Supreme Court rules unanimously in NRA’s favor in Vullo case

Posted on May 30, 2024 by John Pierce

In today’s Supreme Court decision regarding National Rifle Association of America v. Vullo, the key issue centered on whether a New York state regulator’s actions violated the NRA’s First Amendment rights.

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.

Posted in 2A, Court Rulings, Federal Court, First Amendment, SCOTUS, US Supreme Court | Comments Off on Supreme Court rules unanimously in NRA’s favor in Vullo case

Important Supreme Court decisions that are expected by the first week of July

Posted on May 30, 2024 by John Pierce

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.

I will report on the rulings as they are issued.

Posted in Administrative Deference, Administrative Law, ATF Ruling, BATFE, Bruen Decision, Bump Fire Stocks, Court Rulings, Domestic Violence, Due Process, Federal Court, Federal Law, Machine Guns, Prohibited Persons, Regulatory Rulemaking, SCOTUS, Second Amendment | Comments Off on Important Supreme Court decisions that are expected by the first week of July

It is finally possible to use the NICS appeal process for NFA denials

Posted on May 29, 2024 by John Pierce

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.

Posted in 41F, Administrative Law, ATF, ATF Ruling, Background Checks, BATFE, FBI, NFA Denials, NFA Open Disposition, NFA Transfers, NICS, Prohibited Persons | Comments Off on It is finally possible to use the NICS appeal process for NFA denials

Why the new eForms processing rules are actually good news for trust applicants

Posted on March 2, 2024 by John Pierce

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.

I assure you that they do.  Trusts continue to offer  usage, asset protection, and estate planning benefits that individual ownership cannot provide.

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:

  1. 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;
  2. The guidance I provide on the schedules themselves make it clear who needs to submit a responsible person questionnaire, etc., reducing errors; and
  3. 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.

Posted in ATF, BATFE, eForms, Form 1, Form 23, Form 4, NFA Transfers, NFA Trusts | Comments Off on Why the new eForms processing rules are actually good news for trust applicants

Understanding the confusing March 1 ATF eForms email

Posted on March 2, 2024 by John Pierce

During the last week of February, eForms was down for several days, affecting submissions from FFLs and gun-owners alike.

On Friday March 1, the ATF sent out an email to all eForms users announcing that the eForms system outage was over.

The email they sent was as follows:

Since this email was sent, my phone has been ringing off the hook with customers asking how to file a Form 2 by Monday and why they need to do so.

Is it too much to ask for the ATF to have considered the breadth of the audience they were emailing?  It would have reduced the anxiety of thousands if they would have just added a few clarifying words to the email.  Maybe something like the following:

To summarize … unless you are a licensed importer or manufacturer, the only part of this message that applies to you is the notification that the outage is over.

Posted in ATF, BATFE, eForms, Form 2 | Comments Off on Understanding the confusing March 1 ATF eForms email