Firearms Law Seminar - The Final Presentations

Derek DeBrosse did a good job on  firearms rights restoration. 

The big three ways to lose your firearms rights are:

Felons in possession

MCDV 

Mental disabilities 

He discussed the ways to try and get clients' gun rights back:

Expungement

Set Asides 

Pardons

Restorations

Nunc Pro Tunc

Voluntary Applications File

Lawsuits

Having done expungement a for clients, it was a very good presentation that gave me some new and useful ideas.

Ther closing presenter was Johnathan Goldstein, a very dynamic presenter that did a great job to discuss preemption as a way to stop the antis' current attempts at the local level to attack firearms rights.

An excellent and comprehensive look at the Antis current tactics and ways to stop them, as well as the need to carefully watch state legislatures and make sure that preemption legislation is carefully written  and timely passed.

Overall the Seminar was truly excellent and well worth the day.

Firearms Law Seminar - Got Ethics?

Ernest J. Myers gave a talk on Legal Ethics, obviously a very short presentation, right?

Wrong. Lawyers, contrary to popular belief are a rather highly regulated professional snd there's a variety of things as a lawyer that you should not do, and things you should do.  It's a very good idea as a question of competence to know about firearms in order to represent clients about firearms.  As a lawyer dealing with firearms related clients knowing the gun control act and the national firearms act for that matter, not to mention state and local firearms laws is pretty darn vital.

Preventing client crimes, for example can't counsel clients to commit crimes. Instead advise clients what they are doing is against the law and may have  to disclose it if they go through with it.

For example interactions with BATFE, can lead to violating 18 USC 1001(a) - not allowed to conceal material facts, lie or false documents to anyone in executive, legislative or judicial branch of the USA. 

Lots of potential pitfalls for attorneys, not to mention the need to carefully counsel clients that no they should not try to violate the many varied and complex firearms laws.

Firearms Law Seminar - On NFA Trusts And Instructor Liability

Sarah Gervase, NRA's  Assistant General Counsel gave an excellent discussion on trusts including NFA Trusts.

Lots of great information on the effect of 41F and what will happen to NFA Trusts once the new rule takes effect in July.  She so asked the interesting question you know that you will be someday asked by a client - Can I be buried with my gun? Tha answer - It's complicated.

Next, Attorney Brent Weil discussed first and third party liability against firearms instructors.  There's a tremendous influx of new shooters that has occurred over the last 5 years with lots of people needing and seeking training.

Preventing an instructor from committing an act of negligent training is extremely important. Everything from premises liability to accidental discharge, mechanical failures of guns instructors might provide, to inappropriate tactics and wrong legal information given by instructors, as well as passing students that lack proficiency can be extremely bad.  All of this can expose instructors to liability.

So far there have been few lawsuits over negligent training, but it is expected that will increase given the influx in new shooters making their way through the proces of getting firearms.  Also generally instructors do follow the proper curriculum which gives good protection compared to doing your own freestyle SEAL-movie-inspired training regimen.  Make sure the training fits the need, the risk and the student involved. Also having an attorney draft an appropriate release for students to sign before teaching them is absolutely vital.

Both presentations were extremely useful for my practice in counseling clients, including instructor clients.

Firearms Law Seminar - A Dynamic Keynote Speaker

There was an American hero at the podium for the keynote speech:

Yes, that's Col. Oliver North. He gave an excellent speech on the need to protect our armed forces members at military installations and get legislation done to allow them to carry to protect themselves.

He cheerfully noted that the last time he was in a room with so many lawyers it was when the statement "The defendant will please rise".

You could say he gave a very contra-rary view from that held by the current administration.

Quite a compelling and amazing speaker, with a lot of neat details on a variety of things.

Firearms Law Seminar - FFL Compliance

Teresa Ficaretta, a former ATF agent and practicing attorney gave an excellent presentation on ATF Compliance Inspections. Less than 100 licenses are revoked per year and she gave an excellent presentation on preventing that from occurring.

Very useful information for representing FFLs. 

Firearms Law Seminar - The Attack On VA And SSA Beneficiaries

Chris Zeeland of the NRA gave an excellent talk on the Obama administrations executive action on gun control and how the executive branch can impose gun control even in the face of Congressional deadlock or active resistance from Congress.

His presentation started off with the fact that the Gun Control act does not identify what it means to be adjudicated a mental defective under the law.

Test now is danger to self or others or importantly if the beneficiary lacks mental capacity to contract or manage own affairs.

ATF's new proposed rule on those receiving social security benefits based on VA's ruling that mental defective new is on capacity contract or manage affairs  no findings of dangerousness or mental illness is required and can still lose firearms rights in a bureaucratic decision. Do not get due process rights for loss of a fundamental right and must affirmatively establish not a danger to self or others and get a mental evaluation and disprove an assertion the government never had to establish in the first place.

177,000 veterans have been reported under this to NICS as prohibited persons with only 298 appeals.

Now Obama is trying to move this standard to those receiving Social Security benefits.

4.2 millions social security representatives receive payments through representative beneficiaries and would be potentially prohibited persons under this regulation.  

SSA NPRM 81 FR 27059 now has a 5 factor test to apply prospectively allegedly will affect about 75,000 persons per year, and at least looking at underlying basis for disability. Will only report people after 18 but not reached full retirement age - rather under-inclusive - he noted you could be of retirement age and "bat guano crazy" and not be affected which is certainly rather arbitrary. Gives more focus on mental illness but no finding of dangerousness to lose firearms rights. Memory impairment, inflated self-esteem, sleep disturbance all qualify as impairments for losing firearms rights.

Again relief is only after losing rights and must get mental health assessment both present and over preceding 5 years. In other words need to prove not a danger to self or others when government never had to prove that in the first place and there is no pre-deprivation due process on loss of firearms rights.  He noted there are other benefits programs that might also be affected by this executive approach.

Some legislation has been introduced to reform this and provide some protection to both VA and SSA beneficiaries, but some have been blocked already by Democrats such as Senator Durbin in the Senate.

In short this regulation will have far reaching implications and is a definite threat to a large number of Americans' firearms rights.

Firearms Law Seminar - The Action At The Circuit Court Level

Joseph Greenlee - Spoke on how circuit courts have applied the rulings in Heller and MacDonald. There have been 150 post Heller second amendment decisions.  Excellent article and speaker regarding the decisions.

Mr. Greenlee noted that Courts are generally using the 2 part test - does the law implicate the Second Amendment and if yes then heightened scrutiny applies with a look at the severity of burden and whether law affects the core of the Second Amendment.  He gave an excellent overview of the Circuit Court approach since Heller and MacDonald.

Then David Kopel continued with the scrutiny analysis that has been applied to Second Amendment cases.

Opened with noting that today is the anniversary of the passing of the Firearms Owners Protection Act. When it showed up in House, Hughes blocked it but then McClure and Volkmer got a discharge petition to bring it to the floor directly. side form the Hughes amendment it was the most far reaching pro civil rights legislation on gun ownership at the Federal level.

Then he continued the analysis concerning Circuit Court application of Heller and MacDonald.

He Discussed the levels of scrutiny that are typically applied to legislation:

1. Rational basis - not insane, therefore ok. 

2. Intermediate scrutiny

3. Strict Scrutiny

But those three are not the only tests used as there are often subtests and standards. Like the First, the Second Amendment also is undergoing a variety of subtests and standards like the First Amendment analysis that has been used. Noted that prior restraints have been allowed in Second Amendment far beyond what is allowed in First amendment cases such as background checks and permit applications.

The closer to the core of the Second Amendment right, the closer to strict scrutiny we get. 4th Circuit for example had strict scrutiny with regards to arms in the home and intermediate for outside the home. Courts have generally held its a sliding scale with some aspects receiving strict scrutiny.

On this Monday, he noted the  9th Circuit issued a decision after looking at the Alameda County restriction on firearms stores within 500 feet of various things that factually prevented any gun store from opening in the county,  The 9th applied a standard that was not quite strict scrutiny to the law and remanded it to the lower court.

Mr. Kopel noted a key doctrinal question is what does intermediate scrutiny require in this context?

In short there's a lot going on at the Circuit Court level that will continue to affect Second Amendment rights, especially with the uncertainty at the Supreme Court level.

National Firearms Law Seminar

At the NRA National Firearms Law Seminar to learn from some truly brilliant legal minds and excellent speakers.

First speaker was Stephen Halbrook.

Stephen Halbrook -first photo and speaker. Good talk on lower courts in general deliberately ignoring second amendment and heller/Macdonald decisions,and how up until Catano Supreme Court has been ducking dealing with the defiance of Heller and MacDonald. He noted that Garland nominated for the Supreme Court has not exactly had a history as being pre-Second Amendment and in fact has been the opposite.