President Trump's SCOTUS List, Part 1

Now that Justice Anthony Kennedy has announced his retirement from the Supreme Court, President Trump has the opportunity to solidify the conservative majority on the court. Kennedy was often seen as a swing vote and his replacement will, most likely, be more in the mold of a Neil Gorsuch than a Justice Kennedy.

Yesterday, President Trump said that he will make his pick known on July 9th. He also announced that he had shortened the list from the original 25 down to five. The five on the short list include two women. He did not announce who had made the cut to his short list. The early speculation on the short list included  Circuit Court of Appeals Judges Brett Kavanaugh, Amal Thapur, Amy Coney Barrett, Thomas Hardiman, and Raymond Kethledge. Obviously, if there are two women on the short list as indicated by the President this early speculative list is incorrect.

Thus, rather than get into the guessing game, I plan to outline what we know about the 25 in a series of five posts. Beyond their education and work history, I am most interested in what they've said or may have written about gun rights and the Second Amendment. The easiest way to break down the list is by alphabetical order.

Amy Coney Barrett

Personal:
46 y.o., married to Jesse Barrett, an AUSA for Northern Indiana, 7 children. Roman Catholic. 

Current Position:Judge, 7th Circuit Court of Appeals, appointed by Pres. Donald Trump, confirmed Oct. 31, 2017 

Education:
Rhodes College, BA, 1994
Univ. of Notre Dame Law School, JD summa cum laude, law review, 1997 

Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1997-1998
Justice Antonin Scalia, Supreme Court of the United States, 1998-1999 

Previous Positions:Associate, Miller, Cassidy, Larroca & Lewin, Washington, DC., 1999-2001
Adjunct Prof., George Washington University Law School, 2001-2002
John M. Olin Fellow in Law, 2001-2002
Prof. of Law, University of Notre Dame Law School, 2002-2017
Visiting Prof. of Law, University of Virgina Law School, 2007

Scholarship:
Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle)
Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
Statutory Interpretation in The Encyclopedia of American Governance (2016).
Federal Court Jurisdiction in The Encyclopedia of American Governance (2016).
Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109 (2010).
Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States.
Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey) 

Judicial Opinions: In the short time Judge Barrett has been on the 7th Circuit Court of Appeals, she has authored eight majority opinions and one dissent. None of these had to do with issues surrounding either the First or Second Amendments. 

Opposition:Judge Barrett, a practicing Roman Catholic and mother of seven, is loved by evangelicals and hated by the Left. The former hopes she'll vote to overturn Roe v. Wade and the latter expect her to do that and thus find her objectionable. According to the left-wing Alliance for Justice, she decried Roe due to the Supreme Court "creat[ed] through judicial fiat a framework of abortion on demand.” "

Keith R. Blackwell

Personal:
42 y.o, (July 4, 1975) married to Angela Blackwell, three daughters. 

Current Position:Associate Justice, Georgia Supreme Court, appointed by Gov. Nathan Deal, 2012. 

Education:
University of Georgia, AB Summa Cum Laude, First Honor Graduate (4.0 GPA), 1996
University of Georgia School of Law, JD Summa Cum Laude, 1999 

Clerkships:
Judge J. L. Edmondson, 11th Circuit Court of Appeals, 1999-2000 

Previous Positions:Associate, Austin and Bird, Atlanta, GA, 2000-2003
Asst DA, Cobb County, GA, 2003-2005
Associate and Partner, Parker, Hudson, Rainer & Dobbs LLP, Atlanta, GA, 2005-2010 (commercial litigation)
Deputy Special Attorney General, Georgia, for constitutional litigation.
Judge, Georgia Court of Appeals, 2010-2012, appointed by Gov. Sonny Perdue

Judicial Opinions:
Concurring Opinion, Hertz v Bennett. The case involved the denial of a carry permit for James Hertz. He had pleaded no contest to five felony charges in 1994 in the state of Florida involving aggravated assault. He received three years probation and six months house arrest which he successfully completed. Under Georgia law, Hertz was not eligible for a carry permit due to his no contest plea on a felony. Blackwell concurred on the result but said:

"no one should misunderstand the Court to suggest that constitutional guarantees extend only as far as the home."

"To the contrary, the Court today applies intermediate scrutiny to [Official Code of Georgia] § 16-11-129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home." 

"Second, our decision today is a limited one," says the concurrence, which is joined by Presiding Justice P. Harris Hines and Justice David Nahmias. "[A]lthough the court did not enter a formal adjudication of guilt, it found a factual basis for the plea….In these peculiar circumstances, the Court concludes that the State of Georgia may – consistent with the constitutional guarantees of the right to keep and bear arms – deny Hertz a license to carry firearms in a public place."

Public Comments:
In 2013, in a talk given to students at North Cobb High School, Justice Blackwell had this to say about the Second Amendment:

Blackwell only chimed in briefly to request that the students look into the history of the Second Amendment and why the founding fathers believed it was needed. 

“It was all about limiting the power of government,” he said. “The idea was that there is only so much the government could do if the people are armed. That was fundamentally the idea. 

“I know some folks like to say, well that’s when people had muskets, now we’re talking about modern militaries and people can’t resist those with ordinary firearms.” 

He explained that isn’t the case if the students look at the wars in Vietnam, Iraq and Afghanistan where “ordinary folks” without sophisticated training “gave an awful lot of trouble to our men and women in uniform, who are the best trained and best equipped fighting force in the history of the world.”

Charles T. Canady

Personal:
64 y.o., is married to Jennifer Houghton Canady, has two teenage daughters. Presbyterian. 

Current Position: Chief Justice, Florida Supreme Court, appointed 2008 by Gov. Charles Crist 

Education:
Haverford College, BA, 1976
Yale University Law School, JD, 1979 

Previous Positions:
Private Practice, Holland and Knight, Lakeland, FL, 1979-1982
Private Practice, Lane, Trohn, Lakeland, FL, 1983-1992
Florida House of Representatives, 1984-1990
US House of Representatives, 1993-2001, Chairman of House Judiciary Subcommittee on the Constitution,
General Counsel, Gov. Jeb Bush, 2001-2002
Judge, Florida 2nd Circuit Court of Appeal, 2002-2008

Judicial Opinions:
Dissenting Opinion, Bretherick v. State. Case involved who should be required to have the burden of proof in pre-trial evidentiary hearings involving Florida's Stand Your Ground law. In a 5-2 decision, the Florida Supreme Court held that the burden of proof was on the defendant. Canady in his dissenting opinion said: 

By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your Ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.

2A Votes:
While in the US House of Representatives, Canady voted against the Brady Bill and the Clinton Administration's Assault Weapons Ban. 

Steven M. Colloton

Personal:
55 y.o., is married to Deborah Colloton, has two daughters. Roman Catholic.

Current Position:
Judge, 8th Circuit Court of Appeals, appointed by Pres. George W. Bush, confirmed on Sept 4, 2003

Education:
Princeton University, AB, 1985
Yale University Law School, JD, 1988

Clerkships:
Judge Laurence Silberman, US Court of Appeals for the DC Circuit, 1988-1989
Chief Justice William Rehnquist, Supreme Court of the United States, 1989-2000
Previous Positions:
Special assistant to the assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, 1990-1991
Assistant U.S. attorney, Northern District of Iowa, 1991-1999
Associate independent counsel, Whitewater investigation, 1995-1996
Private practice, Iowa, 1999-2001
Adjunct lecturer, University of Iowa College of Law, 2000
U.S. attorney for the Southern District of Iowa, 2001-2003

Judicial Opinions:
As of January 2017, Judge Colloton had authored over 615 majority opinions and numerous concurrences and dissents in his years on the 8th Circuit Court of Appeals. He has four decisions relating directly to the Second Amendment in which he rejected the claims each time. The SCOTUSBlog summarizes them:

We found four pertinent Second Amendment cases. Colloton rejected a Second Amendment challenge to gun laws each time – personally writing an opinion in three of those cases. These are Rodgers v. Knight (rejecting claim that the seizure and retention of a citizen’s firearms by police had violated citizen’s Second Amendment rights); United States v. Bena (rejecting constitutional challenge to federal statute punishing possession of firearms while subject to a court order of protection); and United States v. Lippman (concurring in the judgment and arguing that assuming the Second Amendment confers an individual right to bear arms, the federal prohibition on possession of a firearm by a person subject to a domestic-violence restraining order is constitutional). In United States v. Humphrey Colloton joined, without writing separately, a panel opinion upholding the constitutionality of federal felon-in-possession gun felony statute.

Allison H. Eid

Personal:
53 y.o, married to Troy Eid, former US Attorney for the District of Colorado, and has a son and daughter.

Current Position:
Judge, 10th Circuit Court of Appeals, appointed by Pres. Donald Trump to replace Justice Neil Gorsuch in 2017. Confirmed on Nov. 2, 2017.
Education:Stanford University, A.B., 1987
University of Chicago Law School, J.D., 1991

Clerkships:
Judge Jerry E. Smith, U.S. Court of Appeals for the Fifth Circuit, 1991-1992
Justice Clarence Thomas, Supreme Court of the United States, 1993-1994

Previous Positions:Special Assistant and Speechwriter to Sec. of Education William Bennett, 1987-1988
Associate - commercial and appellate litigation, Arnold and Porter, Washington, DC 1994-1998
Assoc. Prof., University of Colorado School of Law, 1998-2009, 2011-2015 Solicitor General of Colorado, 2005 Associate Justice, Colorado Supreme Court, 2006-2017. Appointed by Gov. Bill Owens and retained by voters in 2008.

Scholarship:
Private Party Immunities to Section 1983 Suits, 57 U. Chi. L. Rev. 1323 (1990)
The Tort Reform Debate: The View from Colorado, 31 Seton Hall L. Rev. 740 (2000-2001)
A Spotlight on Structure, 72 U. Colo. L. Rev. 911 (2001)
Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts, 25 Seattle U. L. Rev. 89 (2001-2002)
Federalism and Formalism, 11 Wm. & Mary Bill Rts. J. 1191 (2002-2003)
Tort Reform and Federalism - The Supreme Court Talks, Bush Listens, 29 Hum. Rts. 10 (2002)
Justice White's Federalism: The (Sometimes) Conflicting Forces of Nationalism, Pragmatism and Judicial Restraint, 74 U. Colo. L. Rev. 1629 (2003)
The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241 (2004)
Teaching New Federalism, 49 St. Louis U. L.J. 875 (2004-2005)
Preemption and the Federalism Five, 37 Rutgers L.J. 1 (2005-2006)

Judicial Opinions:
Of particular note to my readers would be Eid's opinion  in Board of Regents of the University of Colorado v. Students for Concealed Carry on Campus from 2012. The case was brought to the Colorado Supreme Court by attorney Jim Manley and the Mountain States Legal Foundation as a challenge to the University of Colorado's assertion that Colorado's Concealed Carry Act exempted the university. The Colorado Supreme Court found unanimously for the students. 

From her opinion:

The court of appeals held that the Students stated a claim for relief because the CCA expressly applies to “all areas of the state.” The court further concluded that the Students had stated a claim for relief under article II, section 13 of the Colorado Constitution, which affords individuals the right to bear arms in self-defense. See Students for Concealed Carry on Campus, LLC v. Regents of the U. of Colo., No. 09CA1230, --- P.3d ---, 2010 WL 1492308, at *7, *11 (Colo. App. April 15, 2010). 

We granted certiorari and now affirm. We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. Accordingly, we agree with the court of appeals that, by alleging the Policy violates the CCA, the Students have stated a claim for relief. Because we affirm on statutory grounds, we do not consider the Students’ constitutional claim.

Opposition:
The Alliance for Justice calls Eid a "narrow minded elitist" which is laughable. Eid was a young child when her father abandoned the family leaving them with nothing and her mother was suddenly forced into the workforce to support Eid and her sibling. Some of Eid's biggest backers for the 10th Circuit judgeship were Indian tribes as well as the National Native American Bar Association who said she understood those in "Indian Country". Neither the support from the tribes nor her childhood indicate anything near what would be expected of a "narrow minded elitist". She was also opposed by The Leadership Conference and the League of Conservation Voters. Meh!

Shocking! A Semi-Honest Email From A Gun Control Group

I received an email yesterday from Peter Ambler who is the executive director of that cult of personality known as Giffords. His email said they inundated you with emails on a regular basis in the hopes you'd kick in a few bucks. I was shocked by this honest admission.

John -

We send a lot of emails. No doubt about it. You probably get as many messages from us as you do from members of your family. There’s a reason for that.

Can we explain?

The truth is, the overwhelming majority of the donations we receive come from lots and lots and lots of people giving small amounts of money. People of all backgrounds and in all communities chipping in 5, 10, 20 bucks because we all share one goal: changing our gun laws and saving lives.

And most of those donations? They come in response to emails like this one. So now you can see why they are so important… and why we have to ask:

Can you chip in $3 to Giffords PAC as part of our emergency 72-hour fundraising drive? It ends tomorrow at midnight. So this is important.

Gabby, Mark, and everyone at Giffords are extraordinarily proud of the way we raise our money here. Not just because it keeps us in the fight against the gun lobby, but because so many people stepping up to take ownership of our country’s future on this issue is how we create change.

All my best,

Peter Ambler Executive Director, Giffords

I can't say this email is completely honest because I know they've received many five and six figure donations. In their latest report with the Federal Elections Commission they reported large donations from people like Jon Shirley ($30,000), former president of Microsoft, and Marcy Carsey ($25,000), the Hollywood producer. Going back even further you find donations from Michael Bloomberg ($250,000) and Connie Ballmer ($250,000), wife of former Microsoft CEO and LA Clippers owner. I will give Ambler this that the trend is now towards unitemized donations aka small ones as opposed to large donations that the FEC requires to be identified as to the donor and amount.

932 Pages Is Hard To Ignore

Alinsky's Rule No. 4 states "Make the enemy live up to its own book of rules." Part of the rule book for administrative rulemaking is that each and every comment must be examined. It is easy to skim over repetitive comments stating "teh bump stock is bad" or, conversely, "you are wrong, you child-killing gun grabbers." It is much harder to ignore a 923 legal document with 35 exhibits written by firearms law attorneys.

That is what the Firearm Policy Coalition and the Firearms Policy Foundation dumped into the laps of the bureaucrats at DOJ and BATFE. The bureaucrats at DOJ thought their 50 pages of legal sophistry as to why bump fire stocks are illegal would scare people away. It didn't. The FPC/FPF comment was written by attorneys Joshua Prince and Adam Kraut of the Firearms Industry Consulting Group. They know a thing or two about the NFA and firearms law in general.

The key thing about such a long document such as the comment submitted by FPC/FPF is that each and every point will have to be considered and the rule will have to address them. Moreover, it sets up the playing field for the anticipated court challenge to the probably bump stock ban rule. Only things that were brought up during the comment period can be considered by the courts. No new objections can be made.

Below is the news release from the Firearms Policy Coalition and the Firearms Policy Foundation detailing their 923 page comment. As a reminder, doing stuff like this isn't cheap and proponents of gun rights don't have our own pet billionaire to fund us unlike the corporate gun ban lobby. You might want to send a few bucks to the FPF- tax deductible, you know - to help in the effort.

WASHINGTON, DC (June 27, 2018) — Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) have announced that their extensive, 923-page opposition comment was filed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the agency’s proposed rulemaking to ban “bump-stock” devices. The FPC Comment and its 35 exhibits can be viewed online in their entirety at https://www.firearmspolicy.org/fpc-fpf-opposition-atf-bump-stock-ban.

The FPC Comment in opposition was filed on the groups’ behalf by attorneys Joshua Prince and Adam Kraut of Firearms Industry Consulting Group (FICG) after President Trump directed Attorney General Jeff Sessions to use executive actions to unlawfully and unconstitutionally expand the scope of statutes to force the dispossession and destruction of legally-acquired property--without just compensation--and subject possibly more than 500,000 Americans to severe federal criminal penalties. FICG attorney Adam Kraut produced a video (Exhibit 28) with Patton Media and Consulting to show how a bump-fire-type device actually works when it is installed on a firearm.

“It is beyond outrageous that ATF has purposely misled the public on the function of bump-stock-devices,” said FICG Chief Counsel Joshua Prince. “Even setting aside the constitutional concerns, there are a plethora of issues that preclude ATF from moving forward with its bump-stock proposal. ATF is unlawfully attempting to usurp the Congress’ power by modifying a definition codified in the tax code by Congress and is attempting to retroactively apply this definition, which is precluded by federal tax laws designed to prevent this kind of action by the Government.”

“Perhaps more frightening than the text of this unlawful executive action is the fact that the Trump Administration is expressly saying that not only can the ATF re-write Congress’ statutes to mean whatever they prefer, but that the Second Amendment doesn’t protect conduct with common semi-automatic firearms and parts, let alone devices like machineguns,” commented FPC President and FPF Chairman Brandon Combs. “That should send chills down the spines of American gun owners.”

“Our important opposition is not only a substantial addition to the rulemaking record, but a warning shot across the ATF’s bow. If the ATF proceeds with this unlawful and unconstitutional proposal, our attorneys have been instructed to explore every possible legal remedy, including filing a federal lawsuit and seeking an injunction. We would relish the opportunity to defend the Constitution and law-abiding American people against the Trump Administration’s patently anti-gun arguments in a court of law,” Combs concluded.

BACKGROUND

In ten letter rulings between 2008 and 2017, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) concluded that bump-stocks and some similar devices did not qualify as “machineguns” because they did not “automatically” shoot more than one shot with a single pull of the trigger.

On October 1, 2017, a terrorist used firearms in a premeditated attack on attendees of an outdoor concert in Las Vegas, Nevada, killing 58 people and injuring more.

On December 26, 2017, ATF published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register regarding the “Application of the Definition of Machinegun to ‘Bump Fire’ Stocks and Other Similar Devices” as an initial step in the process of substantively changing through fiat regulation the statutory definition of “machinegun” with the intent to ban bump-stock-type devices they previously ruled were legal to acquire, possess, and use.

On January 25, 2018, Firearms Policy Coalition (FPC) submitted comments responding to the ATF – an agency under the Department of Justice – Advance Notice of Proposed Rulemaking (ANPRM) in opposition to the “Application of the Definition of Machinegun to “Bump Fire” Stocks and Other Similar Devices.”

On February 20, 2018, President Donald Trump issued a memorandum to Attorney General Sessions directing the Department of Justice to initiate a regulatory action to ban “bump fire” stocks and similar devices. (83 Fed. Reg. 7949.)

On March 29, 2018, the ATF published its Notice of Proposed Rulemaking regarding a proposed ban on “Bump-Stock-Type Devices” in the Federal Register. (83 Fed. Reg. 13442.)

On June 19, 2018, attorneys at Firearms Industry Consulting Group submitted over 900 pages of analysis and documents, along with multiple video exhibits, on behalf of FPC and FPF (the “FPC Opposition”) in opposition to the ATF’s proposed rulemaking. In the FPC Opposition, and by separate letter to ATF Acting Director Thomas E. Brandon, FIGG (on behalf of FPC and FPF) demanded a hearing before any final rulemaking action pursuant to the right codified under 18 U.S.C. § 926(b).

The comment period for ATF rulemaking docket no. 2017R-22 will close on June 27, 2018, at midnight Eastern Daylight Time.

SUMMARY OF OPPOSITION ARGUMENTS

• ATF’s Proposed Rulemaking (docket no. 2017R-22) is procedurally flawed and violates the Administrative Procedure Act (APA)
• ATF’s proposed rule violates the Constitution in numerous ways, including:
  • I – Separation of Powers
  • I – Ex Post Facto Clause
  • Fundamental, individual right to keep and bear arms protected under the Second Amendment
  • Rights to due process, fair notice, and just compensation for the taking of property protected under the Fifth Amendment
• ATF’s proposed rule exceeds its statutory authority
• ATF’s proposed rule is arbitrary and capricious
• ATF’s proposed rule is unconstitutionally vague
• ATF failed to consider viable and precedential alternatives
• ATF’s proposed rule is not supported by policy considerations
• ATF’s proposed rule “should be withdrawn and summarily discarded, or, in the alternative, ATF should elect Alternative 1 and abandon the proposed rulemaking in its entirety.”

RELATED NEWS RELEASES

Oct. 6, 2017: Firearms Policy Coalition Repudiates Proposed Bans on Semi-Automatic Firearms and Accessories, Including “Bump Fire” Stocks - http://bit.ly/fpc-2017-10-6-bumpstocks

Jan. 25, 2018: FPC Says ATF ‘Bump Stock’ Regulation Proposal is “Illegal” - http://bit.ly/fpc-2018-1-25-bumpstock-ban-illegal

Feb. 20, 2018: FPC Calls President Trump’s ‘Bump Stock’ Ban “Lawless” - http://bit.ly/fpc-2018-2-20-trump-ban-lawless

Feb. 26, 2018: President Trump Says He Will ‘Write Out’ Bump Stocks Without Congress; Two Second Amendment Groups Initiate Legal Action to Oppose Ban - http://bit.ly/fpc-2018-2-26-trump-bumpstocks

LIST OF DOCUMENTS AND EXHIBITS FILED

All documents and videos listed below are available online at https://www.firearmspolicy.org/fpc-fpf-opposition-atf-bump-stock-ban.

FPC and FPF's Comments in Opposition to Proposed Rule ATF 2017R-22

Exhibit 1 - FICG Expedited FOIA request dated March 30, 2018

Exhibit 2 - LVMPD Preliminary Investigative Report, January 18, 2018

Exhibit 3 - Video: Iraqveteran8888, Worlds Fastest Shooter vs Bump Fire! – Guns Reviews, YouTube, October 13, 2014

Exhibit 4 - Video: Miculek.com, AR-15 5 shots in 1 second with fastest shooter ever, Jerry Miculek (Shoot Fast!), YouTube, June 20, 2013

Exhibit 5 - Carl Bussjaeger, [Update] Bumbling Machinations on Bump Stocks?, April 2, 2018 and [Updated] Bump-fire Rule: “Comments Not Accepted”, March 30, 2018

Exhibit 6 - Motion in Limine, United States v. Friesen, CR-08-041-L (W.D. Okla. Mar. 19, 2009)

Exhibit 7 - John Bresnahan and Seung Min Kim, Attorney General Eric Holder held in contempt of Congress, June 28, 2012

Exhibit 8 - Testimony of Gary Schaible, United States v. Rodman, et al., CR-10-01047-PHX-ROS

Exhibit 9 - Senator Diane Feinstein, Feinstein: Congress Shouldn’t Pass the Buck on Bump-Fire Stocks, October 11, 2017

Exhibit 10 - ATF Determinations

Exhibit 11 - Video: Shooting Videos, Rapid manual trigger manipulation (Rubber Band Assisted), YouTube, December 14, 2006

Exhibit 12 - Video: StiThis1, AK-47 75 round drum Bumpfire!!!, YouTube, September 5, 2011

Exhibit 13 - Video: ThatGunGuy45, ‘Bump Fire’ without a bump-fire stock, courtesy of ThatGunGuy45, YouTube, October 13, 2017

Exhibit 14 - Video: M45, How to bumpfire without bumpfire stock, YouTube, October 8, 2017

Exhibit 15 - Verified Declaration of Damien Guedes

Exhibit 16 - Verified Declaration of Matthew Thompson

Exhibit 17 - Video: Vice News, Meet One Of The Analysts Who Determined That Bump Stocks Were Legal, YouTube, October 11, 2017

Exhibit 18- Video: Fastest Shooter OF ALL TIME! Jerry Miculek | Incredible Shooting Montage, DailyMotion, 2014

Exhibit 19- Gun Control Act of 1968, 82 Stat. 1235

Exhibit 20 - 26 C.F.R. § 179.120

Exhibit 21 - Joshua Prince, Violating Due Process: Convictions Based on the National Firearms Registration and Transfer Record When its ‘Files are Missing’, September 28, 2008

Exhibit 22 - Eric Larson’s testimony and exhibits of April 3, 1998, before the House Committee on Appropriations

Exhibit 23 - ATF Quarterly Roll Call Lesson Plan, July 12, 2012

Exhibit 24 - Eric M. Larson, How Firearms Registration Abuse & the “Essential Operational Mechanism” of Guns May Adversely Affect Gun Collectors, Gun Journal, March 1998

Exhibit 25 - U.S. Government’s Brief in Support of Cross Motion For Summary Judgment And In Opposition to Plaintiff’s Motion For Summary Judgment, Freedom Ordinance Mfg. Inc., v. Thomas E. Brandon, Case No. 3:16-cv-243-RLY-MPB

Exhibit 26 - Video: Molon Labe, hogan 7 m16.wmv, YouTube, October 25, 2011

Exhibit 27 - Testimony of ATF Senior Analyst Richard Vasquez in U.S. v. One Historic Arms Model54RCCS, No. 1:09-CV-00192-GET

Exhibit 28 - Video: Adam Kraut Esq. and Patton Media and Consulting, Bump Stock Analytical Video, June 14, 2018

Exhibit 29 - National Firearms Act: Hearings Before the Committee on Ways and Means, H.R. Rep. No. 9066, 73rd Cong. 2nd Sess. April 16, 18, and May 14, 15, and 16 1934

Exhibit 30 - Testimony of Police Chief J. Thomas Manger

Exhibit 31 - ProPublica, Workers’ Comp Benefits: How Much is a Limb Worth?, March 5, 2015

Exhibit 32 - Verified Declaration of former ATF Acting Chief of FTB Rick Vasquez

Exhibit 33 - Verified Declaration of Jonathan Patton of Patton Media and Consulting

Exhibit 34 - FICG’s Letter on Behalf of FPC to Acting Director Brandon

Exhibit 35 - FPC’s January 25, 2018 Letter in Opposition to ATF’s ANPRM re: “Application of the Definition of Machinegun to ‘Bump Fire’ Stocks and Other Similar Devices”

Wednesday Is The Last Day To Comment On ATF's Proposed Retroactive Ban On Bump Stocks

Tomorrow, Wednesday, June 28th at 11:59pm EDT, is the close of the comment period on the Bureau of Alcohol, Tobacco, Firearms, and Explosives proposed ban on bump fire stocks. According to the legal sophistry of the DOJ lawyers, the BATFE erred when it said bump fire stocks did not violate the National Firearms Act. Thus, if the rule is adopted, bump fire stocks will be treated as machine guns and since they were produced after the Hughes Amendment was enacted they will be destroyed without compensation.

Bump fire stocks are a novelty to me. However, more important is how this ruling could be used to expand restrictions on all semi-automatic firearms, trigger upgrades, and the list goes on. To paraphrase Pastor Martin Niemoller's quote about the Nazis, "first they came for the bump fire stocks and I did not speak out because I didn't own a bump fire stock..."

The corporate gun ban lobby has been active in the last few days trying to solicit their members to submit comments. I'm sure they'll get a lot that will ignore the law and play on emotion. While I'll have another post up in the morning about the Firearms Policy Coalition's 900+ page submission, for the time being here is a reminder from Grass Roots North Carolina.

STOP THE ‘BUMP-STOCK’ GUN BAN

The Dangerous Precedent of the ‘Bump-Stock’  ban. The law that a ‘machine gun’ is defined by one trigger pull firing multiple rounds was written by congress and signed off on by the executive branch.  But with ‘Writing It Out’ the executive branch all by its lonesome is going to magically redefine multiple trigger pulls as one so that they can call a bump-stock equipped semi-auto firearm a ‘machine gun’.   In the words of the Bureau of Alcohol, Tobacco, Firearms, and Explosives: Specifically, these devices convert an otherwise semiautomatic firearm into a machinegun by functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter. The trigger still has to be pulled for every shot, but with the word play magic, those additional trigger pulls are going to be ‘written out’ so with supposedly one trigger pull, you have a ‘Machine gun’! It’s a semi-automatic miracle!       If the required trigger pull for every shot has been ‘written out’ devices such as Bump-stocks, belt loops, rubber bands or fingers will have to be banned since these can also turn that which is ‘semi-automatic’ into something that is ‘automatic’.  But they can’t very well ban pants, rubber bands or fingers, so they will have to ban semi-automatic firearms instead.     But wait!  There’s more!     With this magical word play any gun that can fire again with just a trigger pull could also be banned as a 'machine gun', meaning revolvers or shotguns could also be eliminated. See how easy it is to ban just about everything by just changing the meaning of a few words? Nancy Pelosi [Bless her heart] openly admitted that she hoped the ‘Bump-Stock’ ban would lead to a slippery slope towards other restrictions on our freedom.   “They’re going to say, ‘You give them bump stock, it’s going to be a slippery slope.’ I certainly hope so,” Pelosi confirmed. The Left wants to cynically exploit the recent shootings for political gain, This is only round one of a coming battle to defend your Constitutional rights.

IMMEDIATE ACTION REQUIRED!

The end of the comment period is tomorrow: June 27, 2018  so you only have a short time to express your opinion on this important and far reaching issue. SUBMIT A COMMENT AGAINST THE THE SEMI-AUTO/BUMP-STOCK BAN  Click on the link provided, and use the copy/paste message provided below under ‘Deliver This Message.’https://www.regulations.gov/comment?D=ATF-2018-0002-0001 Help GRNC reload for the coming battle: The Left cannot stand it when you exercise your rights and they will stop at nothing to deprive you of them.   We desperately need money and volunteers for the upcoming battle. Please help by donating at: https://www.grnc.org/join-grnc/contribute

DELIVER THIS MESSAGE

This is in opposition to the 'bump device' ban, or any such rule.     The Executive branch of the Federal government cannot simply change the meaning of words to ‘write out’ things that are unpopular at the moment. It also cannot turn semi-automatic firearms into ‘machine guns’ with the stroke of a pen.  These firearms require multiple trigger pulls to fire.  No amount of word magic can change that fact. Attempting to do so will set a dangerous precedent with potential to put all guns on the chopping block.  That will most certainly INFRINGE on the 2nd amendment.  The Federal government has no authority to  change the meaning of words that impact the law in this matter.   Respectfully,

District Of Columbia v. Heller At 10

10 years ago today the opinion written by the late Justice Antonin Scalia in DC v Heller confirmed what we had known in our hearts was the intent of the Founding Fathers. To wit, that the Second Amendment affirms an individual right to keep and bear arms for self-defense and other purposes. Since that time, many inferior courts have tried to parse Justice Scalia's language in such a way as to negate the impact of the Heller decision. It is as if district and appeals court judges were treating Heller and the Second Amendment as Southern legislators treated Brown v. Board of Education and desegregation. In other words, they have tried to ignore it and continue on their unconstitutional ways. The sad thing is that the Supreme Court since the death of Justice Scalia seems inclined to be treated like a door mat on the issue.

There have been some wins such as the essential McDonald v. Chicago case which used the 14th Amendment to apply the Second Amendment to the states, Bateman v. Perdue in North Carolina which said said people needed to be able to defend themselves during times of emergency, Ezell v. Chicago which held that training was an essential part of the right to keep and bear arms, and the twin cases of Moore v. Madigan and Shepard v. Madigan which forced Illinois to adopt shall-issue concealed carry.

Used with permission. Dick Heller and Amanda Suffecool with THE revolver.

There are still more cases in the pipeline that will eventually make it to the Supreme Court. Whether the Court will decide to accept them depends upon when and if another vacancy occurs. If a Ginsberg or a Breyer die or retire, then I think you'd have the solid 4th vote to accept a case and probably would get a 6-3 or 5-4 win on the merits.

There are people we need to thank for working hard to obtain the win in Heller. First of all, Dick Heller who, of the all the plaintiffs in the original case, actually tried to register his .22 LR revolver with the District and was turned down. Then the legal team of Alan Gura, Clark Neely, and others at the Institute of Justice which assembled the plaintiffs and shepherded the case from start to finish. Special thanks needs to go to Robert Levy of the Cato Institute who personally funded the case. Of course, thanks to Justices Scalia, Kennedy, Thomas, Roberts, and Alito for their good sense in forming the majority in the case. Finally, and this may seem odd, but thanks needs to go to former DC Mayor Adrian Fenty whose hubris led him to appeal the Circuit Court of Appeals win for Dick Heller. Without that appeal, Heller would not have gone to the Supreme Court and all the subsequent cases probably would never have been heard. Sometimes your opponents create your luck.

We've won some and we've lost some. However, we still have a long way to go in our efforts make this enumerated civil right as respected by the courts as the First Amendment. I really believe as we broaden the gun culture we will achieve those goals.

A Timely Reminder From The Local Gun Prohibitionists

I want to thank North Carolinians Against Gun Violence, a wholly owned subsidiary of Michael Bloomberg's Everytown, for this timely reminder.

Subject: Easy ASAP To Do: Email ATF on Bump Stocks by June 27 Comment Deadline

Jack --

The Bureau of Alcohol, Tobacco, Firearms and Explosives (aka ATF)  is again receiving comments on bump stocks. The new comment deadline is Wednesday, June 27. Simply click here to comment. .

Please take a moment to comment today. The other side has been flooding ATF with comments against the proposed regulation and we need to show public support for it.
--Becky
-----------------

On the night of October 1, 2017, a gunman opened fire from a hotel room on the 32nd floor of the Mandalay Bay hotel into the 22,000 person crowd at the Route 91 Harvest country music festival in Las Vegas, Nevada, killing 58 people and injuring more than 500. The gunman fired more than 1,100 rounds of ammunition in 11 minutes, using semi-automatic rifles modified with dangerous firearm accessories designed to dramatically accelerate the rate of gunfire, commonly known as “bump fire stocks.” These devices are intended to circumvent the restrictions on possession of fully automatic firearms in the Gun Control Act of 1968 and the National Firearms Act of 1934 by allowing an individual to modify a semiautomatic rifle in such a manner that it operates with a similar rate of fire as a fully automatic rifle, posing a substantial risk to public safety.

In the absence of immediate action by Congress, I urge ATF to finalize its proposed rule clarifying that bump fire stocks, along with other “conversion devices” that enable semiautomatic weapons to mimic automatic fire, qualify as “machine guns” under the National Firearms Act. And then Congress must act as well—to ensure that manufacturers cannot continue to endanger public safety by designing devices that imitate machine guns and subvert the law. The continued presence of these dangerous devices puts all of our communities at risk, and both Congress and ATF must take action quickly to address this threat.



North Carolinians Against Gun Violence

NCGV
http://www.ncgv.org/

While I may think bump fire stocks are a novelty and a good way to waste ammunition, I don't want them banned. My rationale is that banning them is merely a first step towards more regulation of semi-automatic firearms of all sorts. The Department of Justice's legal rationale as published is an exercise in legal sophistry and they know it. 

I would refer readers back to this post from April which features a video by Adam Kraut if you need some suggestions on how to respond to the request for comments. There is more on the comment period from Adam's Prince Law Firm blog. You can also check out this Facebook page, Americans Opposed to ATF 2017R-22, for more ideas.

I'll admit that I'm not an optimist when it comes to stopping this ban. However, getting objections on file is the key to bringing a lawsuit. Take 5-10 minutes and submit a comment. Make sure to include "ATF 2017R-22" in your comment.

There Are Felons In Possession And Then There Is This!

It is against Federal law and most state laws to be a convicted felon in possession of a firearm. This would include possession of ammunition. Usually when a criminal is charged with being a felon in possession it is because they had used a firearm in the commission of another crime. Then there is Manuel Fernandez of Agua Dulce, California.

Fernandez had been convicted of a felony in February 2017 but was released in August. He had been sentenced to 486 days in jail on unspecified felony charges.

Fast forward to June 14th. The Los Angeles Sheriff's Department acted on a tip and raided Fernandez's home outside of Palmdale. The tip said Fernandez had "an arsenal". Normally, in California terms, that meant he had a Marlin Glenfield 60, a Ruger 10/22, and maybe a semi-broken revolver along with a couple of boxes of ammo.

LA County Sheriff's Dept photo

In this case, I will freely admit that Fernandez did indeed have an arsenal by any stretch of the imagination.

LA County Sheriff's Dept photo

The sheriff's raid initially netted 432 firearms. They then got a warrant to search another house of a "female friend" a mile away and got another 30 firearms. However, they were not done. Returning to Fernandez's residence, investigators found another 91 firearms hidden throughout the house and property. This brings the total to 553 firearms. In a quick scan of the photos, I see Mosins, Swiss K-31, Mausers, etc. He was an equal opportunity felon in possession it seems.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives is working with the LASD to trace these weapons. Investigators also seized computers, hard drives, and cell phones that they thought might have been used in Fernandez's illegal firearms purchases.

LA County Sheriff's Dept photo

Fernandez has been charged with being " Felon in Possession of Firearms (129800(a)(1) PC), Possession of an Assault Rifle (32625(a) PC, Felon in Possession of Ammunition (30305(a) PC) and Possession of Large Capacity Magazines (32310(a) PC)." Believe it or not but Fernandez was released on bail the next day which I have confirmed through LASD records. Fernandez appears in court on July 9th on these charges.

I'm going to guess that if Fernandez is convicted he will serve more than the 486 days his first felony conviction was supposed to bring him.

Happy (Belated) National Bourbon Day

National Bourbon Day was yesterday. Sad to say my tipoff was an email from Liquor Barn which is a large chain in Kentucky. I apologize for not keeping up with the calendar to alert you to such a momentous day!

To make up for it, here is a good video put out by NBC News. I'm kind of shocked that NBC actually put together a decent story but it was. It talks about craft distilling, sourced whiskey, bourbon marketing, and the half-truths put out regarding the various brands of bourbon.

The key words to keep in mind are "distilled by". If it doesn't say that on the label, it is probably sourced whiskey. "Produced by", "bottled by", "made by", and other words are marketing tools used to confuse the buyer into thinking the people behind the brand name on the label actually distilled the whiskey. It is probably from MGP in Lawrenceburg, Indiana or one of the other major distillers in Kentucky who had some excess production.

Daniel Easterday Talks About Gun Rights In Deerfield

Daniel Easterday, a resident of Deerfield, Illinois and the name plaintiff in the lawsuit against Deerfield, was interviewed by Dana Loesch of NRA-TV. It's a short interview - less than two minutes - but the most interesting part in my opinion is who he first credits. It is my friends from the Firearms Policy Coalition Brandon Combs and Alan Normandy.




The Firearms Policy Coalition is a small gun rights group on the national scene when compared to the NRA, GOA, and SAF. Their size and their background from the fight for gun rights in California has given them an agility that is essential in the fight against the corporate, big money, gun control lobby.  A few bucks sent their way goes a long way.

Good News - A Win In Illinois

Daniel Easterday, the Second Amendment Foundation, and the Illinois State Rifle Association scored a win today in Lake County Circuit Court when they were granted a temporary restraining order against the enforcement of Deerfield's assault weapon (sic) and magazine ban. The ban which was scheduled to go into effect tomorrow (June 13th) would have levied an up to $1,000 a day fine plus surrender of the firearm for each day the person violated the ordinance.

Congratulations to Glen Ellyn (IL) attorney David Sigale who served as second chair in the monumental McDonald v. Chicago case.

Both SAF and ISRA issued releases on this win.

First, from SAF:

A circuit court judge in Lake County, Illinois has granted an injunction against the Chicago suburb of Deerfield, blocking the village from enforcing a ban on so-called “assault weapons,” and handing a victory to the Second Amendment Foundation.

SAF was joined in the lawsuit by the Illinois State Rifle Association and Deerfield resident Daniel Easterday, who is a lawful firearms owner. SAF and ISRA had challenged the ban on the grounds that it violates the state’s preemption law that was adopted in 2013. That change amended state statute that declared “the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid…”

There was a short grace period during which municipalities in the state could change or adopt their gun laws, and Deerfield maintained that its ban was merely an amendment to an earlier ordinance that regulated firearms.

“We moved swiftly to challenge this gun ban because it flew in the face of state law,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The village tried to disguise its extremism as an amendment to an existing ordinance. The ordinance bans possession of legally-owned semi-auto firearms, with no exception for guns previously owned, or any provision for self-defense.

“Worse, still,” he added, “the ordinance also provided for confiscation and destruction of such firearms and their original capacity magazines. It was outrageous that the ban would levy fines of up to $1,000 a day against anyone who refused to turn in their gun and magazines or move them out of the village. This certainly puts the lie to claims by anti-gunners that ‘nobody is coming to take your guns.’”

Plaintiffs were represented by Glen Ellyn attorney David Sigale.

And now from ISRA:

The Illinois State Rifle Association is pleased to announce the issuing of a Temporary Restraining Order preventing Deerfield Illinois from enforcing their anti-gun ordinance. We will now seek a permanent injunction.

Was This Intended Or Unintended?

Where you place paragraphs in a story makes a difference and can lead to different interpretations of your argument. Today's Wall Street Journal provides an excellent example of it in a story on the flaws of the FBI's National Instant Criminal Background Check System. The story is in the Southeast paper edition of the Journal but does not appear online. The only thing online is an infographic on the failures of the system.

Consider this paragraph.

And then there are private sales. Background checks aren't always required when sales are made by private sellers, those people who make only occasional guns sales from private collections.

It was immediately followed by this paragraph.

Several mass-shooters have purchased guns they shouldn't have been able to buy. 

The story by Ashby Jones then goes on to give examples of how both the Virginia Tech mass-murderer and the Sutherland Spring First Baptist mass-murderer were able to obtain their weapons, though prohibited persons, after passing a FBI NICS check. The story does detail how the Virginia court and the US Air Force had failed to submit the records for inclusion in the FBI's databases.

By placing the second paragraph immediately after the paragraph on private sales, the reader is at first led to believe that the mass-murderers obtained their firearms from a private seller which we know was not the case.

If that second paragraph had added "due to the failure to submit disqualifying records to the NICS database" or "even though they passed background checks", then it would be understood that the killers obtained their firearms due to a failure of the system and not due to the negligence or greed of a private seller.

Is this a case of unintended juxtaposition? Is it a case of tight editing for brevity in the second paragraph? Or is it, more problematically, a case of using the structure of the story to convey an argument for so-called universal background checks.

I don't know but I do know that the wrong impression is initially given by the structure of the story.

If this came from the New York Times or the Washington Post I would say it was intended to mislead. Since the Wall Street Journal tends to be more neutral on firearms issues, I could go either way. Nonetheless, this is a case of the mainstream media, intentionally or unintentionally, pushing the narrative for universal background checks which is wrong.

Not Smart Business (Corrected)

The Illinois State Rifle Association issued the following urgent correction this afternoon regarding the benefit car wash:

URGENT ALERT: CORRECTION TO EARLIER ALERT

On June 5, 2018, the Chicago Tribune’s Naperville Sun ran a story in which the leader of a west suburban gun control organization reported that she was holding a car wash to benefit gun control behind the Bill Kay Chevrolet auto dealership. Naturally, the wording of the article would lead readers to believe that Bill Kay was affiliated with the benefit car wash.

Bill Kay Chevrolet has since contacted the ISRA to report that the dealership is not affiliated with the car wash. Likewise, the Tribune has, on June 11, re-released their story with clarifying language that accurately identifies the location of the benefit car wash.

Now that the Tribune has corrected its article, the ISRA is advising its members that the Bill Kay Auto group is no way involved in the car wash and that gun owners should feel free to keep Bill Kay in mind when shopping for a new or used vehicle.

Bill Kay Auto Group is not so dumb after all. They will NOT be the sponsor of the car wash and is not involved in any way.

Nonetheless, the neo-Red Guard aka Hogg and Co. is coming to Illinois.

Original post below

If you were a gun owner in the Chicagoland area would you really want to support a chain of car dealers that is sponsoring a benefit for anti-gun group? I didn't think so.


The Illinois State Rifle Association sent out an alert about a benefit car wash being held by Bill Kay Chevrolet for Friends Who March of Naperville, Illinois. The dealership is part of the Bill Kay Auto Group which has a number of dealerships around the Chicago area.

From ISRA:

A west suburban auto dealership will be holding a benefit “car wash” to support gun control legislation that, if passed, promises to empty your gun safe. Bill Kay Chevrolet, located on Ogden Avenue in Lisle, will be the site of the June 16th car wash. The event will reportedly kick off at Noon and end around 3:00 PM.

The beneficiary of the Bill Kay event is a cell of extremist gun controllers based in Naperville, IL. The radical group is known for organizing harassment activities against attendees of the DuPage Gun Show and for inciting near-riot conditions during a raucous anti-constitution, anti-freedom demonstration in Downers Grove last March. The gun control group has, as its objective, the banning and confiscation of your lawfully-acquired firearms.

As law-abiding gun owners, we shouldn’t be supporting businesses or other organizations that support and sustain attacks on our 2nd Amendment rights. The Bill Kay Auto Group has chosen to align itself with the gun controllers in their war against your rights as an American citizen. Bill Kay Auto Group’s overt support for gun control should carry consequences.

The Bill Kay Auto Group operates a number of dealerships throughout the Chicagoland area. Those dealerships represent a variety of brands – not just Chevrolet. So, the next time you go shopping for a vehicle, or when booking auto maintenance, remember that Bill Kay is not your friend. Vote with your feet – shop elsewhere.

The Chicago Tribune has more on the event and the featured guests of Friends Who March:

The Naperville town hall is one of the 50 stops on the 20-state Road to Change tour being conducted by David Hogg, Emma Gonzalez, Cameron Kasky, Jaclyn Corin and about two dozen other students from Marjory Stoneman Douglas High School in Parkland, Fla., who experienced the mass shooting at their school in which 17 people were killed in February.

The students reached out to Jax West, president of Friends Who March, to organize a town hall event in the western suburbs because she helped host a March For Our Lives event in Downers Grove...

In addition to the town hall, West is planning a voter drive during a car wash Downers Grove North High School students are hosting with the Parkland students from noon to 3 p.m. June 16 behind the Bill Kay Chevrolet, near Ogden Avenue and Interstate 355 in Lisle.

The League of Women Voters of Downers Grove, Lisle and Woodridge will register people to vote at the event.

The Road to Change tour officially kicks off June 15 in Chicago, where Parkland students be joining a Peace March led by students from St. Sabina Academy.

There is no word if Father Pfleger of St. Sabina's and his armed guard will attend the car wash or "Peace March". Also there is no word whether David Hogg and his neo-Red Guard minions will make a pilgrimage to the grave of Saul Alinsky while in the Chicago area.

People v Berrezueta - More Knife Law Lunacy From New York

The New York Court of Appeals is the highest appellate court in the state of New York. They decided a case last week that is very problematic to everyone who owns an assisted-opening knife in the state. In the case of People v. Berrezueta they declared in a 6-1 decision that a spring-assisted opening knife is a switchblade within the definition of the New York's penal code. The dissent by Judge Jenny Rivera disagreed strongly and pointed out the deficiencies in the majority's argument.

Doug Ritter has more in an alert he sent out this morning:

URGENT New York State WARNING
Are Assisted-Openers Now Illegal Switchblades ?

As if New York wasn't already a confusing legal and regulatory nightmare for honest, law-abiding knife owners, the highest court in the state just upheld, in a one paragraph opinion, the conviction of a person in possession of an assisted opening (spring-assisted) folding knife under the theory that it was an illegal switchblade knife under New York law.

The decision was overwhelming, 6 to 1, but it's worth noting the excellent dissent by Judge Jenny Rivera which is detailed, analytical, logical and very well-reasoned.

Click here to read the decision including her brilliant dissent.

Assisted opening folding knives are widely and routinely carried by millions of law abiding individuals, and given the momentous nature of this decision, certainly affecting hundreds of thousands of pocket knife owners in New York State, a review of the briefs suggests that the seriousness of the issues at stake was not presented to the court. The prosecution fundamentally mischaracterized the nature of the knife as being a switchblade. The significant and fundamental differences between a switchblade and the assisted-opening folder the defendant was carrying were not before the Court.

In addition to completely redefining what a knife's handle is, essentially eliminating the difference between the handle and the blade, the Court disregarded the fundamental difference in how the two types of knives operate - switchblades being automatic (an essential element of the definition) while assisted-openers are not.

Given that this confusion goes against clear historical precedent and that nobody in the real world is likely to interpret that statute in that manner, it creates a trap for all knife owners who would rationally never consider an assisted-opening folder to be a switchblade, especially if they were intimately familiar with plain wording of New York's switchblade statue.

265.00 Weapons Crimes - Firearms and Other Dangerous Weapons Definitions
...
4. "Switchblade Knife" means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife. (emphasis ours)

Regardless of whether we win our current civil rights case against New York City and District Attorney Cyrus Vance, Jr. over their unconstitutionally vague gravity knife prosecutions of those carrying common folding knives, the hundreds of thousands of knife owners who possess an assisted-opening folding knife anywhere in New York state could now be liable to being prosecuted for simply possessing a per se (inherently) illegal switchblade under §265.01, which is a serious crime, a fourth degree misdemeanor with a potential penalty of a year in jail. And, as we have seen far too often in our Federal gravity knife case, anyone who has had a prior conviction, even decades ago, is likely to have the charge against them upgraded to a felony with potentially years of jail time and loss of civil rights.

Actually carrying an assisted-opener will certainly raise the likelihood of arrest and prosecution.

At this juncture we must warn anyone living in New York State, or who visits or travels through New York State, that you risk arrest and jail if you carry an assisted-opening folding knife. Retailers within New York State may want to consider their potential criminal liability in continuing to sell assisted-opening knives.

We'll certainly be looking to find a solution to this problematic decision, but for now, discretion is the better part of valor with regards to assisted-opening folders in New York State.

And, just to be clear, this assisted-opener issue that covers the entire state of New York is entirely separate from New York City's gravity knife arrests and prosecutions; as well as New York City's administrative code prohibiting open carry of a knife (including being clipped to a pocket or "printing") and its under 4-inch blade length limit. Details at: https://kniferights.org/legislative-update/new-york-city-administrative-code-knives/