioners. The DCO brief argues that the FTC failed to establish jurisdiction over DCO and exceeded its statutory authority by misuse of its "reasonable basis" theory and test. Further, the FTC order is arbitrary and capricious, being the product of a blind adherence to the religion of scientism. Finally, the FTC action and order unconstitutionally abridged DCO's freedom of speech, and the FTC erroneously dismissed DCO's Religious Freedom Restoration Act and First Amendment "speaker autonomy" claims.
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.
Bill Olson was quoted in the CNSNews.com article "Harry Reid Defends Vote to Confirm Kagan on Second Amendment Grounds" by Terence P. Jeffrey regarding his testimony before the Senate Judiciary Committee evaluating Elena Kagan's record on the Second Amendment.
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.
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.
The Rachel Maddow Show picked up on the Huffington Post hit piece about our firm. More thoughtful commentary about Bill Olson's testimony against Elena Kagan 's nomination to serve on the U.S. Supreme Court.
Bill Olson's testimony before the Senate Judiciary Committee evaluates Elena Kagan's record on the Second Amendment.
C-SPAN Coverage of Bill Olson Testimony on Nomination of Elena Kagan
July 1, 2010
Bill Olson will testify at the Kagan Confirmation Hearing on Panel 3 this evening. The hearing begins at 4 p.m. and will conclude sometime later tonight. Coverage is available on C-SPAN at the following link:
Herb Titus was quoted in the NPR article "High Court Extends Gun Owners' Rights Nationwide" regarding the U.S. Supreme Court decision in McDonald v. City of Chicago. Our firm filed an amicus brief in this case.
U.S. Senate Judiciary Committee Confirmation Hearings of Elena Kagan
June 25, 2010
Bill Olson has been invited by the United States Judiciary Committee to testify on the nomination of Elena Kagan as Associate Justice of the U.S. Supreme Court.
The testimony likely will occur late in the day on Thursday, July 1, 2010. The list of witnesses appears on the website of the Senate Judiciary Committee. http://judiciary.senate.gov/
American Bar Association Witnesses Kim Askew, Chair, Standing Committee William J. Kayatta, Jr., First Circuit Representative
Majority Witnesses Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School Justice Fernande "Nan" Duffly, on behalf of the National Association of Women Judges Greg Garre, Partner, Lantham & Watkins, former Solicitor General of the United States Jennifer Gibbins, Executive Director, Prince William Soundkeeper Professor Jack Goldsmith, Professor of Law, Harvard University Marcia Greenberger, Founder and Co-President, National Women's Law Center Jack Gross, plaintiff, Gross v. FBL Financial Services Inc. Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard Law School Kurt White, President, Harvard Law Armed Forces Association
Minority Witnesses Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation Capt. Pete Hegseth, Army National Guard Commissioner Peter Kirsanow, Benesch Law Firm David Kopel, Esq., Research Director, Independence Institute Colonel Thomas N. Moe, United States Air Force (ret.) David Norcross, Esq., Blank Rome William J. Olson, Esq., William J. Olson, P.C. Tony Perkins, President, Family Research Council Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law Ed Whelan, President, Ethics and Public Policy Center Dr. Charmaine Yoest, President & CEO, Americans United for Life Capt. Flagg Youngblood, United States Army
Our firm prepared this Analysis of the DISCLOSE Act (S. 3295) on behalf of the Free Speech Coalition to explain the following sections of the DISCLOSE Act that are likely to be of primary concern by member organizations:
Section 103. Treatment of payments for coordinated communications as contributions.
Section 201. Independent expenditures.
Section 202. Electioneering communications.
Section 211. Additional information required to be included in reports on disbursements by covered organizations.
Section 212. Rules regarding use of general treasury funds.
Section 213. Optional use of separate account by covered organizations for campaignrelated activity.
Section 214. Modification of rules relating to disclaimer statements required for certain communications.
Section 301. Requiring disclosure by covered organizations of information on campaign-related activity.
On behalf of Daniel Chapter One ("DCO"), today we filed with the U.S. Court of Appeals for the D.C. Circuit a reply to the FTC's opposition to the DCO motion requesting a hearing on DCO's claim under the Religious Freedom Restoration Act (“RFRA”).
On May 10, 2010, on behalf of 12 organizations, the firm filed an Amicus Brief in the Supreme Court of New Jersey supporting the efforts of the plaintiff, the Committee to Recall Robert Menendez From the Office of U.S. Senator.
On November 2, 1993, by an overwhelming majority, the people of New Jersey enacted an amendment to the New Jersey Constitution which allows the people to recall their representatives to the U.S. Congress, and directing the state legislature to promulgate laws to provide for recall elections, which the legislature did in May, 1995.
In September, 2009, the New Jersey Secretary of State refused to comply with these provisions, and declined to certify the plaintiff’s effort to recall Senator Menendez. In January of 2010, the New Jersey Superior Court, Appellate Division ordered that the recall effort must go forward. Senator Menendez joined the suit as an indispensable party. On April 27, 2010, he successfully sought expedited review of the decision by the New Jersey Supreme Court, where the case is now pending.
Our brief argues that the power to recall U.S. Senators is reserved to the people by the Tenth and Seventeenth Amendments. When the Constitution was ratified, the state legislatures had the power to choose representatives. This changed when the Seventeenth Amendment was adopted in 1913 to require the direct election of Senators by the people of the various states. Senator Menendez believes that the Amendment granted Congressmen an immunity from removal by the people they represent, even if they fail to faithfully represent the interests of their constituents.
Neither the Seventeenth Amendment nor any other section of the Constitution prohibits the people of New Jersey from recalling their representatives. Lastly, the Supreme Court’s decision in U.S. Term Limits v. Thornton does not foreclose this power. There, the Court held that the state legislatures may not add qualifications for members of Congress to supplement those in the Constitution. But the power to recall is not a qualification on whom the people may elect, but protects the people’s right to choose, giving the people another bite at the apple to elect someone who will better serve them.
The brief was filed on behalf of: Conservative Legal Defense and Education Fund; Institute on the Constitution; U.S. Justice Foundation; Gun Owners Foundation; Gun Owners of America, Inc.; Vision to America; The Lincoln Institute for Research and Education; Public Advocate; U.S. Border Control; U.S. Border Control Foundation; American Coalition for Competitive Trade; and The Constitution Party national Committee.
On behalf of Daniel Chapter One ("DCO"), today we filed with the U.S. Court of Appeals for the D.C. Circuit a motion requesting a hearing on DCO's claim that application of parts of the FTC's modified final order substantially burdens DCO's exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”).
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.
On behalf of Daniel Chapter One, this morning we filed an Emergency Motion for Stay Pending Review of FTC Modified Final Order (20 pages) with the U.S. Court of Appeals for the D.C. Circuit, as well as appended Exhibits A-G (162 pages).
Today our firm filed an amicus brief for the Free Speech Defense and Education Fund, the Free Speech Coalition, and 28 other nonprofit and for profit organizations in the case of Doe v. Reed, in the United States Supreme Court.
The brief argues that, contrary to what the state of Washington claims,freedom of speech principles do indeed apply to the Washington state referendum petition process. Moreover, anonymity for referendum petition signers in that state legislative process is protected from state abridgment by the14th amendment as an individual privilege and immunity of United States citizenship secured under the republican form of government guarantee of Article IV, Section 4 of the United States Constitution.
The brief also explains that the forced disclosure of the names and addresses of the Referendum 71 petition signers violates the anonymity rights of the people -- who are sovereign in our system of government. The brief concludes with a primer on the law of anonymity as a guide to the Court's application of the anonymity principle in this new situation.
The brief was filed on behalf of: The Abraham Lincoln Foundation for Public Policy Research, Inc., American Conservative Union, American Target Advertising, Inc., Citizens in Charge Foundation, Citizens United, Citizens United Foundation, ClearWord Communications Group, Inc., Conservative Legal Defense and Education Fund, The Constitution Party National Committee, Downsize DC Foundation, DownsizeDC.org, Eberle & Associates, Inc., English First, English First Foundation, Free Speech Coalition, Inc., The Free Speech Defense and Education Fund, Inc., Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, Law Enforcement Alliance of America, Inc., The Lincoln Institute for Research and Education, National Right to Work Legal Defense and Education Foundation, Inc., Production Solutions, Inc., Public Advocate of the United States, The Richard Norman Company, 60 Plus Association, U.S. Border Control, U.S. Border Control Foundation, U.S. Justice Foundation, and Young America's Foundation.
Today we filed an Application for Stay with the Federal Trade Commission, asking the Commission to stay its Order of January 25, 2010 against Daniel Chapter One, pending review in an Article III court. The Application was supported by a Memorandum, a Proposed Form of Order, and the following declarations:
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