FIREARMS LAW 101
A Continuing Legal Education Program
of the
Vermont Bar Association
Friday, 25 October 2013
PRESENTER:
Attorney Cindy Hill is an NRA referral attorney for the state of Vermont and
author of Brady Denial? You Can Get Your Guns Back (Paladin Press),
Creative Lawyering: A Handbook for Practice in the 21st Century (XLibris) and
numerous firearms law columns. She has previously presented continuing
education seminars on Firearms Law for the VBA and for the annual meeting
of the National Rifle Association, and represents gun owners in a full range of
legal matters including shooting range noise disputes, Brady Denial appeals,
wrongful possession criminal charges, crimes involving firearms use, firearms
forfeitures, FFL licensing applications, and fish and game cases. Attorney Hill
consults to lawyers across the country regarding their clients’ firearms
licensing and eligibility matters.
© Attorney Cindy Hil 2013 Firearms Law 101
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Why Firearms Law? And Why Now?
Firearms law is presently the cutting edge of Constitutional jurisprudence. With U.S. Supreme
Court cases now holding that the Second Amendment protects an individual right of firearms
possession (at least for limited purposes and in limited places) and incorporating that right via
the Fourteenth Amendment to the states, we are poised on the cusp of a wave of Constitution
litigation which will, in time, sort out parameters of individual rights versus Government
regulation or perceptions of collective security; realms of state authority versus federal authority;
interests of privacy and recordkeeping versus interests of law enforcement; and overarching
philosophies of criminal justice, including questions of labeling, trust, and redemption.
Firearms law pits many citizen’s sense of personal independence and safety against many other
citizen’s sense of collective peace and security, and goes to the heart of the balance of power
between a government and its citizenry. It implicates the role of the United States as a major
world arms dealer, especially in small arms. It invokes current global events like Rwanda,
Srebrenica, Egypt and Syria. In short, American Firearms Law is presently serving as the
platform upon which we are writing the social contract of the present day. An understanding of
the law, issues and controversies in this field will help any legal practitioner to better understand
the context of other legal fields in his or her practice.
And you get to go shooting with your clients, which is always fun.
© Attorney Cindy Hil 2013 Firearms Law 101
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What We’ll Cover:
A. U.S. CONSTITUTION: SECOND AMENDMENT p.4 (30 minutes)
1. What it says
2. U.S. Supreme Court cases regarding and interpreting the Second Amendment
3. Commerce Clause firearms cases
4. Major State Case rulings
B. VERMONT CONSTITUTION, PREEMPTION and SHOOTING RANGE LAWS p. 17 (30 minutes)
1. What Vermont Constitution says about arms
2. Preemption and municipal regulation
3. Shooting range laws
C.
1.
2.
3.
4.
GUN CONTROL ACT of 1968 and AMENDMENTS p. 22 (1 hour)
Federal Gun Control Laws
What is a Firearm?
Who is a prohibited person: the nine prohibition categories
Forfeitures
Questions, then… COFFEE BREAK!
D. BRADY CHECKS p. 45 (1 hour 45 minutes)
1. How they work
2. What a Brady Denial means to your clients.
--Can’t possess firearms under federal definition
--Constructive Possession
`
--Impact on hunting
3. Overturning a Brady Denial
--Correcting erroneous records
--Vermont expungement and pardons
--Out of state convictions
--Administrative appeals to NICS
--Appeal to federal court
--VAF
E. MISCELLANY p. 63 (10 minutes)
1. Toy Guns
2. Firearms in Bankruptcy
What We Won’t Cover Today:
If you’d like to see a Firearms 201 CLE, let the VBA Know!
FFL Licensing Machine Gun regulation Firearms Trusts Fish and Game Laws
Self-Defense Concealed Carry State Licensing State and federal firearms crimes
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Federal sentencing firearms guidelines Use of national guard for firearms enforcement
A. U.S. CONSTITUTION: SECOND AMENDMENT (30 minutes)
1. What it says
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.”
2. U.S. Supreme Court cases regarding and interpreting the Second Amendment
Dred Scott v. Sandford (1857) - The Court ruled that Dred Scott did not enjoy the protection of
the Bill of Rights because of his racial background. The ruling implies that all free men do have
the right to bear arms by indicating what would happen if Scott was indeed afforded full
protection:
"It would give to persons of the negro race, ... the right to enter every other State whenever they
pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms
wherever they went."
United States v. Cruikshank, 92 U.S. 542 (1875) - A post-Civil War case relating to the Ku Klux
Klan depriving freed slaves rights such as freedom of assembly and to bear arms. The court ruled
the application of the First and Second Amendments "was not intended to limit the powers of the
State governments in respect to their own citizens" and "has no other effect than to restrict the
powers of the national government.," Ruled the federal government could not file charges against
citizens in federal court regarding violations of other citizens' constitutional rights—this is a state
police power matter.
Dred Scott and Cruikshank remind us of the fundamentally racist roots of gun control in the United
States – an element which also underpins the political-philosophical arguments regarding firearms
ownership everywhere in the world: people frequently try to disarm groups of people who are deemed
‘other’ or ‘less than’ the privileged groups. For a superb exploration of this issue, please read this
Georgetown University Law Review article by two attorneys I greatly admire, Robert J. Cottrol and
Raymond Diamond:
http://www.guncite.com/journals/cd-recon.html
This article by Clayton Cramer is also informative on this point:
© Attorney Cindy Hil 2013 Firearms Law 101
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http://www.firearmsandliberty.com/cramer.racism.html
Presser v. Illinois, 116 U.S. 252 (1886) - The Court ruled—long before Heller—that the Second
Amendment protects a right of individuals, not militias. The Second Amendment related to an
individual right to bear arms for the good of the United States, as armed citizens could serve as
members of a militia upon being called up by the Government in time of collective need. It
declared that although individuals have the right to keep and bear arms, a state law prohibiting
common citizens from forming personal military organizations, and drilling or parading, is
Constitutional because prohibiting such personal military formations and parades does not limit a
personal right to keep and bear arms:
"We think it clear that there are no sections under consideration, which only forbid bodies of
men to associate together as military organizations, or to drill or parade with arms in cities and
towns unless authorized by law, do not infringe the right of the people to keep and bear arms."
The Court also noted that the Second Amendment only restrained the federal government from
regulating gun ownership, not the individual states:
"The second amendment declares that it shall not be infringed, but this, as has been seen, means no
more than that it shall not be infringed by congress. This is one of the amendments that has no other
effect than to restrict the powers of the national government, leaving the people to look for their
protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City
of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal
legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by
the constitution of the United States."
United States v. Miller, 307 U.S. 174 (1939) –
Miller—a criminal prosecution regarding possession of a short shotgun --was what lawyers refer
to in technical parlance as a crappy case. The defendants, out of resources, demurred at the trial
level on the Constitutional issue, then didn’t show up for or participate in the Supreme Court
argument. What resulted was a U.S. Supreme Court decision that is a muddy mess and has
haunted Second Amendment jurisprudence ever since.
The Court stated in part:
"In the absence of any evidence tending to show that possession or use of a "shotgun having a
barrel of less than eighteen inches in length" at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment
© Attorney Cindy Hil 2013 Firearms Law 101
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guarantees the right to keep and bear such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary military equipment, or that its use could
contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. The
signification attributed to the term Militia appears from the debates in the Convention, the
history and legislation of Colonies and States, and the writings of approved commentators.
These show plainly enough that the Militia comprised all males physically capable of acting in
concert for the common defense. 'A body of citizens enrolled for military discipline.' And further,
that ordinarily when called for service these men were expected to appear bearing arms supplied
by themselves and of the kind in common use at the time."'
Lewis v. United States, 445 U.S. 55 (1980) - Ruling that the Congress may prohibit felons from
possessing firearms:
"This Court has recognized repeatedly that a legislature constitutionally may prohibit a
convicted felon from engaging in activities far more fundamental than the possession of a
firearm....These legislative restrictions on the use of firearms are neither based upon
constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties.
See United States v. Miller, 307 U. S. 174, 307 U. S. 178 (1939) (the Second Amendment
guarantees no right to keep and bear a firearm that does not have "some reasonable relationship
to the preservation or efficiency of a well regulated militia')"
United States v. Verdugo-Urquidez 494 U.S. 259 (1990) - A case dealing with nonresident aliens
and the Fourth Amendment, but led to a discussion of who are "the People" when referred to in
the Constitution:
"[T]he people' seems to have been a term of art employed in select parts of the Constitution. The
Preamble declares that the Constitution is ordained and established by 'the people of the United
States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the
Ninth and Tenth Amendments provide that certain rights and powers are retained by and
reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . .
abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1
('The House of Representatives shall be composed of Members chosen every second Year by the
people of the several States') (emphasis added). While this textual exegesis is by no means
conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and
Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community."
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District of Columbia v. Heller, 554 U.S. 570 (2008) - The Court ruled the Second Amendment to
reference an individual right, holding:
"The Second Amendment guarantees an individual right to possess a firearm unconnected with
service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense
within the home."
http://www.law.cornell.edu/supct/html/07-290.ZS.html
McDonald v. Chicago (2010) - The Court ruled that the Second Amendment was incorporated
against state and local governments, through the Due Process Clause of the Fourteenth
Amendment. In the decision, the Court said:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the
home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a
provision of the Bill of Rights that protects a right that is fundamental from an American
perspective applies equally to the Federal Government and the States. We therefore hold that the
Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right
recognized in Heller.[3]
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
***********************
A Fundamental Right:
Supreme Court’s Chicago Ruling Takes a Frank Look at Core American Values
Cindy Hill, Esq.
What listening to a fiery and uplifting sermon can do for the heart and soul of the pious, reading a
pointed and insightful court decision do for a lawyer. Such is the case with the decision of the U.S.
Supreme Court in McDonald v. City of Chicago, Docket 08-1521, decided on June 28, 2010.
This 214-page decision with its numerous concurring and dissenting opinions may seem a daunting
read, but it is well worth the effort, not just for its ultimate point—that states as well as the federal
government must respect the individual right to bear firearms in the home for self-protection—but
for its well-crafted extended discussion of the core Constitutional precepts that form the heart of
classic American values. The irony is that while private firearms ownership has presently been
associated culturally with the more conservative or at least right-leaning side of the political
spectrum, most of the core Constitutional precepts that are used here by the U.S. Supreme Court to
support the right to that private firearms ownership are what many gun owners might consider
liberal, or perhaps even libertarian.
In the Heller decision, which declared that private firearms ownership is an individual right upon
which the federal government should not unduly intrude, the U.S. Supreme Court focused at length
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on the history of American legal and cultural involvement with firearms ownership. That discussion
included a pointed acknowledgement of some of the racially-motivated underpinnings of gun
control laws in America, but the emphasis of the decision as a whole was on legal territory wellfamiliar to most gun owners: The castle doctrine that says everyone should be able to secure their
home against criminal intruders, and the will of the founding fathers to ensure that an armed
populace counterbalances the potential tyranny of government. The key question in Heller was
whether the right to bear arms enshrined in the Second Amendment to the United States
Constitution did indeed protect an individual right, or whether it only protected the right of home
guards or citizen militias to engage in militarized protection of the state. The Supreme Court decided
squarely in favor of the former – a decision which passed without question or substantive revision in
the Chicago decision.
At issue in Chicago was rather the question of whether that right was among those—nearly all the
rights in the first ten Amendments to the U.S. Constitution—which are also enforceable against
State government regulation, and not just federal government regulation. (At issue were firearms
prohibitions enacted by the City of Chicago and another nearby community; municipal ordinances
are treated for legal review purposes as State regulation because municipalities are creatures of the
state, created and authorized by state law and having only those powers allotted to them by State law
and State-issued municipal charters.)
The Supreme Court here evaluated the question of incorporation of the Second Amendment right
into those rights protected against state incursion through the Fourteenth Amendment by applying
the yardstick set out in a series of prior Supreme Court decisions which addressed protections of
criminal due process and protections against racial discrimination and inequality: Is the right of an
individual to bear personal firearms a “right fundamental to the Nation’s scheme of ordered liberty,”
and is it “deeply rooted in this Nation’s history and tradition.” In legal shorthand, does the Second
Amendment secure a “fundamental right?”
In answering that question in the affirmative, the Supreme Court placed the right to bear arms
squarely and deliberately amidst a bevy of rights that illustrate core American Constitutional values.
Two of these that the Court dwelt on are racial equality, and a criminal due process protection called
the Exclusionary Rule.
The Court expounded at length on the systematic efforts of various State and private political
organizations to disarm, and then physically hurt or kill, African-American citizens in the post Civil
War era, and then squarely and plainly states that part of the purpose behind the Civil Rights Act
was to ensure the security of black Americans’ right to keep and bear firearms. The Court cites both
Democrat and Republic platforms and speeches of the late 1800’s in support of individual firearms
ownership as a means of protecting life and personal liberty. The Court points out that this need is
not a mere historical fact, but relevant in our present society: In the municipalities at issue in this
lawsuit, as in many other locations in the United States, the majority of victims of violent crime are
black, and government entities are not providing them with the personal protection which could be
best provided by their own possession of a firearm. Striving for equal protection of the laws for all
citizens regardless of race or other superficial divisions is, the Supreme Court reminds us, a core
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American value, protected by the Constitution, and that includes the right of all citizens to self
protection.
The Court dispelled Chicago’s argument that the Second Amendment is different than other civil or
Constitutional rights because guns are things that can be used to cause harm. The Court notes that
many of our rights may result in harmful or even violent situations. They point to the exclusionary
rule – a point of criminal due process which holds that evidence illegally obtained is inadmissible—
to demonstrate that a violent criminal may well be turned loose if his or her Constitutional rights
against unlawful search and seizure are not protected.
For those who might tend to think that a law-abiding citizen ought to be able to have a gun, but that
criminals are not deserving of rights, the U.S. Supreme Court’s argument provides a sharp slap-back:
Those criminal due process rights are fundamental rights that protect individuals against the excesses
and oppression of government and individuals – just like your firearms rights.
One of the oddest and most interesting arguments made by the City of Chicago was that a right
can’t be considered a “fundamental right” unless it is “recognized by all temperate and civilized
governments, from a deep and universal sense of their justice.” Chicago’s brief went on to argue that
since England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and other civilized
nations ban private firearms, or at least handgun, ownership, that American courts can not consider
the Second Amendment to impart a fundamental right.
Ptooey, said the Supreme Court. This is America. Many of those countries also don’t recognize trial
by jury, or free speech (it’s illegal to criticize the British Queen, for example), and many of them
establish official state religions. Do you really want them to serve as the yardstick for determining
American Constitutional rights? (This point of argument also calls to mind those flaming diatribes
floating around the internet advocating for applying the dire laws of other countries regarding
treatment of individuals who cross the border without proper documentation – Do you really think
we should be applying the laws of Iran, or Turkey, or Cambodia, to individuals within the United
States? Be careful what you wish for.) There is a reason we fought the Revolution and, as the
bumper sticker says, that reason ain’t duck hunting: It’s the Constitution.
Gun owners celebrating their victory in the Chicago case should not ignore the broader importance of
the decision – that it is a powerful victory for all American civil and Constitutional rights. If you are
going to argue that criminal due process rights or equal protection under the laws should be
curtailed for certain people or situations, then you better be prepared to surrender an equal
proportion of your firearms rights as well. The moral of the Constitutional law sermon that is the
Chicago decision: Support the civil liberties, rights, and equal protections of the law for all Americans,
because standing together—even with those you might have personal disagreement with—is the
ultimate core American value. Amen to that.
*end*
*********************
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3. Commerce Clause
United States v. Lopez, 514 U.S. 549 (1995) - In the first Supreme Court case since the New Deal
to set limits on the Congress's power under the Commerce Clause, the Court declared the GunFree School Zones Act of 1990 unconstitutional.
United States v. Rybar (3d Cir. 1996) - The United States Court of Appeals for the Third Circuit
ruled Congress did have the power to regulate possession of homemade machine guns under the
Commerce Clause, later contradicted by the Ninth Circuit, but ultimately reaffirmed by the
Supreme Court. The Third Circuit made this decision 2-1, with future Supreme Court Justice
Samuel Alito in dissent.
United States v. Stewart (348 F.3d 1132 (2003) and 451 F.3d 1071 (2006) - In 2003, the United
States Court of Appeals for the Ninth Circuit struck down Stewart's conviction on a charge of
possession of an unregistered machinegun (18 U.S.C. §922(o)) on Commerce Clause grounds.
Following the Supreme Court's decision in Gonzales v. Raich, the Court ordered Stewart
remanded to the Ninth Circuit for further consideration in light of the decision in Raich. The
Ninth Circuit then upheld Stewart's conviction, concluding "We therefore hold that Congress
had a rational basis for concluding that in the aggregate, possession of homemade machineguns
could substantially affect interstate commerce in machineguns."
******************
The Commerce Clause:
Will Firearms Freedom Acts Buck the Federal Tide?
Cindy Ellen Hill, Esq.
On October 1, 2009, a law went into effect in Montana declaring that all firearms manufactured
within the state and used only within the state are not considered to be in interstate commerce, and
thus are not subject to federal registration or regulation. A similar statute has also recently been
passed in Tennessee, and a Firearms Freedom Act website, http://firearmsfreedomact.com, declares
that such laws are ‘sweeping the nation.’
Will Firearms Freedom Act advocates accomplish their goal of direct confrontation with the
proclaimed tyranny of the Commerce Clause of the United States Constitution? Or will their lofty
goals flutter and fade away, like a flag left too long under the inevitable, unstoppable rays of the sun?
The Commerce Clause Unveiled
The Commerce Clause is an enumerated power – a concrete, listed authority granted to Congress in
the body of the Constitution. It is found at Article One Section 8 Clause 3 of the United States
© Attorney Cindy Hil 2013 Firearms Law 101
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Constitution, and states, “[The Congress shall have the power] to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes.” The Commerce Clause in put
into full effect by the Necessary and Proper Clause, which is found at Article One Section 8 Clause
18, which avers that Congress is authorized to adopt all laws necessary and proper to carry out the
exercise of their enumerated powers.
The Commerce Clause was originally intended as a mini-NAFTA, precluding states from blocking
their borders against the products being sold by another state, or from imposing undue tariffs and
taxes of goods from other states. In this guise, the Commerce Clause was used as a tool of
federalism, facilitating the development of the nation from insular, territorial entities to one thriving,
prosperous world power.
In the ante-bellum era, the ploughshare of the Commerce Clause turned to a sword swung by
captains of industry. Courts declared repeatedly that they could not touch the worker abuses, the
dangerous conditions, or the environmental devastation of factories and mines because
manufacturing and mining were local affairs, not interstate matters – even when the raw materials of
manufactory were brought in from other states, and the products left the factory gates for sale at
some distant venue.
Then the pendulum swung, and suddenly the Commerce Clause was everywhere. The Supreme
Court declared that the Commerce Clause could apply to anything that merely affected interstate
commerce, directly or indirectly, and left it to the limits of Congress’s collective imagination to
determine what that might be. The Commerce Clause became a key anti-discrimination tool in the
Civil Rights Movement, allowing Congress to declare that no entity engaged in business anywhere in
the U.S. could discriminate based on race or religion. If the tires on your company truck, or the
toilet paper in your office bathroom stall came from out of state, then you were subject to federal
regulation under the authority of the Commerce Clause.
This brilliant and effective tool for routing shameful discrimination from resistant corners of the
country was also a double-edged sword, which increasingly turned and twisted to slice at small
businesses, farmers, and others outside the main stream of American Main Street. Courts went so far
as to declare that a person could not grow wheat for their own consumption, since wheat was a
regulated commodity, and an individual who grew their own was effecting interstate commerce
because it meant they weren’t buying their bread or flour from someone else.
The pendulum swung back again in 1995, in a firearms case. The U.S. Supreme Court ruled in
United States v. Lopez, 514 US 549, that Congress had gone too far in banning firearms from school
zones on the basis that firearms near schools might lead to violence, and violence leads to decline in
property values and community quality of life, and that leads to decline in neighborhood investment
and loss of sales, and thus effects interstate commerce.
The Court ruled that Congress had to rein itself in, and that the Commerce Clause only authorized
regulation of the channels of interstate commerce, the instrumentalities, people or goods in
interstate commerce, and activities that substantially affect interstate commerce, holding, “To
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uphold the Government's contentions here, we have to pile inference upon inference in a manner
that would bid fair to convert congressional authority under the Commerce Clause to a general
police power of the sort retained by the States. Admittedly, some of our prior cases have taken long
steps down that road, giving great deference to congressional action. The broad language in these
opinions has suggested the possibility of additional expansion, but we decline here to proceed any
further. To do so would require us to conclude that the Constitution's enumeration of powers does
not presuppose something not enumerated, and that there never will be a distinction between what
is truly national and what is truly local. This we are unwilling to do.”
The freedoms-loving public rejoiced, but Congress hardly batted an eyelash, as it had other tools in
its toolbox – mainly money. The era of federal-supremacy-by-check remains in full force, with
Congress and federal agencies tying the grant of federal money for school, roads, bridges, law
enforcement, libraries, construction, and so on, to state and local compliance with Congressionallydesired schemes and programs.
Meanwhile, the federal government continues to maintain its authority to regulate most manufacture
and sale of alcohol, tobacco, firearms, and explosives under old-fashioned Commerce Clause
principles: very, very few of these items are manufactured entirely of in-state materials for exclusive
in-state use. Which brings us to the question of the utility of a statute which declares those rare
items to be out of Commerce Clause jurisdiction.
Build Your Own: What’s the Commerce Clause Got to Do With It?
According to no less a source than the BATF itself, it is perfectly legal for a person to make their
own firearm. http://www.atf.gov/firearms/building_a_firearm.pdf That is: if you are a person
otherwise lawful to possess firearms; and you are not building a machine gun or destructive device,
or are not attempting to circumvent restrictions on the importation of certain militarized weapons
by putting them together yourself out of component parts; and it’s intended for your own personal
use, not for sale or distribution; then go right ahead, no one’s gonna stop you, or require that you
get a manufacturer’s license, or register the firearm, or pay a manufacturer’s tax, or anything like
that.
Oh, but check your state laws, particularly their definition of zip guns, because in most states it’s
okay to manufacture a real gun, just don’t attach a nail to a car antennae by a rubber band, not that
cars have antennaes that work for such things any more, so no one under 25 reading this has any
idea what I’m talking about. And if you buy a frame or receiver instead of machining one yourself,
you will have to go through a Brady check or whatever permitting laws are in effect in your
jurisdiction to buy that.
So, at present, any person in Montana, or anywhere else, lawfully entitled to possess firearms, can go
ahead and make themselves one, and Congress doesn’t have any authority over it, even without the
Firearms Freedom Act–just like you can brew your own beer in your basement without a brewers
license or roll your own cigarettes, just as long as you’re not doing so on a commercial basis. So
what does the Firearms Freedom statute actually do?
© Attorney Cindy Hil 2013 Firearms Law 101
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The point of impact for the Firearms Freedom Act is small – but potentially powerful: it expands
the present sphere of lack of Congressional power over firearms built for personal use, to firearms
made in the state for sale within the state. It effectively declares, full circle, that the Commerce
Clause does not apply to manufactory, which is a local activity, unless or until the product of that
manufactory crosses state lines.
This raises an interesting question for anyone looking to manufacture and sell guns in Montana. The
statute says that such firearms must be stamped, Made in Montana. But as a manufacturer, how am
I going to ensure that the guns I make and sell remain in the state? I’d want at a minimum to require
the purchasers to present proof of Montana residency, and perhaps sign an affidavit that they know
and understand this firearm is never to leave the state – exactly the kind of ‘papers-please’
transaction that advocates of such a statute are trying to avoid. But once one of those guns crosses
state lines by sale to a tourist – and come on, who among us will not be lining up at the state borders
to buy a gun stamped Made in Montana? How cool is that? Can I collect all 50 states?– down comes
the Commerce Clause, wham. In short, it’s an enormous risk for a commercial manufacturer to
undertake.
Yet, for the Firearms Freedom Act to have any practical effect on the present state of the law, that
risk will have to be taken by someone willing to commercially manufacture and sell a Montana
firearm, then undergo being charged with the federal crime of illegal firearms manufacturing, and
raise the state statute in their defense. Firearms advocates and state’s-rights enthusiasts will be
watching carefully to see if the appropriate brave soul comes forward, willing to front legal fees and
risk federal jail time in exchange for striking a blow back against the aging dragon of the Commerce
Clause.
Then we’ll watch to see whether Congress withholds federal funding for any state with a Firearms
Freedom Act – and whether the states with such laws give them up and pony up, or cave in to the
power of the federal exchequer.
The Net Impact: A Web of Local Economy
If Firearms Freedom Acts withstand legal challenge, they may well allow small, local manufacturers
of firearms to thrive. This is a good thing – and, ironically, it’s an interesting parallel to the
otherwise-seen-as-liberal localvore movements which advocate for strengthening local sources of
food, clothing, wood products, and other goods. For example, across the nation, localvore groups
are advocating remarkably similar legislation to allow local butchering and sale of meat without
being subject to onerous or cost-prohibitive federal inspection. When these movements intersect,
economic stability and food security may well come to mean local venison or turkey gained at the
business end of a locally-manufactured fine-quality firearm.
The Firearms Freedom Acts may not dismantle the federal government and emasculate the
Commerce Clause – but they may well be a viable, effective piece of a broader cultural movement
away from mass consumerism and towards local economies and self-sufficiency. And that would
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truly be a patriotic revolution.
*****************
4. Major State Court Decisions
Bliss v. Commonwealth (1822, KY) addressed the right to bear arms pursuant to Art. 10, Sec. 23
of the Second Constitution of Kentucky (1799):"That the right of the citizens to bear arms in
defence of themselves and the state, shall not be questioned." This was interpreted to include the
right to carry a concealed sword in a cane.
The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of
the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The
Bliss ruling was overturned by constitutional amendment with Section 26 in Kentucky's Third
Constitution (1850) banning the future carrying of concealed weapons, while still asserting that
the bearing of arms in defense of themselves and the state was an individual and collective right
in the Commonwealth of Kentucky. This recognition, has remained to the present day in the
Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that
guarantees "The right to bear arms in defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent persons from carrying concealed
weapons.”
Aymette v. State, 21Tenn. 154, 156 (1840), Aymette is about bowie knives and civilized warfare.
The Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that
‘the free white men of this State, have a right to keep and bear arms for their common defence.’
Explaining that the provision was adopted with the same goals as the Federal Constitution’s
Second Amendment , the court wrote: “The words ‘bear arms’ … have reference to their military
use, and were not employed to mean wearing them about the person as part of the dress. As the
object for which the right to keep and bear arms is secured, is of general and public nature, to be
exercised by the people in a body, for their common defence, so the arms, the right to keep
which is secured, are such as are usually employed in civilized warfare, and that constitute the
ordinary military equipment.”
1. The act of 1837-8, ch. 137, sec. 2, which prohibits any person from wearing any bowie knife,
or Arkansas tooth-pick under his clothes or concealed about his person does not conflict with the
26th section of the first article of the bill of rights, securing to the free white citizens the right to
keep and bear arms for their common defense.
2. The arms, the right to keep and bear which is secured by the constitution, are such as are
usually employed in civilized warfare, and constitute the ordinary military equipment; the
legislature have the power to prohibit the keeping or wearing weapons dangerous to the peace
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and safety of the citizens, and which are not usual in civilized warfare. (Apparently they don’t
consider bowie knives part of ‘civilized warfare.’)
3. The right to keep and bear arms for the common defense is a great political right. It respects
the citizens on the one hand, and the rulers on the other; and although this right must be
inviolably preserved, it does not follow that the legislature is prohibited from passing laws
regulating the manner in which these arms may be employed.
Nunn v. Georgia (Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)). The Georgia Supreme Court ruled
that a state law ban on handguns was an unconstitutional violation of the Second Amendment
This was the first gun control measure to be overturned on second amendment grounds.The
Supreme Court in its ruling in Heller v. District of Columbia said "Nunn" Perfectly captured the
in which the operative clause of the Second amendment furthered the purpose announced in the
prefatory clause.
“The right of the whole people, old and young, men, women and boys, and not militia only, to
keep and bear arms of every description, and not such merely as are used by the militia, shall not
be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important
end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to
the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the
Constitution, and void, which contravenes this right, originally belonging to our forefathers,
trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the
revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated
conspicuously in our own Magna Carta!”
In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based,
political right, reading of the right to bear arms under state law, and upheld the 21st section of
the second article of the Arkansas Constitution that declared, "that the free white men of this
State shall have a right to keep and bear arms for their common defense", while rejecting a
challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a
concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of
the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane
concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment."
In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial
interpretation. The Kansas high court declared: "That the provision in question applies only to
the right to bear arms as a member of the state militia, or some other military organization
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provided for by law, is also apparent from the second amendment to the federal Constitution,
which says: 'A well regulated militia, being necessary to the security of a free state, the right of
the people to keep and bear arms shall not be infringed.'"
In 2013, the Illinois Supreme Court in People v. Aguilar held that a total ban on carrying
firearms outside the home violated the Second Amendment and was unconstitutional. Applying
Heller, McDonald, and Moore v. Madigan (a Seventh Circuit decision), the Illinois Supreme
Court overturned the conviction of Aguilar, stating that the right to self-defense was at the core
of the Second Amendment.
Illinois v. Aguilar:
http://www.state.il.us/court/Opinions/SupremeCourt/2013/112116.pdf
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B. VERMONT CONSTITUTION, PREEMPTION and
SHOOTING RANGE LAWS (30 minutes)
1. What the Vermont Constitution says about arms
Constitution of 1777
Section 1 Article IX. That every member of society hath a right to be protected in the enjoyment of life,
liberty and property, and therefore is bound to contribute his proportion towards the expense of the
protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a
man's property can be justly taken from him, or applied to public uses, without his own consent, or that
of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be
justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such
as they have, in like manner, assented to, for their common good.
Article XV. That the people have a right to bear arms for the defence of the themselves and the State;
and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up;
and that the military should be kept under strict subordination to, and governed by, the civil power.
Section 5
The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence, under
such regulations, restrictions and exceptions, as the General Assembly shall, by law, direct; reserving
always to the people, the right of choosing their colonels of militia, and all commissioned officers under
that rank, in such manner, and as often, as by the said laws shall be directed.
Constitution of 1786
Section 1 Article X. That every member of society hath a right to be protected in the enjoyment of life,
liberty and property, and therefore is bound to contribute his proportion towards the expense of [the]
that protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of
a man's property can be justly taken from him, or applied to public uses, without his own consent, [or
that of his legal representatives] or that of the Representative Body of the Freemen; nor can any man,
who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such
equivalent; nor are the people bound by any law, but such as they have in like manner, assented to for
their common good. And previous to any law being made to raise a tax, the purpose for which it is to be
raised, ought to appear evident to the Legislature to be of more service to community than the money
would be, if not collected.
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Article XVIII. That the people have a right to bear arms for the defence of the themselves and the State;
and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and
that the military should be kept under strict subordination to, and governed by, the civil power.
Section XIX The [freemen] inhabitants of this commonwealth shall be trained and armed for its defence,
under such regulations, restrictions, and exceptions, as the General Assembly shall, by law, direct.
[reserving always to the people, the right of choosing their colonels of militia, and all commissioned
officers under that rank, in such manner, and as often, as by the said laws shall be directed] The several
companies of militia shall, as often as vacancies happen, elect their captains and other inferior officers;
and the captains and subalterns shall nominate and recommend the field officers of their respective
regiments, who shall appoint their staff officers.
Constitution of 1793
Section 1 Article 9 That every member of society hath a right to be protected in the enjoyment of life,
liberty, and property, and therefore is bound to contribute his proportion towards the expense of that
protection, and yield his personal service, when necessary, or an equivalent thereto, but no part of [a
man's] any person's property can be justly taken from him or applied to public uses, without his own
consent, or that of the Representative Body of the freemen, nor can any man who is conscientiously
scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the
people bound by any law but such as they have in like manner assented to, for their common good: and
previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear
evident to the Legislature to be of more service to community than the money would be if not collected.
Section 1 Article 16 That the people have a right to bear arms for the defence of themselves and the
State--and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept
up; and that the military should be kept under strict subordination to and governed by the civil power.
Section 22
The inhabitants of this State shall be trained and armed for its defence, under such regulations,
restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the
Legislature of this State, [as the General Assembly shall, by law,] shall direct. The several companies of
Militia shall, as often as vacancies happen, elect their Captain and other Officers, and the Captain and
Subalterns shall nominate and recommend the field officers of their respective regiments, who shall
appoint their staff Officers.
Section 40
The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they
hold, and on other lands not enclosed; and in like manner to fish in all boatable and other waters (not
private property) under proper regulations, to be hereafter made and provided by the General
Assembly.
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Constitution of 1793 as amended through present
Section 1
Article 9. [Citizens' rights and duties in the state; bearing arms; taxation]
That every member of society hath a right to be protected in the enjoyment of life, liberty, and
property, and therefore is bound to contribute the member's proportion towards the expence of
that protection, and yield personal service, when necessary, or an equivalent thereto, but no part
of any person's property can be justly taken, or applied to public uses, without the person's own
consent, or that of the Representative Body, nor can any person who is conscientiously
scrupulous of bearing arms, be justly compelled thereto, if such person will pay such equivalent;
nor are the people bound by any law but such as they have in like manner assented to, for their
common good: and previous to any law being made to raise a tax, the purpose for which it is to
be raised ought to appear evident to the Legislature to be of more service to community than the
money would be if not collected.
Article 16. [Right to bear arms; standing armies; military power subordinate to civil]
That the people have a right to bear arms for the defence of themselves and the State--and as
standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that
the military should be kept under strict subordination to and governed by the civil power.
General Provisions
§ 67. [HUNTING; FOWLING AND FISHING]
The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands
they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other
waters (not private property) under proper regulations, to be made and provided by the General
Assembly.
2. Preemption statute and municipal regulation
Title 24
Section 2291 (8) To regulate or prohibit the use or discharge, but not possession of, firearms within the
municipality or specified portions thereof, provided that an ordinance adopted under this subdivision
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shall be consistent with section 2295 of this title and shall not prohibit, reduce, or limit discharge at any
existing sport shooting range, as that term is defined in 10 V.S.A. § 5227.
§ 2295. Authority of municipal and county governments to regulate firearms, ammunition,
hunting, fishing and trapping
Except as otherwise provided by law, no town, city or incorporated village, by ordinance,
resolution or other enactment, shall directly regulate hunting, fishing and trapping or the
possession, ownership, transportation, transfer, sale, purchase, carrying, licensing or registration
of traps, firearms, ammunition or components of firearms or ammunition. This section shall not
limit the powers conferred upon a town, city or incorporated village under section 2291(8) of this
title. The provisions of this section shall supersede any inconsistent provisions of a municipal
charter. (Added 1987, No. 178 (Adj. Sess.), eff. May 9, 1988.)
--As of this writing, the City of Burlington is holding hearings on sweeping firearms regulations,
and intends to request that the Vermont Legislature amend their charter to allow this regulation.
They have passed prior gun bans that did not make it to the Legislature; Montpelier passed
something similar that the Legislature did not pick up. Prior ordinances in Barre and Rutland
were successfully challenged by citizens.
3. Shooting Range Regulation in Vermont
10 VSA § 5227. Sport shooting ranges; municipal and state authority
(a) "Sport shooting range" or "range" means an area designed and operated for the use of
archery, rifles, shotguns, pistols, skeet, trap, black powder, or any other similar sport shooting.
(b) The owner or operator of a sport shooting range, and a person lawfully using the range,
who is in substantial compliance with any noise use condition of any issued municipal or state
land use permit otherwise required by law shall not be subject to any civil liability for damages
or any injunctive relief resulting from noise or noise pollution, notwithstanding any provision of
law to the contrary.
(c) If no municipal or state land use permit is otherwise required by law, then the owner or
operator of the range and any person lawfully using the range shall not be subject to any civil
liability for damages or any injunctive relief relating to noise or noise pollution.
(d) Nothing in this section shall prohibit or limit the authority of a municipality or the state to
enforce any condition of a lawfully issued and otherwise required permit.
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(e)(1) In the event that the owner, operator, or user of a range is not afforded the protection set
forth in subsection (b) or (c) of this section, this subsection shall apply. A nuisance claim against
a range may only be brought by an owner of property abutting the range. The range shall have a
rebuttable presumption that the range does not constitute any form of nuisance if the range meets
the following conditions:
(A) the range was established prior to the acquisition of the property owned by the
person bringing the nuisance claim; and
(B) the frequency of the shooting or other alleged nuisance activity at the range has not
significantly increased since acquisition of the property owned by the person bringing the
nuisance claim.
(2) The presumption that the range does not constitute a nuisance may be rebutted only by
an abutting property owner showing that the activity has a noxious and significant interference
with the use and enjoyment of the abutting property.
(f) Prior to use of a sport shooting range after dark for purposes of training conducted by a
federal, state, county, or municipal law enforcement agency, the sport shooting range shall notify
those homeowners and businesses with property abutting the range that have requested such
notice from the range.
(g) If any subsection of this section is held invalid, the invalidity does not affect the other
subsections of this section that can be given effect without the invalid subsection, and for this
purpose, the subsections of this section are severable. (Added 1991, No. 20; amended 2001, No.
61, § 71, eff. June 16, 2001; 2005, No. 173 (Adj. Sess.), § 1, eff. May 22, 2006.)
10 VSA § 5227a. Sport shooting range alternative dispute resolution
Upon request of a homeowner or business that owns property abutting a sport shooting range,
a range shall, at least once, attempt to resolve through mediation an issue or dispute that the
homeowner or business has concerning operation of the range. The parties to such mediation
may agree upon the use of a mediator to assist in the resolution of the agreed upon issue or
dispute, and the parties shall share the cost of the mediator. If the parties to the mediation are
unable to resolve the relevant issue or dispute through mediation, the parties may agree to submit
the issue or dispute to binding arbitration pursuant to chapter 192 of Title 12 and shall share the
cost of the arbitration. (Added 2005, No. 173 (Adj. Sess.), § 2, eff. May 22, 2006.)
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C. GUN CONTROL ACT of 1968 and AMENDMENTS (1 hour)
1. Federal Gun Control Laws
The National Firearms Act of 1934 was the nation’s first ‘gun control’ statute. (26 USC Chapter
53) Al Capone, 1929 St. Valentine’s Day Massacre in Lincoln Park in Chicago, most notorious use
of Thompson submachine guns, mowed down 7 people in an attempt by Capone to do away
with the rival Moran gang. Capone’s shooters are often described as having been disguised and
costumed as police officers – though some assert that they actually were police (an interesting
point to consider today when viewing footage of, say, police officers in Egypt firing on
crowds…). So why did it take until 1934? The gangs like Capone’s had too much power,
Congress didn’t dare pass a law on their machine guns and short shotguns until Prohibition was
repealed and Capone and his ilk were in prison. Capone, like many other gangland lords, had
been taken down by the U.S. Treasury department who went after the whiskey runners on
income tax issues. The National Firearms Act gave the Treasury strict control over “Title II”
weapons – machine guns, short shotguns, short rifles, and odd concealed devices like palm
guns etc.
The Gun Control Act of 1968 was the next major firearms statute, and established the
regulation of all firearms (as defined) in interstate commerce. This commenced the licensing of
Federal Firearms Dealers, and established most of the categories of persons prohibited from
possessing firearms. The Firearm Owners Protection Act of 1986 made some adjustments to
the Gun Control Act, bringing some oversight and control over ATF in its regulation of FFLs,
enacting a ‘safe passage’ provision which says if a firearms owner travels through intervening
states with a firearm which is legal at the beginning and end locations of the trip, and the
firearm is unloaded, with firearm and ammunition safely and separately stored such as in a
locked box, and only brief rest and food stops are made in between, that person can not be
prosecuted for unlawful firearms possession in the intervening states. The Firearm Owners
Protection Act also clarified the language of several of the definitions of prohibited persons,
and declared it illegal for the government to maintain a registry of firearms purchases other
than the Title II weapons listed in the National Firearms Act of 1934. A controversial last-minute
amendment to the Act also banned civilian ownership of all machine guns manufactured after
the 1986 date of adoption.
Like the National Firearms Act of 1943, the Gun Control Act was very much a product of its
times. The major political assassinations and the Civil Rights Act of 1968 played a major role in
bringing about this gun control statute.
The Brady Handgun Violence Prevention Act of 1993 started as a 5-day waiting period for
handgun purchases, requiring the chief local law enforcement official of the community in
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which the purchaser resides to conduct a background check to determine whether the
purchaser was a prohibited person. On challenge by a Vermont sheriff, the portion of the
statute requiring local law enforcement officials to engage in this federal mandate was struck
down on federalism grounds. Printz v. United States, 521 US 989 (1997). This statute quickly
transmogrophied to encompass all firearms purchases, to involve massing funding efforts
requiring states to bring their criminal records and other databases up to federal standards, and
created the National Insta-Check System, a massive combined set of cross-referenced
databases in which FBI personnel search for information about would-be firearms purchasers.
This handgun violence prevention act also quickly changed to encompass rifles and shotguns as
well.
The Violent Crime Control and Law Enforcement Act of 1994 was also called the Federal
Assault Weapons Ban. There had been no definition of ‘assault weapons’ before the statute’s
inception, and the statutory definition was awkward and based primarily on aesthetic
characteristics. Basically, a semi-automatic rifle that was mean-looking – military-ish rather
than sporting-ish – was an ‘assault weapon.’ The assault weapons ban sunsetted in September
2004 and was not re-enacted. After the school shooting in Connecticut, there was public
discussion of re-instituting the Assault Weapons Ban as well as a more modest magazine
capacity limitation.
The Lautenberg Amendment, also called the Domestic Violence Offender Gun Ban, was an
amendment to the 1997 Omnibus Appropriations Act. It prohibits firearms possession by
persons previously convicted of a misdemeanor crime of domestic violence, or who have a
family-court restraining order in place. The Lautenberg Amendment has been challenged on
numerous grounds, including ex post facto, and has consistently been held Constitutional. The
courts engage in a legal fiction that the removal of a person’s firearms today for having the
status of being a person convicted of a misdemeanor twenty or thirty years ago does not
comprise an ex post facto punishment, stating that the person is not being punished again for
their long-ago act, but rather for the new act of today being in possession of firearms while
having on their record this long-ago conviction. I have, unsuccessfully, raised several times in
the federal district court the argument that the Lautenberg Amendment comprises a Bill of
Attainder, making a list of individual people who are unlawful due to a particular status. I am
unaware of whether this argument has been raised by other attorneys elsewhere.
The Firearms Owners Protection Act, Brady Bill and Lautenberg Amendments have all been
incorporated into the Gun Control Act of 1968 codification at 18 U.S.C. Section 921 et. seq,
which is excerpted in your materials.
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2. What is a firearm
Federal Definitions – 18 U.S.C. Section 921. Also see definitions in the BATF regulations and in
the IRS statute.
18 USC 921:
(3) The term “firearm” means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not include an antique firearm.
(4) The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is
generally recognized as particularly suitable for sporting purposes) by whatever name known which
will, or which may be readily converted to, expel a projectile by the action of an explosive or other
propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any
destructive device described in subparagraph (A) or (B) and from which a destructive device may be
readily assembled.
The term “destructive device” shall not include any device which is neither designed nor redesigned
for use as a weapon; any device, although originally designed for use as a weapon, which is
redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus
ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section
4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely
to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting,
recreational or cultural purposes.
(5) The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to
be fired from the shoulder and designed or redesigned and made or remade to use the energy of an
explosive to fire through a smooth bore either a number of ball shot or a single projectile for each
single pull of the trigger.
(6) The term “short-barreled shotgun” means a shotgun having one or more barrels less than
eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification
or otherwise) if such a weapon as modified has an overall length of less than twenty-six inches.
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(7) The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be
fired from the shoulder and designed or redesigned and made or remade to use the energy of an
explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.
(8) The term “short-barreled rifle” means a rifle having one or more barrels less than sixteen inches
in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if
such weapon, as modified, has an overall length of less than twenty-six inches.
…
(10) The term “manufacturer” means any person engaged in the business of manufacturing firearms
or ammunition for purposes of sale or distribution; and the term “licensed manufacturer” means any
such person licensed under the provisions of this chapter.
…
(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of
ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the
United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to
use black powder, or a black powder substitute, and which cannot use fixed ammunition. For
purposes of this subparagraph, the term “antique firearm” shall not include any weapon which
incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading
weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by
replacing the barrel, bolt, breechblock, or any combination thereof.
--State Definitions
14 V.S.A. Section 4016, the statute regarding weapons in court, states:
(3) "Firearm" means any weapon, whether loaded or unloaded, which will expel a projectile by the
action of an explosive and includes any weapon commonly referred to as a pistol, revolver, rifle, gun,
machine gun or shotgun.
Note that this section of the Vermont statutes does not refer to the antique or black powder exception,
or interstate commerce, or any other restriction. Taken literally, it seems to mean that if you take your
black powder pistol into a state court, you could be charged with having a firearm in state court, even
though it would not legally be considered a firearm elsewhere.
Additionally, most of the Vermont criminal statutes don’t refer to firearms, but to weapons or deadly
weapons. A black powder pistol or rifle is not a firearm by federal legal definition, but it could easily be
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perceived of as a deadly weapon.
The statute regarding guns at school, however, adopts the federal definition:
T. 16 § 1166. Possession of a firearm at school. (a) In this section, the terms "to school" and "firearm"
shall have the same meaning that the terms have in the 18 U.S.C. § 921. However, the school board
may expand the definitions provided they remain consistent with federal law.
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3. Who is a prohibited person: the nine prohibition categories
*****
The Nine Federal Disqualifiers
Cindy Ellen Hill, Esq.
The federal Gun Control Act of 1968 lists nine reasons that make it illegal for a person to ship,
transport, possess or recieve firearms. Any one of these disqualifications will land you a Brady
Denial if you try to purchase a firearm; possessing a gun while you’re disqualified will land you
in federal prison. This means it’s extremely important that every gun owner understand these
nine disqualifications. We’ll start here with the first two – ‘felony’ conviction, and fugitive from
justice – and look to the domestic violence and non-criminal disqualifiers in the next few
columns.
i. “Felonies”
Despite popular perception, there is not a law that prohibits being a ‘felon in possession.’ I was
disturbed that the U.S. Supreme Court in Heller persisted in referencing the prohibition of
firearms to ‘felons’ as well as to the ‘mentally ill.’ This is not the language of the statute.
The actual word “felony” doesn’t appear in the first, and largest, federal disqualifier. The
statute disqualifies any person “who has been convicted in any court of any crime with a
potential punishment exceeding one year.” 18 U.S.C. Section 922(g)(1). This means that even if
you only received probation or a minor fine, or a suspended sentence, or even no sentence at
all, if you the court could legally have imposed a sentence of more than one year, the conviction
might count as a disqualifying conviction under federal law.
Now, lawyers are fond of saying this or that might happen, but in this case, the vagueness is
warranted. While the words “crime with a potential punishment exceeding one year” are plain
English, if you look at the statutory definitions section, you’ll find it’s not that simple.
--Business Crimes Exception
In the Gun Control Act, the term “crime punishable by imprisonment for a term exceeding one
year” does not include “any Federal or State offenses pertaining to antitrust violations, unfair
trade practices, restraints of trade, or other similar offenses relating to the regulation of
business practices.” This means that, even if you served fifteen years in jail, a white-collar
business-type felony conviction does not prohibit you from purchasing and possessing firearms
under federal law. Stealing four tires worth over a hundred dollars when you were eighteen
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may well get you prohibited from owning guns for the rest of your life; embezzling millions
from a pension fund may not.
--Certain State Misdemeanors
The second exemption baffles many folks, including criminal defense lawyers who ought to
know better. It exempts “any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. Section
921(a)(20).”
This means that conviction for something which state law calls a misdemeanor does not
disqualify you from firearms possession under federal law if the state misdemeanor has a
maximum potential sentence of two years or less. However, if the state misdemeanor has a
maximum potential sentence of two years and one day or more, you are prohibited from
possessing firearms under federal law – even though you had a misdemeanor, not a felony,
conviction.
This means a misdemeanor DWI#1 conviction from a state like Vermont, which carries a
potential sentence of less than two years, may mean you can have guns, while a misdemeanor
DWI#1 conviction from a state like Massachusetts, which carries a three year sentence, means
you are prohibited by federal law from having guns – even if the facts of the cases were exactly
the same in both states.
--What Constitutes a Conviction
The Gun Control Act says, “What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings were held.” Like the
definition of ‘felony’ this isn’t as clear as it might sound.
Many states “file” or “defer” criminal charges, the intention being that if the person doesn’t get
into trouble during some period of time, the charge will be dismissed or a not-guilty judgement
entered. These charges can stay open indefinitely, and if the person ever picks up another
criminal charge, the prior open charge is activated. For purposes of a firearms purchase (as well
as for federal crimes sentencing or any other reason where a person’s criminal history has to be
assessed), it is often extremely difficult to determine whether something should be considered
a “conviction”. Often the question comes down to a matter of informal court procedures in the
court where the charge was first filed.
--Whether the Conviction is Expunged
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The Gun Control Act also says that “Any conviction which has been expunged, or set aside, or
for which a person has been pardoned or has had civil rights restored shall not be considered a
conviction for purposes of this chapter, unless such pardon, expungement, or restoration of
civil rights expressly provides that the person may not ship, transport, possess, or receive
firearms.”
18 U.S.C. Section 921(a)(20). BATF regulations add the following to Congress’ definition: “or
unless the person is prohibited by the law of the jurisdiction in which the proceedings were
held from receiving or possessing any firearms.” 27 CFR Section 478.11.
Expungements are usually a court procedure for removing a criminal conviction from your
record; pardons, or ‘executive clemency’, are legal ‘forgiveness’ issues by the governor of the
state where someone was convicted or, in the case of a federal crime, by the President. Each
state usually has clear application processes for these two avenues, and the terms of the
expungement or pardon will state whether firearms rights will continue to be limited or not.
The question of restoration of civil rights, however, is more complex.
Vermont has a limited expungement/sealing statute for convictions—adult convictions—
occurring when the individual was a minor. BUT CHECK your client’s age and the statutes
carefully – the age of majority in Vermont has changed several times. Additionally, Vermont has
recently adopted a discretionary misdemeanor expungement statute. Of limited use to persons
seeking to have their firearms rights restored, there are instances in which it could be useful for
a variety of purposes.
--Restoration of Civil Rights
In many states, you lose certain civil rights, such as the right to vote, to serve in office, or to sit
on a jury, at the time of a criminal conviction. If you lose one or more of these rights, then get
them back (either automatically at the end of a term of probation and parole, or after a set
period of time, or by some application procedure) your conviction no longer counts under
federal law to preclude you from firearms possession. If you are convicted of armed robbery in
a state which prohibits you from voting until you are satisfactorily discharged from parole, after
you are discharged from parole and get your voting rights back, you are also permitted by
federal law to purchase and possess firearms.
Other states do not take away these fundamental rights of citizenship when a person is
convicted of a crime. If you are convicted of a felony (like stealing four tires worth over a
hundred dollars when you were eighteen) in a state like Vermont which never takes away any
of your rights of citizenship due to a conviction, you can never get those rights reinstated, and
thus even long after you’re released from parole or probation, you are prohibited by federal
law from possessing a firearm.
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This prohibition also applies if you are ‘under indictment’ or otherwise presently charged with a
crime that might be punishable by a year or more in jail. And the gun control folks wonder how
it is that someone can be a “convicted felon” and not know it.
Now that Heller and MacDonald have ruled that the Second Amendment protects an individual
– and possibly fundamental – civil right, it will be interesting to see how litigation evolves
regarding Vermont’s removal, then restoration, of rights to have weapons for persons on
probation. Will the restoration of weapons rights in individual Vermont criminal cases
constitute a restoration of Civil Rights under federal firearms law? Stay tuned…
ii. Fugitive from Justice
The second disqualification from firearms possession under the Gun Control Act is anyone “who
is a fugitive from justice.” 18 U.S.C. Section 922(g)(2). A “fugitive from justice” is ‘any person
who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any
criminal proceeding.” 18 U.S.C. Section 921(a)(15). BATF regulations again expand this, adding,
“This term also includes any person who knows that misdemeanor or felony charges are
pending against such person and who leaves the State of prosecution.” 27 CFR Section 478.11.
A ‘fugitive from justice’ usually means someone for whom there is a pending arrest warrant.
Warrants can be issued whenever someone does not come into court when required, including
your failure to pay a speeding ticket you got while on vacation in a distant state (I won’t tell you
how it is that I know that...). But under the Gun Control Act, you do not even need to be the
person charged with a crime. If you are scheduled to be a witness in a criminal proceeding, and
leave the state, you can also be considered a fugitive from justice.
New technology in updated databases regarding traffic violations from state to state – such
that now you can’t renew your Vermont license until you pay that 20 year old ticket in Arizona
– may drastically expand this definition of who is a ‘fugitive from justice.’
iii. Drug User or Addict
Federal law prohibits firearm possession by any person “who is an unlawful user of or addicted
to any controlled substance.” 18 U.S.C. Section 922(g)(3). BATF regulations make it clear that
you need not have been convicted for drug use or possession to be disqualified:
“A person who uses a controlled substance and has lost the power of self-control with
reference to the use of controlled substance; and any person who is a current user of a
controlled substance in a manner other than as prescribed by a licensed physician. Such use is
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not limited to the use of drugs on a particular day, or within a matter or days or weeks before,
but rather that the unlawful use has occurred recently enough to indicate that the individual is
actively engaged in such conduct. A person may be an unlawful current user of a controlled
substance even though the substance is not being used at the precise time the person seeks to
acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn
from evidence of a recent use or possession of a controlled substance or a pattern of use or
possession that reasonably covers the present time, e.g. a conviction for use or possession of a
controlled substance within the past year; multiple arrests for such offenses within the past 5
years if the most recent arrest occurred within the past year; or persons found through a drug
test to use a controlled substance unlawfully, provided that the test was administered within
the past year. For a current or former member of the Armed Forces, an inference of current use
may be drawn from recent disciplinary or other administrative action based on confirmed drug
use, e.g. court martial conviction, nonjudicial punishment, or an administrative discharge based
on drug use or drug rehabilitation failure.” 27 CFR Section 478.11.
Although BATF goes to some lengths to say criminal convictions (including misdemeanors) for
drug possession can be evidence that someone is a “known drug user,” it is clear that mere
arrests will also result in a firearms prohibition. The regulation also leaves open the fact that
this prohibition can be based on any number of other sources of information.
One source can be your criminal record – even if you have no history of arrests – and a related
police database which includes files for victims and witnesses. Police can put considerably more
information into your record than simply your arrests and convictions. These databases include
places to enter descriptors including physical appearance, tattoos, or recognizable
characteristics, as well as statements about character, including things like “known gang
member” or “known cocaine user.”
Before the National Instant Check System went into effect, the chief local law enforcement
official (CLEO) of the town where the person applying for a gun lived gave the approval or
denial of the Brady background check. This disqualification was fertile ground for abuse, as
some CLEOs arbitrarily deemed all long-haired Harley-riding citizens or others who irked them
to be “pot smokers” or other users of controlled substances. These people had virtually no
recourse, other than to move – which was probably the CLEOs hope in the first place.
For a while, there were fewer denials seem to be based on this particular disqualification. In
the last two years, there has been a sharp uptick in this denial basis, and those who are denied
on these grounds still have little recourse. This is one of the more frustrating denials to try to
overturn, as well as one which seems highly offensive to our standards of justice and innocence
until proven guilty.
iv. Adjudication of Mental Defect
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The Gun Control Act also prohibits firearms possession by any person “who has been
adjudicated as a mental defective or who has been committed to a mental institution”. 18
U.S.C. Section 922(g)(4). The interrelationship of the mental health realm and criminal justice is
knotty, thorny, and intense. Today, more mentally ill people are in jails than hospitals:
http://www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pd
f Suicide rates in the US are skyrocketing, and along with them are many suicide-by-cop or
blaze-of-glory mass shooting incidents. These incidents rightfully raise fearful and passionate
public concerns, though those concerns are usually channeled in the direction of gun control,
and to a lesser extent to the interface of gun control and mental health, and to an even lesser
extent to a stark analysis of our mental health treatment system and approaches.
One frequent public cry after a mass shooting incident is, How could someone who is mentally
ill get a firearm? The U.S. Supreme Court in Heller exacerbated this public sentiment by noting
that it’s lawful to prohibit the mentally ill from possessing firearms. But who is ‘mentally ill’?
And how would the government know? One in ten Americans is on anti-depressant medication;
70% of Americans are on some kind of medication and quite a few of those are ‘scrips for antianxiety and other mood or mental health related drugs. If persons on prescriptions for mental
and emotional issues are deemed ‘mentally ill’ (such that they require medication), then a
prohibition against the mentally ill having firearms will effectively disarm about half of the
population.
The statute, however, does NOT prohibit firearms possession by the mentally ill – despite the
U.S. Supreme Court verbiage to the contrary. This disqualifier does present a conundrum
however: since health records are subject to strict legal privacy requirements, how would such
information get into the NICS databases?
The answer lies in part on the grounds that this prohibition hinges on adjudication in a court, or
a court’s action in committing a person to a mental institution. The Bureau of Alcohol, Tobacco,
and Firearms regulations define ‘adjudicated as a mental defective’ as:
(a) a determination by a court, board, commission, or other lawful authority that a person, as a
result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) is a danger to himself or to others; or, (2) lacks the mental capacity to contract or manage
his own affairs.
(b) The term shall include (1) a finding of insanity by a court in a criminal case; and (2) Those
persons found incompetent to stand trial or found not guilty by reason of lack of mental
responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C.
Sections 850a, 876b. 27 CFR Section 478.11
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BATF regulations define ‘committed to a mental institution’ to mean: “A formal commitment of
a person to a mental institution by a court, board, commission, or other lawful authority. The
term includes a commitment to a mental institution involuntarily. The term includes
commitment for mental defectiveness or mental illness. It also includes commitments for other
reasons, such as for drug use. The term does not include a person in a mental institution for
observation or a voluntary admission to a mental institution.” 27 CFR Section 478.11
The portion of the BATF regulation which refers to commitment for drug use would seem to be
a large expansion on Congress’ intention from the statute, and would include hundreds of
thousands of people who at some time or another were sent to rehab by a court. Many of
those instances result from court proceedings that go through a diversion or pardon process
and don’t wind up with a criminal conviction, and thus wouldn’t qualify in the felon-inpossession category.
The armed forces Veterans Administration recently uploaded nearly 100,000 mental health
records of veterans into the NICS database. Many veterans who received medical discharges
from the military did so on the grounds of mental health issues which were determined in
military judicial or administrative hearings; some of these no doubt mentioned drug use, and
we are likely to see these records be used as grounds for Brady denials to these mostly-Vietnam
era veterans. It appears that NICS and BATF are now considering this to be an adjudication of
mental defect under the gun control statute, which would seem to be effectively a new
regulation or a new interpretation of the statute without going through the public due process
of adopting a new regulation, but this issue has yet to be addressed in federal court.
In 2005, President Bush announced his intention to create a national database of health
treatment records, which no doubt will be accessible to NICS, resulting in more disqualifications
under this section.
See my extensive article, below this section, on ‘Peace of Mind’ regarding the Mental Health
firearms prohibition in the wake of the VTech shooting.
v. Dishonorable Discharge
The Gun Control Act prohibition attaches to anyone “who has been discharged from the Armed
Forces under dishonorable conditions.” 18 U.S.C. Section 922(g)(6). There are numerous levels
of discharge from the Armed Services, many of which are other than honorable. Only the
lowest level, actual dishonorable discharge, triggers the federal firearm prohibition. One theory
is that a dishonorable discharge is the functional equivalent of a criminal conviction, since it
results only after military adjudication, and is a fairly rare occurrence usually based on criminal
behavior. It’s also a nearly impossible disqualification to challenge, unless the dishonorable
discharge was pardoned. However, there are numerous non-criminal grounds which could
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stand as the basis for a dishonorable discharge. While I haven’t seen a case with these facts, for
example, in theory a person might wind up prohibited from possessing a firearm because they
are gay – if their homosexuality led to a dishonorable discharge from the military.
vi. Renounced U.S. Citizenship
Federal firearms law disqualifies anyone “who, having been a citizen of the United States, has
renounced his citizenship.” 18 U.S. C. Section 922(g)(7). BATF regulations explain that “A person
has renounced his U.S. citizenship if the person, having been a citizen of the United States, has
renounced citizenship either (1) before a diplomatic or consular officer of the United States in a
foreign state... or (2) before an officer designated by the Attorney General when the United
States is in a state of war...” . 27 CFR Section 478.11
I’ve never actually seen this disqualification applied yet. The BATF regulation on this point
makes it clear that this prohibition is not be applied to drunken declarations made in disgust at
presidential election results or the final score of the Army-Navy football game. But only to
those who formally renounce citizenship or join an enemy military force. Current policies of the
Patriot Act and Bush Administration’s War Against Terror, however, raise new questions
regarding who qualifies as a member of an ‘enemy military force,’ and we are likely to see
Americans prosecuted for violating this prohibition relative in the near future.
vii.Illegal Aliens
Firearms possession is prohibited by any person who, “being an alien, is illegally or unlawfully in
the United States; or, .... has been admitted to the United States under a non-immigrant visa.”
18 U.S.C. Section 922(g)(5). There are exceptions for foreign diplomats and other members of
foreign governments, as well as for people coming to the U.S. for lawful hunting or sporting
events who have the proper permits.
The difference between ‘unlawful’ and ‘illegal’ aliens has gotten lost in recent media coverage
of immigrant labor issues. Under present statutes, it is an ‘illegal’ act to cross the border
without reporting to a border station; usually a very minor misdemeanor. However, many of
the persons who the news media refers to as ‘illegal aliens’ are merely ‘unlawful’. They initially
enter the United States legally – by reporting as tourists, or getting a temporary work or
student visa – and then overstay the end date of their authorization. This is merely a civil, not
criminal, violation. ‘Non-immigrant visas’ refer to temporary visas, for example those used by
seasonal agricultural workers, or students.
viii. Domestic Abuse Prevention Order
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The eighth federal disqualifier precludes firearms possession by anyone who is subject to a
family court abuse prevention order – an order issued in a large percentage of divorce cases,
which in different states can be called a temporary restraining order, domestic restraining
order, family court stay-away order, or by a variety of other names – that:
A)
B)
C)
was issued after a hearing of which such person received actual notice and at which
such person had an opportunity to participate;
restrains such person from harassing, stalking, or threatening an intimate partner of
such person or child of such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of bodily injury to the partner or
child; and,
i. Includes a finding that such person represents a credible threat to the physical safety
of such intimate partner or child, or
ii. By its terms explicitly prohibits the use, attempted use or threatened use of physical
force against such intimate partner or child that would reasonably be expected to cause
bodily injury. 18 U.S.C. Section 922(g)(8).
An ‘intimate partner’ for purposes of this statute is defined as ‘the spouse of the person, a
former spouse of the person, an individual who is a parent of a child with the person, and an
individual who cohabitates or has cohabitated with the person’. 18 U.S.C. Section 921. Thus a
stay-away order from someone you are merely dating, or any other kind of no-trespass order
such as from a workplace or school, would not disqualify you from possessing firearms.
The present statute is an improvement over its original version, which included restraining
orders of which the subject had no notice (‘ex parte’ orders) and orders which included no
suggestions of a threat of violence; however, the minimal requirements of this amended
version continue to be included in thousands of ‘boilerplate’ orders issued daily in nearly every
family court across the nation, painting with a very broad brush.
ix. Misdemeanor Crime of Domestic Violence
The last current federal firearms disqualification is for any person ‘who has been convicted in a
court of a misdemeanor crime of domestic violence’. 18 U.S.C. Section 922(g)(9). This is the
most recently added federal disqualifier, and possibly the most controversial. It is certainly the
most confusing, starting with being defined as “Except as provided in subparagraph C” when
there is no subparagraph C. 18 U.S.C. Section 921(a)(33). (In the huge volume of state and
federal statutes and regulations that abound, such errors are not infrequent, and add
significantly to the difficulty which lawyers, not to mention non-lawyer citizens, have in trying
to figure out what the law may be on any given subject.)
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The missing subparagraph C aside, “the term ‘misdemeanor crime of domestic violence’ means
an offense that (i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the
use or attempted use of physical force, or the threatened use of a deadly weapon, committed
by a current or former spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabitating with or has cohabitated with
the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.”
The most confusing aspect of this prohibition is that it does not matter what the misdemeanor
conviction is called under state law, as long as the facts underlying the conviction involve the
use or attempted use of force, or the threatened use of a deadly weapon, and someone who
qualifies as a domestic partner. This means that convictions for disorderly conduct or simple
assault, if they involve, say, shoving the person you live with, or even publicly spanking a child,
would count under the federal gun control statute to prohibit you from firearms possession.
The statute that you are convicted under does not need to contain reference to a domestic
relationship for the conviction to disqualify you under the gun control statutes; if the
underlying facts involved a domestic partner and physical force, the conviction counts, no
matter what it is called.
On the other hand, ironically, there are convictions for misdemeanors called ‘domestic assaults’
which do not trigger the federal firearms prohibition. In many states, the criminal definition of
‘assault’ can involve intimidation or making the victim afraid, but not necessarily involve
physical force or the threat of a deadly weapon. Many people across the country have been
convicted of something called ‘domestic assault’ for telling their soon-to-be-ex-spouse that if
they don’t stop yelling, they will go jump off a bridge, or will call the social service agency to
take away the children, or will tell their boss that they do drugs. None of these situations
involve physical force or threatened use of a deadly weapon, and even though they are called
‘domestic assault,’ should not prohibit someone from possessing firearms.
As a practical matter, convictions which might implicate this prohibition often cause Brady
background check delays, as NICS needs to delve into the facts in the file to determine if the
case ‘counts’ or not. And since misdemeanor domestic violence firearms prohibitions appeals
are just beginning to come through the federal courts, and it is too soon to determine where
federal law will draw the line as to what meets this prohibition and what doesn’t.
Many states previously treated misdemeanor domestic cases as ‘infractions’ tickets similarly to
fish and game or traffic tickets; citation was to a magistrate court, a small fine was paid, and the
person charged went on their way. This was used as a law enforcement tool to break up family
arguments that warranted some helpful intervention to let tempers cool but did not warrant
criminal court charges. Federal law now considers such ‘infractions’ to be ‘misdemeanors,’
prohibiting the people involved – who had no reason at the time to consider the situation
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anything other than a minor embarrassment and inconvenience – from exercising their
Constitutional firearms rights.
The misdemeanor domestic violence disqualification is applied retroactively. No matter how
long ago your domestic violence conviction occurred, if the conviction meets this
disqualification, you are prohibited from possessing firearms.
Additional State Law Disqualifiers
States may impose additional firearms disqualifications which are more stringent than the
federal law. State laws commonly preclude from firearms possession anyone who is on
probation or parole, even for a crime which does not qualify as a federal “felony” or “domestic
violence misdemeanor”. States with firearms permits have disqualifiers for people who do not
have a permit or have had their permit revoked. Some states list additional disqualifying
misdemeanors, such as drug or violence convictions. You will have to check your state statutes
carefully or review your state disqualifiers with an attorney licensed in your state to be certain
you understand your state’s firearms disqualifications.
*************
PEACE OF MIND:
If You Do Not Find It Within Yourself,
You’ll Never Find It In The Mental Defectives Firearm Prohibition
Cindy Ellen Hill, Esq.
Bad Things Happen. In fact, lots of them. Some of those bad things are downright obscene
travesties, the perpetuation of which should shame every member of humanity who knows about it.
For example: The present continuing genocide in Darfur, Sudan.
Some of those bad things are sad and yet romantic in an abstract sort of way that is almost
entertaining if you’re not too close to it. For example: The fate of Anna Nicole Smith’s baby.
And some of those bad things are tragic. They make you cry and hold your head in grief. They
make you nauseous from the rippling wave of pain they send out through hundreds of lives. They
make you angry. They make you wonder how it could have been avoided. They make you swear it
will never happen again. For example: The VTech mass murder.
How Did He Get the Gun?
There were two handguns, actually. Both purchased legally. Sort of. I’ll get back to that in a
minute. Both were purchased through lawful channels, through licensed firearms dealers, involving
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NICS background checks, which were passed. They weren’t stolen, they weren’t bought through
private sales or so-called ‘gun show loopholes’ (another term for ‘private sales’), and there was
nothing illegal about the nature of the firearms themselves, they were fairly ordinary common
models that had not been modified to increase their firepower, capacity, or accuracy.
But were the purchases legal? In the wave of anxiety and anguish that followed the shooting, I got
many calls asking me how an ‘immigrant’ could have gotten a gun. There seemed to be an
instantaneous xenophobic reaction just hoping to be able to attribute this horrendous incident to the
fact that the murderer was a ‘foreigner.’ Given the sheer number of murders committed in this
country every day by genuine red-blooded Americans killing fellow Americans – including just
about all our most notorious serial killers, snipers, cult-poison-pourers, and bombers (outside of 911) – this reaction was woefully misplaced.
Federal law precludes NON-IMMIGRANT aliens – those here on temporary, non-immigrant visas
such as seasonal agricultural workers – and ILLEGAL aliens from possessing firearms. But lawful
immigrants, those here on immigrant visas and those who, like the murderer here, attained
permanent resident alien status, are vested with many of the rights and protections of American law,
including being free to share in the important liberty, right, and responsibility of firearms ownership.
As to the two questions on the ATF form 4473 regarding alien status – are you an alien illegally in
the United States, and are you a nonimmigrant alien, the VTech murderer correctly answered ‘No’ to
both.
The ATF form 4473 question of concern here, however, is Question f: Have you ever been
adjudicated mentally defective (which includes having been adjudicated incompetent to manage your
own affairs) or have you ever been committed to a mental institution? The Vtech murderer
answered “No” to this question, but given information which has been publicly released regarding
his mental and behavioural health history, media speculation is now rampant as to whether this
question should have been answered in the affirmative. If so, then the gun purchases were illegal –
it is a crime to commit perjury, e.g. lie, in your answers on form 4473. And it begs the question of
why he did not receive a Brady denial on these purchases.
Federal Firearms Law Regarding Mental Defectives.
Federal law prohibits firearms possession by any person “ who has been adjudicated as a mental
defective or who has been committed to a mental institution”. 18 U.S.C. Section 922(g)(4). Like the
prohibition against gun ownership by persons who are known drug users, this disqualifier relies
heavily on the personal knowledge of law enforcement officials. It also presents a conundrum: since
health records generally, and mental health records in particular, are subject to strict legal privacy
requirements, how would such information get into the NICS databases?
The answer lies in part on the grounds that this prohibition hinges on the adjudication of mental
defect in a court, or a court’s action in committing a person to a mental institution. Let me repeat
that, because it is a very important point that has been lost in the recent media furor on this subject:
The federal firearms prohibition relates to COURT records regarding someone’s mental health, and
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NOT to their ‘mental health records’ held by their health treatment professionals. Look at the
firearms prohibition regarding domestic restraining orders. NICS looks for COURT records issuing
restraining orders – NOT marriage counselor records that discuss marital arguments, and not
psychiatrist’s treatment records that discuss fantasies about punching your spouse in the nose.
These records are protected by medical privacy laws, and although it often seems that we are headed
in this direction, we don’t yet actually have thought police.
In theory at least, if not always in practice, those court records, other than juvenile records, should
be public, and there should be at least some safeguard against abuse available due to the fact that
such records are public, and that the findings were subjected to due process protections of notice,
opportunity to be heard, and opportunity for appeal. And also in theory, this statute will preclude
dangerously violent persons from gaining access to firearms and wreaking havoc on the lives of
themselves and others.
Nice theory. But like all such sounds-too-good-to-be-true theories, this one is highly flawed.
Unfortunately it’s highly flawed in several different directions and I haven’t heard a good way to
make it any less flawed. In fact, tinkering might well make it worse, but you never know.
Under Narrow and Over Broad
If the goal of this particular federal firearms prohibition is to keep guns away from persons who are
mentally ill, then the statute is woefully under-inclusive, so under-inclusive as to make it virtually
worthless. There are hundreds, probably thousands, probably hundreds of thousands of people with
anger management issues, drug addictions (unlawful or prescription), and even homicidal paranoid
schizophrenia, who never manage to interface with the court system. Or if they do, on issues like
drunk and disorderly or failure to pay child support, the actual status of their mental health is never
adjudicated. You can check yourself into a treatment facility or rehab, you can go to psychologists 5
days a week and check in with them hourly on a pager, you can retreat up into the mountains and
refuse to ever talk to anyone again, you can be stark raving lunatic mad and think you’re a werewolf
(I had a client who thought he was a glass of orange juice), but if a court has not adjudicated your
mental status or committed you to a mental institution, you’re good to go as far as the federal gun
statutes are concerned.
If I’m sounding facetious on this point, let me be quite clear: I don’t have any problem with the
overly-narrow aspect of the statute, in fact, I’d be much happier if it were narrower still, if not gone
altogether. As far as I can tell, acts of horrendous violence are committed primarily by people with a
propensity for committing acts of horrendous violence. With luck, they engage in some smaller acts
of violence first and wind up with a court-adjudicated action that helps preclude them from moving
on to a big sweeping act of violence. But I’ve rarely seen someone who suffers from the delusion of
thinking they are a glass of orange juice be disposed towards committing horrendous acts of
violence. Orange juice doesn’t do that sort of thing. (I have however seen persons presenting a
good display of being law-abiding upstanding citizens with no history of mental illness or criminal
convictions turn out to be serial killers – and some of them, like Tim McVeigh, didn’t even use guns.
I think I said this before, but Bad Things Happen.)
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And if the goal of this statute is to protect the rights of law-abiding citizens who would not commit
an act of violence, and not sweep them into the net of prohibitions, then it’s also over-broad,
especially as interpreted by ATF regulations, which are so much broader than the Congressional
intent as stated in the statute that I have trouble understanding why they have not fallen to legal
challenge yet.
The BATF Regulation
Bureau of Alcohol, Tobacco, and Firearms regulations define ‘adjudicated as a mental defective’ as:
(a) a determination by a court, board, commission, or other lawful authority that a person, as
a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1)
is a danger to himself or to others; or, (2) lacks the mental capacity to contract or manage his own
affairs. (b) The term shall include (1) a finding of insanity by a court in a criminal case; and (2) Those
persons found incompetent to stand trial or found not guilty by reason of lack of mental
responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C.
Sections 850a, 876b. 27 CFR Section 478.11
The BATF regulations define ‘committed to a mental institution’ to mean: A formal commitment of
a person to a mental institution by a court, board, commission, or other lawful authority. The term
includes a commitment to a mental institution involuntarily. The term includes commitment for
mental defectiveness or mental illness. It also includes commitments for other reasons, such as for
drug use. The term does not include a person in a mental institution for observation or a voluntary
admission to a mental institution. 27 CFR Section 478.11
On the face of it, the agency regulation is sweepingly broader than the statute. The statute doesn’t
mention ‘subnormal intelligence’ or ‘disease’ – is BATF depriving persons of a Constitutional right
on the basis of a condition that constitutes a disability under the Americans with Disabilities Act?
Wouldn’t that be an actionable civil rights violation?
The statute doesn’t mention drug treatment – is BATF saying that anyone sent by a court to drug or
alcohol rehab is now a ‘prohibited person’ in terms of firearms possession? If so, I don’t know
where we are going to get the money to build the jails to house all these people.
And the statute doesn’t mention findings by a ‘board, commission, or other lawful authority’ either,
only adjudications. Does that include a hospital board or the board of a mental health institution?
A school administration? A tribunal arbitrating a union grievance? Do these findings meet the test
of due process sufficiently to warrant forming the basis for deprivation of Constitutional rights?
But the BATF regulation says that it doesn’t include people sent to mental institutions for
observation – and yet when a court sends a person for a short observation and evaluation stay at a
mental institution, it is almost universally on the grounds of a preliminary finding that the person, in
the short term, presents a danger to themselves or others based upon a preliminary emergency
screening, usually done by local clinic or social service agency personnel. So if they get sent for
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observation, and the conclusion is that they do not present an ongoing danger, so they are released
to outpatient care or simply released all together, what is the status of the initial court determination
that resulted in the observation visit?
According to media reports (for example, “Cho Could Have Been Denied Firearms” by Michael
Luo, NYTimes News Service April 21, 2007, appearing in a multitude of media sources) a
2005Virginia state court declaration that Cho was a danger to himself, and directing him to attend
outpatient mental health counseling, rendered Cho a ‘prohibited person’ under federal firearms law,
and had Virginia entered this record into NICS, it would have yielded a Brady denial.
But the devil is in the details of these records, and without the actual records and the actual court
order, and a working knowledge of what that declaration meant, I find it impossible to conclude
whether this event left Cho meeting the definition of a prohibited person or not. Because the end
result was a recommendation for outpatient counseling, it is hard to say what that court declaration
was. It may well have been a preliminary, temporary finding which sent Cho to observation and
evaluation, and that observation and evaluation resulted in lifting the finding and recommending
merely outpatient treatment rather than institutional commitment.
That same media report states, “Currently, only 22 states submit any mental health records to the
federal National Instant Criminal Background Check System, the FBI said in a statement yesterday.
Virginia is the leading state in reporting disqualifications based on mental health criteria for the
NICS system, the statement said.” So if Virginia missed Cho’s disqualification, might it stand to
reason that in fact whatever the court order was in his case did not count as a disqualification?
Our Lady of Peace.
Just a few short years ago, no states at all were reporting mental health adjudications to NICS. Then
Congress – with the blessing and encouragement of groups that included the National Rifle
Association as well as the Brady Campaign – passed a bipartisan bill called, of all things, the 2003
‘Our Lady of Peace Act,’ which provided material support to states to generate NICS-accessible
databases of mental health adjudication records and records of unlawful drug abuse (separate from
felony conviction records). Supporters of this statute, like the National Education Association, state
that “Better records would mean more accurate background checks – checks that would stop
prohibited buyers while allowing legitimate buyers to be approved.” Somehow a figure got created
and passed around the internet stating that ‘there are over 30 million records missing from
NICS,’and indicating that these missing records are the cause of undue numbers of three-day delays
in the insta-checks. But if the records are missing – who knows how many there are? And if they
aren’t there – why are they supposedly taking longer to look through? Who makes this stuff up?
In the wake of the Vtech shooting, the NRA re-issued a position paper regarding mental health
adjudication records and NICS, confirming that the NRA advocates loading such records into the
NICS system. That paper, dated 4/27/07 says, in part:
“The National Rifle Association has always supported including the records of individuals
© Attorney Cindy Hil 2013 Firearms Law 101
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adjudicated mentally defective into the National Instant Background Check System. We believe that
the NICS should serve the intent of Congress, which is to prohibit the sale of firearms to criminals
and other prohibited persons, such as adjudicated mental defectives.”
The position paper does go on to state that the NRA supports legislative moves that “Ensure that
mentally defective adjudications are limited to adjudications following adversarial hearings only, not
a solely administrative finding or short-term diagnosis from a doctor, as often occurs in cases of
depression or post-traumatic stress disorder. Remove mental disability records from the NICS if a
judge determines that the person is no longer a danger to himself or others, or no longer requires
involuntary treatment.”
Peace of Mind, or Piece of Paper?
The Vtech shooting will add fuel to the fire ignited under the Our Lady of Peace Act to substantially
increase the mental health adjudication record base of NICS. Expect a wave of litigation challenging
which records are loaded into the database, what information on those records should remain
private, and whether the BATF regulations exceed the lawful scope of the statute as authorized by
Congress. If states create databases that report every court order into drug or alcohol treatment
(does that mean every person convicted of a DUI who gets sent to alcohol counseling?), expect both
NICS and the court systems to bog down to a standstill.
The interaction of mental health determinations and governmental policies has been proven
historically disastrous. Witness the eugenics programs, in which governmental findings of the
mental incapacity of ‘feeblemindedness’ were handed out among the poor, the Catholic, the Native
American, and just about any other social group that valued things like, for example, music and
dance and hanging around with family instead of toeing the white-upper-class line and working
docilely in factories from 8 to 8. These programs were used to break up families and commit
countless individuals to mental institutions simply because they weren’t ‘with the program’ of being
‘good Yankee stock’ and thus required ‘improving.’
Think of all the ways that a determination of ‘mental aberration’ has been used historically to
oppress certain groups of people. Gypsies who choose to live a transitory lifestyle, homosexuals,
those who decline to subscribe to whatever the dominant state religion of the time is, have all been
declared nuts, or unsafe, or a danger to themselves and others, at one time or another. Claiming that
these determinations are made in the name of the science of mental health is a great way to
disenfranchise, disarm, and do away with those who the upper crust deem ‘undesireable.’
The radical expansion of the NICS database with mental health adjudication records is a step which
should be taken cautiously, only after full and fair public debate, both on the national level, and in
each state as that state undertakes to define how it will set up its reporting records. It should not be
rushed into, even in the wake of such a tragic event. Although taking some action in the wake of
Vtech might make some people feel a little better, there is no assurance whatsoever that even if Cho
had received a Brady denial, that this incident would not have occurred in another guise: a bomb, a
home-made firearm (not hard to do), a bus driven into a crowd, a poison gas released in a room with
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doors and windows locked.
The point of purchase of the firearms was but one of thousands of potential points of intervention
which may or may not have changed the course of what happened that horrible tragic day.
Changing any one of those thousand things – like one person reaching out to this very troubled
young man; or one person, armed with a gun or not, resisting or obstructing his homicidal path –
might have altered the day – or it might not have. Sometimes, bad things happen.
*end*
**************
4. BATF Seizures and Forfeitures
After the break, we’ll talk about the Brady background check, and how a Brady Denial
comprises a statement by the government that the person who received the denial is a person
prohibited by law from possessing firearms. In that case, NICS personnel notify the local BATF
office of the denial. This is the ‘red flag’ which often leads to BATF or other law enforcement
officials interacting with the individual who attempted unsuccessfully to purchase a firearm.
Other events can also lead to similar interaction, including another individual providing law
enforcement with information that a person with a disqualification is in possession of firearms,
or some other interceding criminal charge. Law enforcement and state and federal agency
records are increasingly intertwined – a record that a person took a deer during rifle season, or
a warrant for an unpaid traffic ticket in a far-away state, can also red-flag a BATF inquiry into
whether a person is unlawfully in possession of firearms.
BATF is increasingly sending out ‘love letters’ to individuals who have red-flagged but are of low
criminal concern, directing them to get rid of their guns.
Once a person is red-flagged, BATF and assisting law enforcement officers from other agencies
may come to the door with our without warrants, in the first instance requesting that the
individual voluntarily relinquish their firearms, in the second instance actively seizing them.
As with all seizures and as with all interactions with law enforcement officials, the individual has
the right to refuse entry if there is not a warrant; to decline to speak with or give a statement to
law enforcement officials; and to call an attorney. In my experience, firearms owners in this
position seem more knowledgeable and inclined to exercise these rights than any other manner
of client I’ve ever had – it is not infrequent that I get calls from individuals standing in their
kitchens with BATF officers present, asking me what they should do. (To their credit, BATF
agents who have found my business card on a person’s refrigerator or wall of their gun safe
have also called me on the presumption that I represent the individual.)
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The single most important thing to do at that point of initial seizure is to absolutely insist on a
detailed, accurate receipt for any and all firearms, ammunition, and other materials that are
being taken. (Not giving a statement is usually also the best idea.) You might assume that an
accurate receipt or return on a search/seizure warrant would be a basic ‘given,’ and you might
also assume that BATF agents and Vermont law enforcement officials are exceedingly
knowledgeable regarding firearms and ammunition makes and models. These assumptions are
not supported by the information on many seizure returns which I am familiar with, especially
when a large number of firearms is at issue. Things get entered twice; firearms often are
entered with erroneous identifying information as to make and model and serial number;
ammunition is mis-identified or miscounted; and countless items of perhaps less interest to law
enforcement officials, but of monetary value and private property nonetheless, are omitted
from inventories all together, including optics, slings, cans, etc. Some BATF and local law
enforcement agents are quite reasonable at either removing these non-illegal items at the
point of seizure, or promptly removing them and returning them after the firearms are in BATF
possession. But carefully creating an accurate inventory so that guns don’t just get ‘lost’ or the
matter does not get erroneously over-charged, is very important.
For forfeitures proceedings, see the BATF Firearm Civil Forfeiture Procedure and Policies: An
Attorney’s Guide, http://www.gunowners.com/forfeiture.pdf published by the Gun Owners
Foundation (and posted on the website of the Jews for the Preservation of Firearms
Ownership). This publication accurately cites the statutes, regulations, and procedures for
addressing forfeitures.
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QUESTIONS, BREAK and
COPIOUS AMOUNTS OF COFFEE.
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D. BRADY CHECKS (1 hour 45 minutes)
1. How they work
When you seek to purchase a firearm from a licensed firearms dealer – an FFL – you must first
fill out a BATF Form 4473. You can view that form here:
http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf
The FFL then phones the FBI’s National Instant Check System and – in something which may
well be more than an ‘instant’ – gets a ‘yea’ or ‘nay’ on the sale. Or, you might get a ‘delay’ –
which means that at the end of the third business day after the sale, the FFL is permitted –but not
mandated – to transfer the firearm to you.
That yea, nay or delay is based on a NICS operator’s review of several sets of databases
including federal and state criminal convictions, domestic restraining order databases, military
discharge records, and it’s your guess what else they look at (NSA Facebook monitoring
records?).
You can read the FBI’s explanation of this process here:
http://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet
The so-called ‘gun show loophole’ refers to the fact that these background checks apply ONLY
to purchase from licensed federal firearms dealers – FFLs. Private individuals can sell firearms
to one another with no background checks. BATFE regulations define who must obtain an FFL,
related to number of sales per year or whether you make your livelihood selling guns. However,
BATF does not tend to enforce this regulation, and many individuals have gone the gun fleamarket sales route and established gray-zone de facto businesses buying and selling guns at flea
markets and gun shows, all without background checks. Given that these individuals are not
paying the FFL fees and taxes, it seems it might behoove BATF to enforce its FFL licensing laws
as this creates an unfair advantage over lawful FFLs. But instead of following this logical
direction there is instead a constant clamor to make ALL firearms sales go through background
checks by way of ‘closing the gun show loophole.’ Most people selling at Vermont gun shows
are FFLs or selling antiques. Many private individual who I know prefer to sell their firearms by
consignment at local FFLs unless they are selling to a close friend or relative – but this is a
matter of personal choice, not law. Thus far, individuals can still sell firearms, and the property
rights issues of changing that are convoluted.
In the couple of weeks before deer season, and on days when large gun shows are going on,
NICS in the past jammed up completely and everyone got delays – effectively nixing the sales.
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This, along with a mess of inefficiencies in the NICS databases, led to the passage of HR 2640,
discussed at length in my article below.
The second article pasted below relates to residency on the Form 4473. An increasing number of
individuals who live elsewhere are declaring Vermont residency for a variety of reasons. Long
Island and Westchester County are covered with Vermont license plates because Vermont car
registration and insurance are far cheaper than New York’s – and one spouse can declare
themselves a Vermont residence and provide homestead protections to their summer or ski
house. Gun owners also want Vermont residency so they can purchase firearms with no permits
whatsoever.
******************
HR 2640–What’s It Mean For Me?
Cindy Hill, Esq.
The NICS Improvements Amendments Act of 2007 –NICS-IAA, popularly called HR 2640– was
signed into law on January 8, 2008. The law was widely touted by mainstream firearms organizations
like the NRA as being a positive step forward, making Brady background checks more efficient for
law-abiding firearms owners. But how this law will play out, and what it will mean to gun owners
and to all citizens both in terms of rights affected, NICS efficiency and accuracy, and cost to all
citizens and taxpayers, remains to be seen. We can look at what the statute says right now and guess
how it will work, but until regulations are adopted by BATFE and other agencies, and until the grant
money is all handed out and the new software and programs up and running, it’s hard to say what it
will mean in the long run.
Reason That Congress Adopted HR2640
In the introduction to the statute, Congress sets out a number of reasons why they decided to pass
amendments to the Brady background check law. Most generally, Congress points to the fact that
nearly ten years after NICS first went into operation, we still don’t have all the state criminal records
automated, and those that are automated are not necessarily in a format instantly accessible to the
NICS system. This isn’t a huge surprise; we are talking millions upon millions of state records,
including both a backlog of historical records and the constant daily upkeep on the status of current
cases.
Nearly every state has made big leaps forward in getting the bulk of their felony criminal data online
in a fashion usable by NICS. However, several other categories of records remain somewhat
elusive, including information indicating that domestic stay-away orders have been lifted, records of
misdemeanor domestic violence convictions, and records of mental health adjudications.
It is the mental health records which Congress then points to more specifically as the reason behind
this new statute. Congress cites two particular tragic instances as evidence that a new law regarding
mental health records is required. The first is a 2002 shooting in a church in Lynbrook, New York;
in that case, it is apparent that the shooter had a disqualifying mental health adjudication and
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possibly also a disqualifying family court restraining order, but that information did not appear on
the NICS records. What can never be known, of course, is whether the availability of that
information would ultimately have altered the result: the murderer might well have privately
purchased or stolen a firearm without going through a NICS check, or employed a non-firearm
murder weapon as is the more usual case in domestic homicides, such as a baseball bat, knife, motor
vehicle, or any number of other objects.
The second instance cited by Congress is the 2007 mass murder at Virginia Tech. But even
Congress waffles on this one, noting that the shooter had a ‘proven history of mental illness’ but
stopping short of saying he was disqualified from firearms possession under the law. I remain
uncertain that either prior existing law or this amendment would have altered the answer to the
question of whether the Virginia Tech murderer should have passed a Brady background check. And
again, no one will ever know whether even a Brady denial would have altered that horrific course of
events. The murderer might well have alternatively stolen firearms, or built a bomb, or chained all
the doors shut and lit a fire.
However, when tragedies and major criminal actions occur, elected officials feel compelled to
demonstrate they are doing something about it, even if that response is inherently reactionary and
incident-driven rather than pro-active and holistic. In the present case, ongoing records issues with
NICS would likely have been addressed purely through appropriations, regulations, and ongoing
programs and dialog between state and federal agencies, but the Virginia Tech shooting was
dramatic enough to result in this more sweeping Congressional response.
Federal Record Updates Requirements
The NICS-IAA now mandates that all Federal agencies and departments, including the Department
of Homeland Security, having any records regarding any of the Federal firearms prohibitions
categories report that information to the Attorney General’s office at least quarterly. The statute
also specifically directs that any such agency or department that has information indicating that the
disqualifying status has been removed or changed report that information promptly as well, and
mandates that the Attorney General’s office act on that update to correct the NICS records within
30 days of receiving the information. The NICS-IAA specifically directs the Attorney General and
the Department of Justice which he oversees to make provisions for removing obsolete and
erroneous information from the NICS database.
These requirements for Federal agencies are not much of a substantive change over current law; they
simply clarify and make more pointed the Congressional directive to keep these records accurate,
which is a worthy, though continually elusive, goal. If these new words adopted as law by Congress
wind up actually helping improve the accuracy of the NICS database, then I suppose that will qualify
as an improvement and help eliminate the erroneous denials and delays which presently occur.
Nothing, of course, will eliminate those entirely.
State Records, Incentives, and Prohibition of Drug Users
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The NICS-IAA directs the Attorney General to work with the States to develop computer programs
and databases for court orders like domestic restraining orders, and for records of adjudication of
mental defects and commitment to mental institutions. Congress encourages the States to move
forward on these database requests by tying compliance to federal funds – consistent with the
ongoing federalization trend of law enforcement generally. Unfortunately most, if not all, States
don’t have the fortitude to turn down the Federal grant money and simply say we aren’t playing. If
you want the funding, you have to follow the Fed’s rules.
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In listing the items which comprise ‘records’ of interest to NICS, Congress does make one
interesting substantive addition to current federal gun control law. This is an interesting new set of
language pertaining to the present prohibition listed at 18 USC 922(g)(3), disqualifying from firearms
ownership any person who is ‘an unlawful user of, or addicted to, any controlled substance...’. In
the NICS-IAA, Congress clarifies that such prohibition applies to persons demonstrated to be
unlawful users or addicts by records of’ arrests, convictions, or adjudications...’. This clarifies that
Congress still seeks to prohibit from firearms ownership those persons who have been merely
arrested for drug use, even if acquitted or the charges were dismissed. But the language of the
statute also seems to give a good legal argument in defense of those persons who were designated as
drug users or addicts merely by the insertion of that information on their record sheets by a law
enforcement agency, as often occurred in the early background check days when local Chief Law
Enforcement Officials did the background checks themselves. Very interesting Constitutional
questions will arise as the States and the Attorney General attempt to create databases and enter
records of persons who have at some point in time been arrested, but never convicted, of illegal
drug possession. If you consider the massive arrest sweeps that occur routinely outside some large
concert venues, for example, you’ll realize just how many people this applies to.
The NICS-IAA does not seem to make any other substantive changes to the definitions of the
existing Federal firearms prohibitions other than the mental health records discussed below;
however, again, it remains to be seen whether BATFE and the Department of Justice will adopt
different takes on these in their enacting regulations.
Mental Health Adjudication Changes.
Other than creating funding incentives for States to continue computerizing their records and
making them available to the Feds, the heart of NICS-IAA is to attempt to devise a new system for
creating, maintaining, and dissolving mental health adjudication and commitment records.
NICS-IAA now mandates both the prompt entry of records of mental health adjudications and
commitments into the NICS system, notification to the person that such adjudication or
commitment renders them prohibited from possessing firearms under federal law, and, interestingly
enough, also mandates adoption of a system by which the person can apply to have the mental
health or commitment firearms disability removed from their record. The reason that this disability
removal mandate is interesting is that it comes from the same Congress which has refused for
decades now to fund the portion of a Congressionally-passed statute that directs BATFE to process
applications for restoration of firearms rights relative to the other 8 categories of Federal firearms
prohibitions. Additionally, if this requirement for having a disability-removal program in place is
applicable to all the States as the statute implies, this is going to create a large court backlog in most
states, and a huge increase in need for court space, time, and funding.
The statute also clarifies a number of other mental health records concern, making it clear that
persons who voluntarily submit to mental health evaluations or screenings, or who obtain drug and
alcohol counseling, or who were merely the subject of a medical finding of disability that did not
include adjudication, are not prohibited from firearms ownership. (The NRA, among others, asserts
that this means the controversy over mental health records of veterans has been largely resolved;
however, since many of those records issues involve military discharges, which would constitute an
adjudication, I am not quite as confident as the NRA that the matter has been laid to rest
© Attorney Cindy Hil 2013 Firearms Law 101
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satisfactorily.) The prohibition also dissolves, apparently automatically though someone is going to
have to tell NICS, upon the conclusion of all mandated treatment, supervision, or monitoring.
So at heart, the Congressional response to the concern regarding mental health records and firearms
in the wake of the Virginia Tech shooting is to provide funds to load more mental health records
into the NICS database, while at the same time narrowing the list of mental health records that
disqualify a person from possessing firearms and mandating a provision whereby persons
disqualified from firearms possession because of mental health issues, but not for any other reason,
can get those rights restored. So if you had an argument with your girlfriend back in 1968, you still
can’t have a gun, but if you’ve been released from a mental institution and finished your post-release
treatment, you’re fine to carry firearms. I’m not complaining about the portions of the law which
seem to be an apparent loosening up of standards – I’m merely pointing out that they are awfully
random in their likely impact.
Conclusion.
NICS-IAA 2007provides added financial incentives to States to bring their criminal, court order, and
mental health adjudication records into a computerized form accessible by NICS. It also encourages
federal agencies to increase the accuracy of NICS records, especially by removing obsolete records.
The statute also provides considerable clarification as to which mental health adjudication records
are to be loaded into NICS and which mental health proceedings comprise prohibitory factors under
the federal gun control laws.
In the past, however, BATFE regulations have changed the definitions and interpretations of
Congressional statutes regarding gun control, and Congress itself has refused to fund its own
statutory programs created to provide relief from firearms disqualifications. So how the NICS-IAA
2007 will play out for firearms owners, taxpayers, and all U.S. residents, remains to be seen.
*end*
***********
You can read the full text of the statute here:
https://www.govtrack.us/congress/bills/110/hr2640/text
***********
RESIDENCY ON THE FORM 4473: IT’S NOT AS SIMPLE AS IT SEEMS
Cindy Ellen Hill, Esq.
Where do you live?
It seems a simple question but when it comes to accurately filling out a BATF Form 4473, few
things are ever simple. Form 4473 requests that you fill in your “Residence Address.” The purpose
of this request is both to aid in identification for the NICS background check, and to identify your
‘state of residence’ to see if you are legally qualified to purchase a firearm at that location.
BATF regulations, 27 C.F.R. Section 478.11, Commerce in Firearms and Ammunition, Meaning of
Terms, defines ‘state of residence.’ This definition section is also contained within the instructions
for filling out a Form 4473:
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State of residence. The State in which an individual resides. An individual resides in a State if he or
she is present in a State with the intention of making a home in that State. If an individual is on
active duty as a member of the Armed Forces, the individual's State of residence is the State in
which his or her permanent duty station is located. An alien who is legally in the United States shall
be considered to be a resident of a State only if the alien is residing in the State and has resided in
the State for a period of at least 90 days prior to the date of sale or delivery of a firearm.
The following are examples that illustrate this definition:
Example 1. A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or
other type of trip. A does not become a resident of State Y by reason of such trip.
Example 2. A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in
State X except for weekends or the summer months of the year and in State Y for the weekends or
the summer months of the year. During the time that A actually resides in State X, A is a resident of
State X, and during the time that A actually resides in State Y, A is a resident of State Y.
Example 3. A, an alien, travels on vacation or on a business trip to State X. Regardless of the length
of time A spends in State X, A does not have a State of residence in State X. This is because A does
not have a home in State X at which he has resided for at least 90 days.
The regulations further define ‘state’ as: “A State of the United States. The term shall include the
District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States
(not including the Canal Zone).”
The instructions for Form 4473 note that, if you are on active duty in the Armed Forces, you have
to insert BOTH your home residence and your present duty residence into the Form 4473 ‘residence
address’ section. However, neither the Form 4473 instructions, nor the BATF regulations, nor any
BATF circulars which I’ve located to date, provide guidance as to what you are supposed to do if
you are an individual described in “Example 2" above, with two actual legal residences. In the
absence of instruction from BATF to the contrary, the most logical conclusion would be that one
should merely insert the residence address upon which, at the time of that purchase, you are utilizing
as your residence, whether that’s your regular home or summer/ski home.
The issue becomes further tangled by the fact that a firearms purchaser must provide a governmentissued photo identification document in order to complete the 4473. Most commonly, this is a
drivers license. However, while the BATF regulation examples demonstrate that you can effectively
have two lawful residences for purposes of firearms purchases, it is not possible to legally have two
valid drivers licenses. And since you need to provide your drivers license in order to obtain a
passport, it is hard to envision how one might have a passport with a different address than a drivers
license.
Thus, the BATF regulations indicate that your Constitutional right to possess a firearm may be
exercised via a purchase in either state of residence when you have a second home; however, as a
practical matter, it would be extremely rare for a person to be able to provide the appropriate
identification to support their exercise of that right under that regulation. Some urban residents
don’t have drivers licenses where they work or where their primary home is; some of these folks do
obtain a drivers license at their farm, summer home, ranch, or camp, where they keep cars or work
vehicles for use at that second home. If you’re in this situation, you should be able to purchase a
firearm in the state of your second home using that drivers license for identification. But if you have
a drivers license in the state of your primary home, you would have to obtain some other form of
© Attorney Cindy Hil 2013 Firearms Law 101
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government-issued identification in the state of your second home. Some states’ rules may allow you
to obtain a non-driver’s-license ‘Sheriff’s Card’ or similar identification, of the type that persons who
can not obtain a driver’s license get for general identification purposes. In theory, with this BATF
regulation in hand, you should be able to present a driver’s license with your primary home
residence on it while asserting your residence at your secondary home – but I am highly doubtful
this would be accepted anywhere, since a valid driver’s license from the state where you are
presenting is the industry standard for appropriate identification, despite what the regulation says on
paper.
There appears to be virtually no reported case law interpreting this question of appropriate
residency. Given the considerable differences between different states as to firearms purchase,
possession, permit and storage requirements, I’m quite surprised that the BATF regulations seem to
effectively allow firearms purchasers with second homes to elect between two or more states when
declaring their residency. And given how many firearms owners maintain a hunting camp or
vacation home in a state that might be considered more lenient in its firearms transactions than the
urban states where many such firearms owners maintain their primary residence and employment,
I’m further surprised that more people haven’t taken advantage of declaring hunting camp to be a
‘residence’ for 4473 purposes. But the documentation difficulties may be the insurmountable hurdle
in that regard.
Lying on the Form 4473 is of course a serious federal felony, which all firearms owners wisely strive
to avoid. But even the apparently easy-sounding questions on the form are fraught with
complications and confusion, which often seems designed to entrap the would-be firearms
purchaser rather than to aid in the orderly administration of the firearms laws. If you are a firearms
owner with residences in two states, under the law you may exercise your Constitutional right to
purchase a firearm in either of those states. But whether you can find a way to actually exercise that
right is a complex question indeed.
*end*
****************
2. What a Brady denial means for your client
Before discussing the legal ramifications, I want to say a word about the emotional and mental
health implications. Do not underestimate the strain that a Brady denial will create on your
client’s psyche. Individuals who identify themselves as gun owners, lawful citizens, patriotic,
good spouses and parents, suffer a profound psychological disconnect when told that they can’t
have a gun, can’t hunt with their kids, can’t keep their job in law enforcement or the military.
These Brady denials often expose long-kept secrets about a prior military discharge or a longhushed-up criminal conviction from days of crazy youth. Suddenly these secrets have to be
revealed to loved ones and friends. They create a sense of shame and embarrassment. Be
cognizant of your client’s mindset on this. Encourage them to wrestle down their anger –
screaming or threatening won’t help at all – and encourage them to seek professional mental
health assistance where ever it seems indicated.
© Attorney Cindy Hil 2013 Firearms Law 101
Page 54
--Can’t possess firearms under federal definition
A Brady denial is a declaration by the federal government that the individual is prohibited from
possessing firearms. All firearms. Including those already owned. Yes, the 900 guns in the safe in the
basement and the 10 in the car. All firearms that meet the federal definition of a firearm.
--Constructive Possession
Possession and ownership are not the same thing. A person who receives a Brady denial can OWN
firearms, he or she just can’t POSSESS firearms. I strongly advise persons in this position to immediately
dispossess themselves of their firearms by transferring them to a friend, relative or better yet an FFL for
safe storage at a locked location to which the owner does not have access or a key, and obtaining a
sworn statement from that individual that they will not allow the firearms owner to take possession of
the firearms unless or until the matter is resolved. This can preclude forfeiture and allow the firearms
owner to at the least sell the guns off for cash (to pay lawyers fees?) if all else fails. For those who balk, I
remind them to at least consider all those guns they want to pass to their kids or that have emotional
value – dad’s service revolver – and get them to safe storage immediately.
Another common question is, what about the other members of the household? Most commonly it’s the
male of the household who winds up with a Brady denial or a prohibiting factor – but oddly enough,
women are permitted to own property these days, so what’s the female partner to do with her guns just
because her menfolk got themselves in trouble with the law? (or any partner of any gender – the same
point applies—I was just looking for an opportunity to be snippy about women having property rights...)
Or what about the kid’s guns, the squirrel gun that was a present from grandpa for example?
This is the gray zone of federal Constructive Possession law – somewhat akin to the Actual Physical
Control laws of the DUI realm. Federal law describes constructive possession here:
http://www.rip.uscourts.gov/rip/supervision/firearmpossession/FirearmPossessionProhibition.pdf
and you can read more about it below:
*********
Constructive Possession: Gray Shades of Law That Can Land You In Jail
Cindy Ellen Hill, Esq.
Like the walls of many a jail cell, the law is more gray than black and white, and those of us who
consider ourselves ‘law abiding’ are often unaware when we transgress its foggy boundaries.
Most gun owners know it’s illegal to possess a firearm if you have a prior felony conviction. The
concept seems a straight-forward enough on first reading, but every key word of that sentence is
subject to legal interpretation. A ‘firearm,’ for instance, doesn’t include a muzzleloader or air rifle.
A ‘felony conviction’ doesn’t include white-collar crimes or violent crimes that have been pardoned
or expunged.
But the grayest term of all is ‘possession’. ‘Possession’ becomes critically important to all lawabiding gun owners who wish to remain law-abiding, because it is a crime to place a firearm into the
possession of a person who is prohibited from having one. But how will you know if you’ve done
so?
© Attorney Cindy Hil 2013 Firearms Law 101
Page 55
If your nephew, niece, wife, husband, neighbor, work buddy, son, daughter, or anyone else you
know has a felony conviction and you physically hand them a firearm, you are liable to be charged
and convicted with a federal felony. But what if your nephew has a felony conviction, and you
employ him to house-sit while you are on a business trip, leaving the keys to your gun cabinet
hanging from in the hallway? Or what if your wife has a felony conviction, but as a security guard,
you own several firearms including a handgun kept on your nightstand for quick access? Or what if
your son, in his infinite teenage wisdom, gets a felony conviction for joy riding, which you hope to
have removed from his record when he turns 18, but meanwhile you maintain his hunting rifles on
their rack over the mantle just where they’ve always been?
Welcome to the gray zone of firearms possession law. In any of these instances, it is indeed possible
that a law enforcement agency may present criminal charges against you to a prosecutor, a
prosecutor may press those charges before a court, a court may not drop the charges and a jury may
decide the question at trial of whether or not you placed a firearm into a felon’s possession. This is
because the law considers ‘possession’ to include what’s called ‘constructive possession’. Firearms
law is not the only field to recognize the legal fiction of ‘constructive possession’; many a person has
been convicted of drunk driving for staggering down a street with car keys in their pocket, which is
considered to be in ‘constructive possession’ of a motor vehicle while intoxicated. (This includes
many a person who thought they were doing the right thing by leaving the car parked and walking
away. As if things aren’t complicated enough, the gray spectrum of legal liability and the gray
spectrum of morality don’t necessarily coincide.)
I am often called by people looking for a straight answer as to what to do with their firearms when a
member of their household has received a felony conviction. To everyone’s frustration, there is no
straight answer. There is no statute or regulation that a firearms owner can look at which will say in
plain English whether any given situation constitutes illegal ‘constructive possession’ of a firearm.
We can only look at reported federal court cases and then try to compare them with our own
circumstances, and make our best guess.
Federal courts have said that “A person has constructive possession if he has the power and the
intention at a given time to exercise dominion and control over an object, either directly or through
others.” U.S. v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003). Constructive possession can be
established through circumstantial evidence including through a series of inferences drawn from that
circumstantial evidence. In other words, the jury can take into account all the factors after the fact
and, in hindsight, draw a conclusion as to whether a person was in illegal constructive possession (or
put a gun illegally into someone’s constructive possession), regardless of the person’s knowledge or
intention at the time. “Mere proximity” to a firearm is not enough in an of itself to prove
possession; however, testimony that the person didn’t know the combination of a safe in which the
firearms were locked is also not enough to prove a person did NOT have possession.
For example, in 2004 Brent Merritt was convicted in federal court of being a felon in possession of
73 firearms which were contained in a locked vault in his basement, after three witnesses testified at
trial that Merritt did not know the combination to the vault and could not open it. The appeals
court upheld his conviction, saying that the jury could have considered the circumstantial evidence
of police officers’ testimony that Merritt indicated knowledge of the contents of the vault before and
after it was opened (he mentioned not wanting his wife to see certain photos that were in the vault,
and he then instructed officers on how to clear and safe a Sten gun that was removed from the
© Attorney Cindy Hil 2013 Firearms Law 101
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opened vault), together with the circumstantial evidence that there were pieces of mail addressed to
Merritt within the vault, and drawn the inference from that circumstantial evidence that Merritt was
in ‘constructive possession’ of the vault’s contents. The jury could also have legally decided to
disbelieve Merritt’s three witnesses.
In this case, the officers had opened the vault by virtue of a warrant looking for financial documents
related to an insurance fraud investigation. But regardless of how the information came to light,
Merritt was convicted of being in possession of guns that were in a locked vault, in the face of no
direct evidence – that is, no physical evidence such as the combination written on a piece of paper in
his wallet, or his fingerprints on the safe door – that he even knew the combination to the vault.
The collection of 73 firearms was a valuable financial asset, and Merritt may well have believed that
he had protected that asset for his wife and children’s benefit by having his wife be the sole person
with access to the vault. His personal belief does not matter; the jury found him guilty. However,
we’ll never know whether they may have found differently, or if Merritt would even have been
charged at all, had the vault been stumbled on by a construction crew doing demolition work in an
adjoining building or firefighters at a house fire at Merritt’s home. The combination of particular
circumstances in this case led to the jury convicting Merritt of a serious firearms crime, but those
circumstances don’t draw any black and white lines for the rest of us to follow. We are left to
merely guess what shade of gray our own gun safe will take on in the light of a jury’s eyes if we wind
up having to testify that we locked our son’s guns in there for safekeeping until he turns 18 and gets
that joyriding charge removed.
*end*
***************
--Impact on hunting
Remember that the Brady denial means you cannot possess firearms within the definition of firearms
under Federal statute. This means you can hunt with black powder or bow-and-arrow. Vermont allows
black powder hunting during regular rifle season as well—though if you tag one, it may well red-flag ATF
into searching your house and asking you a whole mess of questions.
The problem is often the constructive possession issue – you don’t want ordinary firearms in a motor
vehicle with, or in the hands of, a person who has received a Brady denial. This makes hunting with your
kid very difficult without the knowledgable cooperation of other friends and relatives.
3. Overturning a Brady Denial
Your client got a Brady denial, and is not happy. Is there anything to be done?
Upon getting a Brady denial, your client will receive a NICS Transaction Number (NTN). They should also
receive the FBI/NICS brochure regarding how to appeal a denial.
You can access the brochure here:
http://www.fbi.gov/about-us/cjis/nics/appeals/nics_appeals_brochure_eng
© Attorney Cindy Hil 2013 Firearms Law 101
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The very first thing to do is write to the address given in the brochure for appeals and request the
Statement of Reasons for the denial. Firearms owners often guess as to why they were denied – and
often they are wrong. There is no point in starting to work to correct a record when you don’t really
know what the denial was based on.
When I went to Google search how to obtain the Statement of Reasons for Denial, I wound up finding an
interview with myself on the subject… embarrassing. But here ‘tis:
http://gunguy.tempdomainname.com/nicsfail.htm
--Correcting erroneous records
Brady denials are frequently a matter of erroneous records. If NICS read the record wrong and is looking
at the wrong person’s file, a straight-up NICS appeal including submitting fingerprints and other
documentary evidence if necessary should correct the issue. If, however, the error is on the part of the
federal or state court recording a conviction or domestic restraining order, you may have to go back into
that court and correct the record from the inside out. Persistence and creativity are the watchwords on
this.
One common problem is that a conviction is erroneously entered as a felony when it was a
misdemeanor – or the statute was a misdemeanor at the time and is now a felony. Often these records
no longer exist – yet the burden is on you to prove that the denial was erroneous (a standard which may
be up for challenge now given the Heller and MacDonald decisions).
--Vermont expungement and pardons
Vermont now has a limited expungement process.
You can access the information on it here:
https://www.vermontjudiciary.org/eforms/Information%20Sheet%20Filing%20a%20Petition%20to%20E
xpunge%20or%20Seal%20a%20Criminal%20Record.pdf
And the petition for it here:
https://www.vermontjudiciary.org/eforms/Form%20130.pdf
Since Vermont expungement is only for misdemeanors – and excludes misdemeanor domestic violence
convictions – it has little impact for persons who had received Brady denials, with a few possible
exceptions.
In theory, persons convicted of a felony in Vermont courts can apply for a governor’s pardon. The odds
of receiving one are somewhat less than those of winning Megabucks. But for grins and jollies, the
application is here:
http://governor.vermont.gov/sites/governor/files/VERMONT%20PARDON%20APPLICATION%209-613.pdf
© Attorney Cindy Hil 2013 Firearms Law 101
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Persons convicted in federal court can apply for a Presidential pardon. Good luck with that too. Then
again, Ollie North got one.
http://www.justice.gov/pardon/pardon_instructions.htm
--Out of state convictions
Out of state convictions may require affiliating yourself with local counsel in order to obtain records. It
also involves a lot of long-distance phone calls or even trips. Bribing public officials is of course unlawful
but I have found that maple syrup and Champlain Chocolates have persuaded clerks and archivists to
descend into dusty basements drilling up old records… just sayin’… The hard part is often finding copies
of the statute under which your client was convicted as it existed at the time of conviction. Digital
archiving has made this considerably more difficult – you can find current versions of statutes, but not
the 1972 version online. It involves…gasp….looking at books. Old books. With spiders in them.
--Administrative appeals to NICS
If the reason for denial is not amenable to fixing at the state-records level, or if you’ve fixed the state
record and are still getting denials, follow the NICS appeals brochure process. You can’t go any further
before exhausting your administrative remedies under the federal Administrative Procedures Act by
completing an appeal with NICS.
--Appeal to federal court; ATF restoration process
Once your administrative appeals are exhausted, your only remaining remedy is to bring an action in
federal court to compel the NICS approval. I have never gotten this far – but I have had several suits that
I threatened to bring, but I sent them by way of demand letter to the U.S. Attorney’s Office and had him
agree with me and, through conversations with NICS, reverse the denial.
The BATF used to have – and still has on the books – a firearms rights restoration process, whereby ten
years after a disqualifying conviction you could apply for reinstatement. Since the BATF screw-ups at
WACO and Ruby Ridge, Congress decided to specifically de-fund this program – ironically hurting
firearms owners, not BATF. It is interesting to me that in the wake of Heller and MacDonald, this process
has not been resurrected, and I anticipate litigation regarding this in the near future.
--VAF
If your client gets frequent Brady delays or denials due to confusion of their record with someone else’s
or a weird entry in the record that you can’t correct, you might consider the Voluntary Appeal File (VAF)
process. Some gun owners are adamantly opposed to this process, which creates a permanent record –
others appreciate the fact that it means they can get in the express line at the FFL.
You can read the FBI NICS VAF brochure and instruction form here:
http://www.fbi.gov/about-us/cjis/nics/appeals/nics_vaf_brochure_eng.pdf
© Attorney Cindy Hil 2013 Firearms Law 101
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************
VOLUNTARY APPEAL FILE:
Is it a Good Idea to Ask the Government to Keep Tabs on You?
Cindy Ellen Hill, Esq.
Ordinarily, asking a federal government law enforcement agency to keep a permanent file on you
might not be a good idea. But if you’ve experienced the hassle of an erroneous Brady denial, or
repeatedly go through ‘delay’ status when you attempt to purchase firearms from an FFL,
requesting that your name be placed on the Voluntary Appeal File list just might be the solution.
The Department of Justice established the Voluntary Appeal File in July 2004, by the administrative
rule-making process. As described by NICS in the informational memo they sent to FFLs about the
VAF, “This process permits applicants to request that the FBI NICS Section maintain information
about them in the VAF, a separate file to be checked by the NICS, to prevent erroneous denials and
extended delays in the future. Lawful purchasers who have been delayed or denied a firearm transfer
because they have a name or date of birth similar to that of a prohibited person may also request
that the FBI NICS Section maintain information about them to facilitate future firearms
transactions.”
Common Reasons for Erroneous Denials and Inconvenient Delays
Having a name and date of birth similar to that of a prohibited person is only one of many reasons
why a person might experience repeated erroneous NICS delays or denials. Other reasons include
errors in criminal history records which can not be easily corrected, or a confusing criminal history
record such as where the would-be firearms purchaser has prior felony convictions which were
overturned on appeal or later reduced.
Another common error occurs when a person was convicted of a misdemeanor, but the state where
they were convicted later changed the statute to turn the misdemeanor into a felony. This is a very
common pattern in, for example, things that used to be considered minor drug charges, such as
simple possession of small amounts of marijuana, as well as for things that used to be considered
‘youthful crimes’ like operating a motor vehicle without the owner’s consent. These were usually
misdemeanors in the 1960's or 1970's, but today most states have converted those to felony
offenses. This does NOT serve to retroactively convert prior misdemeanor convictions to felonies,
but depending on how the conviction is entered into the databases, the record might pop up as
showing the present statute rather than the old one.
Drunk driving offenses are fodder for more erroneous delays and denials. Federal gun control laws
preclude firearms possession for anyone who has been convicted of a crime which state laws call a
misdemeanor, but which has a potential sentence of two years or more imprisonment. State DUI
laws differ widely, and in some states a DUI is a misdemeanor but has a potential sentence of more
than two years. Also, many people get convicted multiple times for DUI’s, but plea bargain the
criminal conviction down to a lower number. In such cases, they will wind up with, say, a DUI #3
on their motor vehicle record, but it only shows up on their criminal records as a DUI #1, for the
third time, and thus remains a misdemeanor.
© Attorney Cindy Hil 2013 Firearms Law 101
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In short, there are many reasons why a person’s record might create the kind of confusion likely to
lead to an erroneous Brady denial or unwarranted delay. But once that delay is over or the erroneous
denial turned around and a proceed issued, the FBI NICS division is not supposed to maintain
records of the approved transaction, so the next time you go to buy a firearm, the same thing
happens all over again. So the FBI created the Voluntary Appeal File so that firearms purchasers can
ask that their name be kept on a list of people who are approved for FFL purchase transactions.
The VAF Process
To apply to be included on the VAF, you must complete an application form, which can be found
online at http://www.fbi.gov/hq/cjisd/nics/vafbrocheng.htm and printed out. The application asks
you to list a substantial amount of identifying information, including your name, date and place of
birth, hair and eye color, social security number, drivers license number, and so on.
You must also go to a law enforcement agency and be fingerprinted, and submit your fingerprint
card with the application. With the signed, completed application form and the fingerprint card, you
should send certified copies of any and all documentation which you can assemble relative to any
confusing court cases or other entries on your criminal history.
You should include a cover letter, and explicitly ask the NICS VAF team to place you on the VAF
and maintain in your VAF records all materials necessary. In the cover letter, you must also state the
reasons why you believe you will receive an erroneous Brady denial or delay in the future. If you’ve
received ones in the recent past, it is helpful to include the transaction number for those incidents.
Otherwise, just explain to the NICS VAF team why you think you are likely to get an erroneous
denial or delay in the future, such as confusion about your name and date of birth or a confusing
criminal history record. The VAF application form includes the current address to which these
materials should be sent.
The materials sent to NICS will be retained by them and not returned, so be sure to keep
photocopies of your submission packet. You may request that you be removed from the VAF at any
time, at which point your records there will be destroyed. Additionally, if the FBI NICS Section
discovers a disqualifying record on you after your entry into the VAF, they may remove your
information from the file. In either case, you will be notified by mail that their information has been
removed.
Once the FBI NICS Section VAF Team receives the application, they will research the information
provided and send a letter indicating whether the application was successful, unsuccessful, or
provided insufficient information (in which case you will have opportunity to supplement and
resubmit the application). If your application is successful, you will be provided with a unique
personal identifier number (UPIN) which you will provide to the FFL for all future purchases. This
UPIN is your ‘clearance number’ which indicates to the person doing the NICS check that you are
on the VAF list. With a quick check of your file, you should receive a near-instantaneous approval.
Retain the original VAF approval form for your records once it arrives, just in case there is ever a
question as to your VAF listing. This is one government file it just might make sense for you to be
in.
*end*
****************
© Attorney Cindy Hil 2013 Firearms Law 101
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NICS memo to FFLS regarding VAF
TO: FEDERAL FIREARMS LICENSEES (FFLs)
Pursuant to the Final Rule enacted on July 20, 2004, by the Department of
Justice in The Federal Register, Volume 69, Number 141, the Federal Bureau of
Investigation's (FBI) National Instant Criminal Background Check System's
(NICS) Voluntary Appeal File (VAF) has been established. This process permits
applicants to request that the FBI NICS Section maintain information about
them in the VAF, a separate file to be checked by the NICS, to prevent
erroneous denials and extended delays in the future. Lawful purchasers who
have been delayed or denied a firearm transfer because they have a name or
date of birth similar to that of a prohibited person may also request that
the FBI NICS Section maintain information about them to facilitate future
firearms transactions. Under this new process, potential purchasers may apply
to be considered for entry into the VAF by signing an applicant statement,
which authorizes the FBI NICS Section to retain information that would
otherwise be destroyed upon the approval of the firearm transaction. This
retained information includes but is not limited to: a fingerprint card,
court documentation, correspondence, and information contained in the
applicant's appeal file if one exists. The applicant must also supply the FBI
NICS Section with the reason for which they believe they would be erroneously
denied or would receive an extended delay.
The application process also requires that positive proof of identity be
provided by way of rolled fingerprint impressions prepared by a law
enforcement agency on a fingerprint card. Additionally, the FBI NICS Section
will also accept any certified court documentation that may assist in the
application process. This may include but is not limited to: court
documentation and pardons. Individuals may also provide Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) Relief of Disabilities. This
information will be retained in the VAF and will not be returned. If at any
time an individual wishes to be removed from the VAF, the NICS is required to
destroy their documentation upon request.
FEDERAL FIREARMS LICENSEES (FFLs)
Additionally, if
individual after
the individual's
will be notified
the FBI NICS Section discovers a disqualifying record on the
their entry into the VAF, the FBI NICS Section may remove
information from the file. In either case, the individual
by mail that their information has been removed.
At the conclusion of the FBI NICS Section's research, the applicant will
receive a letter from the FBI NICS Section indicating the outcome of the
research as being successful, unsuccessful or the information insufficient.
Successful applicants will be provided a unique personal identifier number
(UPIN) which they will provide to the FFL for all future purchases. The
applicant will retain the original letter for their files.
The ATF recommends the UPIN be placed in block 18(a) of the ATF Form 4473
until such time that the form can be revised.
In the future, the UPIN will be provided to the Call Center Representative
during the initial background check. In the interim, all subsequent NICS
© Attorney Cindy Hil 2013 Firearms Law 101
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checks on those individuals with UPINs must be conducted through the FBI NICS
Section at 1-877-444-6427.
Select option six from the automated menu to be transferred to a VAF Customer
Service Representative. The FFL must state that they are conducting a NICS
check on an individual who has provided a UPIN. The FFL will provide the UPIN
to the VAF Representative and the rest of the process will remain the same.
FEDERAL FIREARMS LICENSEES (FFLs)
If you have any questions regarding this communication,
you may contact the FBI NICS Section Customer Service at telephone number 1877-444-6427.
© Attorney Cindy Hil 2013 Firearms Law 101
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E. MISCELLANY
***************
1. Toy Guns
Cindy Ellen Hill, Esq.
Growing up in the 1960’s on Long Island, I had a gorgeous chrome pearl-handled cap pistol that
was the perfect accessory for those occasions when I wore my red and white cowgirl hat and rode
that squeaky-spring hobby horse through many living-room adventures. Later, it was tucked in my
waistband as I raced my bike through the woods on a top-of-the-lungs charge, or crept through the
underbrush imitating the war scenes we watched on the nightly news. Those rolls of red-paperwrapped caps didn’t make much noise, admittedly, but they sure smelled good.
I was reminded of that cap pistol about a year ago when I stepped around the end of a set of shelves
in the local bookstore while perusing new cookbook titles, and found myself staring down the barrel
of a chrome revolver. My heart leapt to my mouth, my left hand flying outward to block the barrel
and my right closing into a fist and curling downwards towards the much shorter person who was
brandishing the weapon. I realized it was but a cap pistol, just like mine, about the same instant that
the little pardner yelled BANG BANG BANG.
I expressed my displeasure at having a gun barrel shoved in my face to the parent of the young
cowboy. The parent was irate--- at me, for daring to be offended that her precious baby was just
playing with a toy, and it’s not her fault or the kid’s fault that I’m a ‘gun freak’ who assumes people
would carry around real guns and point them at people, what kind of a world do I live in, and so on
and so forth.
Be that as it may, I do not appreciate having a chrome gun barrel shoved in my face. It looks far too
real, which creates far too many hazards. Like, if the little cowboy finds himself in a house with real
guns about, he’s not likely to know the difference, having been raised with realistic looking toys but
no genuine articles. And on another street, another person might not have stopped their punch
which would have, in the least, broken his nose –or another person, civilian or law enforcement,
might well have shot the boy first and taken a closer look at the gun later.
All reason why in my house, with its abundance of real guns, I never allowed any toy guns that
looked anything like an actual firearm. Our water soakers were bright orange. Well, actually, I did
cave on the pine-board rubber band guns – but I’m pretty sure most civilians and law enforcement
officials can tell they aren’t real rifles with just a quick glance. My girls shot real guns from a young
age, with all appropriate range protocols in place. I did get a pistol safe—but immediately taught the
kids the combination on it so they could get the handguns in case of home intrusion (or a rabid
coyote coming after the chickens).
But something was nagging me about how incredibly realistic that chrome barrel appeared. It wasn’t
until a couple hours later that I realized it: The chrome-plated cap pistol that the young bookstore
cowboy was brandishing at me was illegal. I wonder what his liberal, oddly anti-gun-but-pro-cap-gun
mom would think of that.
Since 1988, federal law has required that all toy guns be clearly and obviously identified. Department
of Commerce regulations, 15 C.F.R. Sections 1150.1 through 1150.5, require that all “toy, look-alike,
© Attorney Cindy Hil 2013 Firearms Law 101
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and imitation firearms having the appearance, shape and/or configuration of a firearm and produced
or manufactured and entered into commerce on or after May 5, 1989” be either completely
translucent, or completely painted or finished in a day-glo type color not associated with a real
firearm, or have a blaze orange or brighter plug in the barrel, or the last 6 mm of the barrel painted
blaze orange or brighter.
Federal regulation of toy gun marking does not include paintball guns, BB guns, or compressed-air
guns.
Although these are not “firearms” within the federal gun control law definitions, neither are they
toys—they shoot real projectiles that, as every mother has warned, can take your eye out, or worse.
But before I rant along the theme of there’s-never-a-cop-when-you-need-one-to-arrest-parents-whodistributed-illegal-toy-guns-to-their-kids, I have to confess: my 1960’s cap pistol was apparently
illegal as well. New York City has banned any toy gun that was black, blue, silver, or aluminum, since
1955. Subsequent amendments have expanded and clarified the New York City law. Fines for sale
of illegal toy guns are escalating, and the City is collecting millions of dollars in fines from
merchants selling illegal toy guns.
Other states have also adopted toy gun laws. California prohibits the sale of any imitation firearm
which is not blaze orange or day-glo green, for example.
But realistic looking toy guns continue to make the news on a regular basis. In February 2010, BATF
seized a shipment of 30 Airsoft replica rifles which were being imported through the Port of
Tacoma for a Washington state retailer. Airsoft manufacturs BB guns, which are purportedly exempt
from the toy gun marking laws under the federal regulations. However, it appears that the high-end
Airsoft rifles, retailing (according to the Airsoft website) for $300 and up, are battery-operated; the
compression which expels the projectile is created by a battery-driven piston. These models do not
appear to meet the Department of Commerce exemption definition. Thus, they must be marked as
toy guns—as they are pictured on the Airsoft website, with orange barrel-end markings. The seized
Airsoft rifles were not appropriately marked. The latest news reports indicate that BATF intends to
destroy the shipment; firearms advocacy groups are voicing their opposition to ‘toy gun control’.
Meanwhile , in early March 2010, a 3 year old girl in Tennessee shot herself fatally in the stomach
with her stepfather’s pistol. The mother and stepfather voiced their belief that the toddler mistook
the firearm for the family’s Wii remote. The precise model of pistol is not identified in news reports;
however, a photo on a local television news station’s website shows a small, matte black semiautomatic pistol next to the Wii accessory – and the similarity between the two is striking. As of this
writing it appears that no charges will be pressed against the parents in relation to the incident.
Internet buzz has made great hay over the fact that the Wii accessory in question is an illegal toy
gun, without it’s requisite blaze orange markings. However, it’s doubtful that the result in this
incident would have been different if the Wii accessory had been properly marked. This is not an
incident of a civilian or law enforcement officer shooting a child because he or she thought the child
was holding a real gun. This was an instance of a child picking up a real gun and likely trying to use it
in the manner in which she’d seen her parents using the toy gun in the home. Blaze orange paint and
more federal or local toy gun laws would not have changed this situation; nor is it likely that triggerlock and gun storage laws would have made any difference, as according to local news reports, the
firearm was out and loaded to respond to an apparent intruder on the property. That it was left
unattended for but a moment is a tragedy that will no doubt haunt these parents for the rest of their
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lives; but every parent will have to decide for him or herself whether having realistic-looking toy
guns in the house, with or without a blaze marking, is worth the confusion it may cause.
Firearms ownership is an extraordinarily valuable right. For myself, I’d rather impress upon kids the
honor of that right, and not undermine its importance with a toy.
*end*
***********
2. Guns and Bankruptcy
Cindy Ellen Hill, Esq.
Do you get to keep your guns if you file bankruptcy?
I’ll give you that textbook lawyer’s answer: It depends.
Before I bill you for those two sage words of wisdom, let me elaborate. It depends on which type of
bankruptcy you file, which state you file it in, and what other assets you have to your name.
Bankruptcy Exemptions
Some members of Congress attempted to make that answer clearer with a bill called the “Protecting
Gun Owners in Bankruptcy Act.” The 2010 version, introduced by Representative John Boccieri of
Ohio—a Democrat--passed the House overwhelmingly, and was introduced in the Senate by Patrick
Leahy— another Democrat, from my own state of Vermont—but unfortunately never made it to
the floor. The 2011 version was introduced in the House by Republican Tim Griffin of Arkansas,
and died instantly in committee. The bill would have help gun owners in tough economic times keep
up to $3000 worth of firearms while going through bankruptcy.
When you file personal bankruptcy, all your assets other than those deemed “exempt” become part
of the bankruptcy estate, under the control of the court-appointed bankruptcy trustee. When you fill
out your bankruptcy petition, you complete an attachment identifying which items of property you
are claiming as exempt. For example, if you own two cars, and use the federal list which exempts up
to $3450 value of one motor vehicle, you need to specify which car you are keeping to use up that
exemption.
Since the “Protecting Gun Owners in Bankruptcy Act” hasn’t passed into law, firearms owners
going through bankruptcy in one the 15 states that allow debtors to use the federal exemptions list
can keep only so many of their firearms as they manage to qualify under one of the general
exemption categories, such as the household goods listing under “personal property” ($522 per item;
maximum total for all personal property $10,755), tools of the trade (to $2,025), or the ‘wild card’
exemption ($1,075 for any property).
If you are not using the federal exemption list, 17 states plus the District of Columbia and Puerto
Rico have some exemption for firearms, but these vary quite widely. Arizona allows you to keep one
typewriter, one bicycle, one sewing machine, a family bible, a burial plot, and one shotgun or rifle or
pistol—provided the total value of all these items does not exceed a fair market value of $500. Iowa
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lets you keep one shotgun, and either a rifle or musket, with no dollar value limitation on each.
Texas lets you keep “two firearms,” debtor’s choice of make, model and caliber, with no dollar
limitation. Oklahoma lets you keep guns not to exceed $2000, but only if they are for personal and
family use, not for investment purposes; in other words, collector’s items and antiques are right out.
In states without specific firearms exemptions in their bankruptcy laws, you can exempt firearms if
they fit under other personal property or wildcard exemptions that you have not otherwise used.
Chapters 7 and 13
What happens to your other 4,237 firearms that don’t fit in an exemption? It depends on which
form of bankruptcy you have filed.
The two most common forms of personal bankruptcy are Chapters 7 and 13. Chapter 7, available
only to individuals with little to no regular income and limited assets, is a liquidation process. The
trustee takes all non-exempt assets, including those other 4,237 firearms, and sells them, using that
money to pay your creditors, following a priority list set by bankruptcy law. When the assets and
money are gone, you get a discharge that wipes your slate clean and precludes the creditors from
continuing collection actions. (Some types of debts, like student loans and some taxes, cannot be
discharged and you will still need to pay them.)
In theory, if the trustee sells your assets for more than you owe, you would get any excess money
back. But the trustee is likely to stick your collection in an auction and take a low dollar figure for
the whole shebang.
You can file Chapter 13 if ou have regular income and your assets exceed those allowed in order to
qualify for a Chapter 7. If you really do have 4,235 non-exempt firearms, you are likely to have to file
a Chapter 13 rather than Chapter 7. In Chapter 13, the trustee doesn’t sell those non-exempt assets,
but rather assesses their value as part of calculating your Chapter 13 repayment plan. This is a 3 to 5
year plan to repay all or a portion of the money owed to your creditors. As long as you keep up with
the payments, you can keep your assets. But if the trustee determines that your firearms or other
assets have a high value, you might well have trouble keeping up with those payments.
Bankruptcy is intended to give debtors a fresh start by relieving them from overwhelming debt.
Attractive as that sounds, it comes at a price, including filing fees, agonizing amounts of time putting
together financial records and filling out forms, arguing with your spouse, feeling like you’ve been
kicked in the guts, and a big dip in your credit rating. Like a root canal, it’s useful and sometimes
absolutely necessary, but still best avoided if possible.
I rarely advise anyone to get rid of their guns, but if you have an investment firearms collection, and
are at the precipice of bankruptcy, you may want to seriously consider whether selling some of the
items from your collection – in sales that you have more control over – might help avoid the
bankruptcy process and allow you to retain more of your assets in the long term. However,
transferring guns or any other assets just prior to bankruptcy may be considered a fraudulent
transfer and rescinded by the trustee, so it’s best to consult a bankruptcy attorney about how you
can most effectively put the value of your firearms to work for you in difficult financial times.
*end*
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