Brief Filed Against Treating Mere Possession Of Short-Barrel Shotgun As ‘Inherently Dangerous’

On July 3, 2014, our firm filed an amicus brief in the U.S. Supreme Court in the case Johnson v. U.S., No. 13-7120. Cases before the U.S. Supreme Court are rarely argued twice – but this is such a case. Briefed last summer, argued in November 2014, and then argued again in April 2015, Johnson v. U.S. is scheduled to be decided in the next few weeks.

It is not rare that our briefs before the U.S. Supreme Court are attacked by left-wing publications, and this is another such case. In fact, Mother Jones attacks our brief because the petitioner is “a white supremacist with a lengthy rap sheet….” Perhaps this is why ours was the only amicus brief challenging Johnson’s conviction. But cases with unsavory facts and unattractive litigants often result in bad law, particularly in the area of firearms law. We have never shied away from filing briefs in such cases. Interestingly, the Mother Jones article also observes that our brief “makes arguments … that echo liberal positions opposing the harshness of mandatory minimum sentencing and the excessive power it grants prosecutors.” It also states “a Johnson victory might also give civil libertarians reason to cheer a check on prosecutorial power.”

The petitioner, Johnson, had been convicted of being a felon in possession of a firearm. Ordinarily, the trial judge would have had discretion to sentence Johnson up to 10 years in prison. However, the judge determined that Johnson met the definition of an “armed career criminal” under federal law, thus subjecting him to a mandatory minimum sentence of 15 years.

An “armed career criminal” is a person who, among other things, has previously been convicted of three or more “violent felonies.” One of Johnson’s past felonies was nothing more than simple “possession” of a short-barreled shotgun – which the Eighth Circuit ruled to be a violent felony.

Our amicus brief argued first that, as a threshold matter, possession of a short-barreled shotgun does not constitute proof of “conduct” (which is required under the statute defining “violent felony”). The shotgun at issue had simply been found in the car in which Johnson was a passenger. “Possession” of a shotgun can involve either “actual possession” – such as holding the shotgun – or, as in Johnson’s case, “constructive possession” – which requires only knowledge of the whereabouts of the shotgun plus the ability to control it.

Johnson’s constructive possession did not constitute any “act” or physical contact with the shotgun; and, thus, he did not engage in any “conduct” according to that word’s ordinary usage. Every other crime that has been found to fit under the statute in question has involved clear conduct on the part of the defendant, such as attempted burglary, escape, vehicle flight, etc.

Indeed, the statute expressly states that unlawful “use” of explosives is a violent felony – implying that mere possession of explosives (even though intrinsically dangerous) is not. How, then, can mere possession of a short barreled shotgun (which is not intrinsically dangerous) be included? Indeed, a shotgun by itself is a danger to no one. An illegal shotgun with no federal paperwork is no more intrinsically dangerous than a legal shotgun with federal paperwork.

Next, our brief challenged the Eighth Circuit’s statement that short-barreled shotguns serve no purpose whatsoever “except for violent and criminal purposes.” Congress has made it legal for Americans to jump through some hoops and own short-barreled shotguns – which it clearly would not have done if short-barreled shotguns are only used for violent crimes. Indeed, short-barreled shotguns are widely used by law-abiding citizens, along with both the police and the military.

Thus, our brief argued that short-barreled shotguns serve many lawful and legitimate purposes, including being particularly suited for self-defense in the home. The shotgun is second only to the handgun as a top choice for home defense. A shotgun with a shorter barrel makes it more maneuverable in confined spaces within the home. This makes the shotgun more efficient and reduces the chance that the barrel will be grabbed and redirected by an assailant. A shorter barrel also reduces the forward weight of a shotgun, making it much easier to use by all persons, but especially those of smaller stature and strength.

No wonder even Joe Biden has urged women to buy a double-barreled, 12-gauge shotgun.

Following oral argument on November 5, 2014, the Supreme Court ordered supplemental briefing on the issue of whether the residual clause of the Armed Career Criminal Act is unconstitutionally vague. The parties filed supplemental briefs, and the case was re-argued on April 20, 2015. A decision by the Court is expected in the coming weeks.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Copyright © 2015 William J. Olson, P.C. All rights reserved.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

“Rudy v. Lee” Supreme Court Case Could Put Spotlight On Obama’s Constitutional Eligibility

obama bummed

Last week, our firm filed a friend-of-the-court brief in the U.S. Supreme Court, supporting a patent attorney’s claim that a law mandating an increase in patent application fees was invalid because it was signed into law by President Obama, who does not meet the constitutional requirement to be a “natural born citizen.” The lower courts in the case ruled that the question of President Obama’s citizenship is a “political question” and thus an issue for Congress, not the courts,­ to decide.

Until now, the question of President Obama’s qualifications as a “natural born citizen” has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court–and thus lacked “legal” standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90.00 because of the new law signed by President Obama.

Also, until now, no one has questioned the validity of a law signed by the President. Rather, previous cases have sought the removal of President Obama from the presidential ballot or from office altogether. In this case, however, the complaining patent attorney is not seeking President Obama’s removal from office, but simply a refund of his $90.00 and a declaration that, unless he is a “natural born citizen,” President Obama does not have the constitutional authority to sign a bill into law. Yet, the courts are attempting to avoid declaring what the law is based on the judge-made expedient of labeling the issue a “political question.”

In addition to possessing the standing that prior challengers lacked, Mr. Rudy’s case comes at an opportune time ­ just two months after the U.S. Supreme Court unanimously held in National Labor Relations Board v. Canning that an Order of the NLRB was invalid because three members of the board were constitutionally ineligible to serve.

Our amicus brief in Rudy argued that if the U.S. Supreme Court can decide whether members of the NLRB meet the constitutional requirements of their office, it can also decide whether the President of the United States meets the constitutional requirements of his office.

Further, as our brief demonstrated, the requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the President’s sworn oath to “defend, preserve, and protect” the Constitution of the United States.

Many object to any challenge to the eligibility of a president, or presidential aspirant; but if the law is to apply equally to every person, Presidents cannot be deemed to be above the law based on vague tests such as whether the case presents “political question.” Indeed, demonstrating that the term “natural born citizen” is a constitutional requirement that has continuing political significance that needs resolution are questions not just about President Obama, but also about Republicans Marco Rubio, Rick Santorum, Ted Cruz, and others.

Our brief was filed on behalf of U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, U.S. Border Control, U.S. Border Control Foundation, Institute on the Constitution, Policy Analysis Center, and Conservative Legal Defense and Education Fund.

 
William J. Olson, P.C., Attorneys at Law
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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Brief Filed Opposing Unconstitutional Stops By Police

On June 16, 2014, our firm filed an amicus curiae brief in the U.S. Supreme Court in support of a North Carolina man who challenged the constitutionality of his traffic stop. A police officer pulled Nicholas Brady Heien over because his car’s right rear brake light was not functioning properly. However, North Carolina law requires only one working rear “lamp.”

The Supreme Court of North Carolina had ruled that the Fourth Amendment requires only that the police act “reasonably,” based on a judicial evaluation of the “totality of the circumstances.” Applying a type of freestanding balancing test derived from past Supreme Court cases, the court decided that it believed the police officer’s alleged mistake of law was a reasonable one. Thus, the old maxim has been revised to “ignorance of the law is no excuse — unless you are the one enforcing the law.”

According to this view of the Fourth Amendment, the Constitution protects only a “right to privacy,” which is balanced against the government’s interest in violating the right. Ordinarily, the privacy intrusion is deemed insignificant; and the governmental interests are deemed “compelling.” Here, the government’s interest was “traffic safety.”

However, in two recent cases, U.S. v. Jones and Florida v. Jardines, the Supreme Court has begun to return Fourth Amendment jurisprudence to its original property basis; and our brief urges the Court to continue that trend in this case.

Our brief argues that the Fourth Amendment be understood to protect property rights, not some judge’s view of a “reasonable expectation of privacy.” Applying this property basis, if the government does not have a superior property right to the person or thing to be searched or seized, then the search or seizure is per se unreasonable. Judges do not have the authority to decide that traffic safety is more important than property rights.

Since Heien was violating no law when he was stopped, the state objectively had no property interest in his person or in his car. For that reason alone, the stop violated the Fourth Amendment, regardless of how “reasonable” some North Carolina judges subjectively believed the police had acted.

Copyright © 2014 William J. Olson, P.C. All rights reserved.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Lawsuit Looks To Overturn Connecticut’s Assault Weapons Ban

Our firm filed in the U.S. Court of Appeals for the Second Circuit an amicus brief in support of Connecticut gun owners who challenged Connecticut’s ban of so-called “assault weapons” and “large capacity magazines.”

The law being challenged was passed by anti-gun Connecticut legislators and signed by an anti-gun Governor, riding a wave of hysteria following the December 2012 mass murder of elementary school children in Newtown, Connecticut. Those supporting the law claimed that to stop the violence, “military style” weapons must be banned.

A few days after we filed our brief, in Santa Barbara, California — the state which proudly claims to have the strictest anti-gun laws in the nation — another mentally deranged young male demonstrated that the problem is not guns. Indeed, in Santa Barbara, the shootings took place over a 10-minute period, during which there were no armed civilians who could take action to stop the shooter. The only gun problem is laws keeping guns from law abiding citizens.

In court, Connecticut made the old, tired arguments that the ban is necessary to protect the police and further public safety. The district judge agreed. Despite finding that the ban “substantially burdened” the Second Amendment right to keep and bear arms, he felt the burden was not unreasonable in light of the competing public interest. Even though rejected by the U.S. Supreme Court in the Heller (read decision here) case, the district court used a judge-empowering “balancing test” to justify the ban. This “test” barred access to semiautomatic weapons that even the trial judge admitted were constitutionally protected arms.

Our brief argued that the judicial standard of review for Second Amendment cases is the amendment’s text itself — “shall not be infringed.” If (i) a person is part of “the people,” (ii) a firearm is an “arm,” and (iii) the activity involves “keeping” or “bearing” — then the right is absolute, not subject to balancing against the interests the government has in violating the right. Since it is abundantly clear that these requirements are met in this case, the Connecticut ban must be struck down. It does not matter if the state provides “alternate access to similar firearms.” It is up to the American people, not the government, to choose which weapons “secure” a “free state” against tyrants — the stated purpose of the First Amendment.

Our brief also argued that the Connecticut ban, by exempting favored government employees and those “persons” who submitted to the state’s registration system, creates unconstitutional “titles of nobility” for the state’s favored few. The Supreme Court has said that the Second Amendment is a right that belongs to “all Americans,” not just “an unspecified subset.”

Our brief was filed on behalf of: Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Oregon Firearms Educational Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.
Copyright © 2014 William J. Olson, P.C. All rights reserved.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom