In Nguyen v. Bonta, a case challenging California’s one-gun-a-month (OGM) law, the United States District Court for the Southern District of California has ruled that the OGM law is unconstitutional and must be enjoined under the historical analog test laid out in N.Y. Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
In the opinion, the District Court held that “[Buying more than one firearm in a specific period of time] is presumptively protected because it is covered by the plain text of the Second Amendment”. They went on to note that the State failed to satisfy its burden of “producing a ‘well-established and representative historical analogue’ to the OGM law,” as required by Bruen.
While it is too soon to make predictions, this case may well be the beginning of the end for these types of unconstitutional restrictions on the rights of law-abiding citizens acquiring arms during the time period of their choosing.
Specifically, the case examined whether Maria T. Vullo, then Superintendent of the New York State Department of Financial Services, unconstitutionally used her political power to coerce banks and insurance companies into no longer doing business with the NRA due to its stance in favor of gun rights.
This is an issue that gun rights advocates have feared for some time, as anti-gun politicians see this as a way to freeze pro-gun organizations out of the marketplace. For example, gun stores have found it increasingly difficult to find insurance companies, credit card processors, and even secure banking services.
In a strong rebuke to Ms. Vullo’s position, the Supreme Court ruled unanimously in favor of the NRA, finding that Vullo’s actions constituted a clear violation of the First Amendment. The Court determined that the regulator’s efforts to influence financial institutions to sever ties with the NRA, based on the organization’s protected speech, were coercive and therefore unconstitutional.
The decision, written by Justice Sotomayor, hits the key issue and the holding in the first paragraph:
Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression”
of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.
This important ruling sets a strong precedent limiting the extent to which government officials can pressure private companies to act against organizations based on their advocacy positions and will provide a framework for challenging other state and federal agencies should this method of cutting off services to the firearms industry continue.
The clock is ticking down for several key Supreme Court cases that impact the firearms community.
The first of these cases is United States v. Rahimi which concerns the constitutionality of 18 U.S.C. § 922(g)(8), a federal law that prohibits individuals subject to certain domestic violence restraining orders from possessing firearms.
The case questions whether this law violates the Second Amendment rights of those individuals given that such a prohibition, based upon limited due process, is unsupported by the historical tradition of gun regulation in the United States, as required by the Bruen decision.
The second case is Garland v Cargill which revolves around whether the ATF exceeded their administrative authority by ‘reinterpreting’ bump stocks as “machine guns”, in direct opposition to years of rulings to the contrary. In layman’s terms, the question is whether administrative agencies, wielding great deference in interpreting statutes, can effectively write new law without being empowered to do so by the Legislature.
While those of us in the legal community have been helping clients file NICS Appeals and Voluntary Appeal File Applications since their inception, they were not designed with NFA applications in mind.
In fact, since July 13, 2016, when the ATF promulgated Rule 41F which moved all NFA background checks to the FBI, the official position of the FBI has been that NFA background checks are not standard NICS checks and therefore, the NICS Appeal process was not available for NFA denials.
However, starting in January of 2024, the ATF and FBI finalized an agreement to allow those denied when undergoing an NFA background check to use the standard NICS appeal process (what the FBI calls a “Firearm Related Challenge”) to dispute the basis of the denial.
They also formalized a method for those whose NFA applications are returned as ‘delayed/open’ by the FBI to use the Voluntary Appeal File (VAF) process to submit information that will allow the FBI to consider the issuance of a Unique Personal Identification Number (UPIN). If a UPIN is issued and used in future applications, it should avoid the research delays that can lead to ‘delayed/open’ dispositions on NFA applications.
It is important to note that, despite the fact that both “NICS Appeal Process” and “Voluntary Appeal File” have the word ‘appeal’ in them, neither of these processes is an actual appeal of a specific NFA application. Rather, they are challenges to the information on your record that led to the denial or delay/open disposition.
If your ‘appeal’ is successful, then it does not reverse the denial. Rather, a new NFA application will need to be submitted, including any UPIN that may have been issued.
If you have received a denial or delay/open disposition status on your NFA application and would like assistance, then feel free to contact me.
The ATF recently announced a number of changes to the way they process NFA applications.
Details of the changes can be found in the FAQ section of eForms when you log into your account.
In online forums, many have reacted by stating that the ATF is giving preferential treatment to individual applicants and questioning whether trusts remain the preferred method of NFA item ownership.
As for the changes themselves, the ATF describes them as follows:
These changes seem to be working. We have already started to see dramatic results as some applicants are reporting turnaround times of weeks or even days for recently submitted forms.
But what about trust applicants? The ATF has this to say:
So does that mean the changes offer no benefits to trust applicants? Not at all! To borrow a phrase from economics, a rising tide lifts all boats. In fact, one of my trust client with a squeaky-clean record and a unique name reported that they applied for 6 suppressors using my trust and they were approved in 24 hours. While I do not expect this to be common, it does illustrate my point perfectly.
As for the list of factors that could result in trusts taking longer, let’s look at them one at a time. Because, when using a properly prepared NFA trust, such as the one I provide, where the owner of the trust is given proper guidance and assistance, most of the factors listed are mitigated or completely eliminated.
For example:
When they see the same trust from the same attorney over and over again, which is true when using my trust, they do not have to read the entire document every time but can rather quickly review the pertinent sections to determine responsible persons, etc;
The guidance I provide on the schedules themselves make it clear who needs to submit a responsible person questionnaire, etc., reducing errors; and
By following my advice regarding minimizing responsible persons, most trust applications also only have a single background check just as is the case with individual applications.
And even if the trust review process itself does make trust applications take longer than individual applications, once the background check is sent to the FBI, the ‘approval upon proceed‘ improvements will equally benefit trust applicants.
Additionally, if many individual application approval times are now to be measured in days, then I would expect many trust applications to be reduced to weeks.
Over the next few months, we will see how the process changes actually impact trust applications. But do not let the ATF or naysayers deprive you of the ability to share and easily pass-on your NFA items merely for a few weeks’ quicker approval.
“John represented me at my hearing in Fairfax County Circuit Court for my Petition for Restoration of Firearms Rights. My case was a bit complex and it incorporated some new legislation that John was very educated on. The legislation was so new that the Commonwealth’s Attorney and the Judge did not have any knowledge of it. John’s actions in the courtroom to bring the new legislation to the attention of the court were astonishing and brilliant; even bringing a smile to the Judge and pat on the back from a fellow attorney after the hearing.
John’s flat rate pricing for representation is amazingly affordable. He is true to his word, communicates through out the entire process and works diligently to represent you. I highly recommend John Pierce.” - Shawn
Outstanding Service
“I contacted John via email regarding trust and estate work that I needed and questions that I had. He called me that same day, walked me through the process, took adequate time and was very patient in responding to my questions. He is very down to earth and professional. I was astounded as I found he was on travel, yet he took the time to personally contact me. He was very responsive in following up with the documents that I needed. I am extremely pleased and appreciative of the time he took with me and his outstanding level of service. I've worked with a number of attorneys in my profession and John exceeds the standards that I am accustomed to. I highly recommend him.” - Ron
In Nguyen v. Bonta, a case challenging California’s one-gun-a-month (OGM) law, the United States District Court for the Southern District of California has ruled that the OGM law is unconstitutional and must be enjoined under the historical analog test laid out in N.Y. Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
The clock is ticking down for several key Supreme Court cases that impact the firearms community.
The ATF recently announced a number of changes to the way they process NFA applications.
