SUPREME COURT TO DECIDE IF 2ND AMENDMENT APPLIES TO STATES
By Robert M. Hausman
At issue is a 27-year-old Chicago, IL law banning handguns, requiring the annual taxation of firearms, and otherwise interfering with the right of law-abiding individuals to keep firearms at home for self-defense.
The case was brought on behalf of four Chicago residents, the Second Amendment Foundation, and the Illinois State Rifle Association.
Last year, in the landmark case of District of Columbia v Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. However, as that case concerned the actions of the District of Columbia government, a federal entity, the high court was not called upon to decide whether the right bound states and local governments. Over the years, almost the entire Bill of Rights has been held to apply to state and local governments by operation of the Fourteenth Amendment (the relevant portion of which states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor to deny to any person within its jurisdiction the equal protection of the laws.”
“The freedoms we enjoy as Americans are secured to us against violation by all levels of government,” noted Alan Gura, of Gura & Possessky, PLLC, lead counsel for the McDonald plaintiffs. “State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town.”
Otis McDonald, a Chicago resident since 1952, the namesake of the case, led a fight to integrate his local union in the 1960s and is a plaintiff in the case. “I am grateful the Supreme Court has agreed to hear this case,” he said. “I now pray that the court secures me and all other law-abiding citizens the right to defend ourselves and our families.”
SAF founder Alan Gottlieb noted the importance of the case to ensure that Americans’ constitutional rights are respected not only by Congress, but by state and local governments. “A gun ban is no less onerous to civil rights in Chicago than it was in the District of Columbia,” Gottlieb observed. “Such a law cannot be allowed to stand unchallenged.”
At stake in the Chicago gun ban challenge is not only the question of whether the Second Amendment protects the Right to Keep and Bear Arms from any state and local government law or regulation, and also the extent to which the Supreme Court preserves individual liberty against encroachment by state and local governments.
Oral argument will possibly be scheduled early this coming winter, with a decision expected by June 2010. Gura will argue the case on behalf of the McDonald plaintiffs.
In the June ruling that the Supreme Court will now review, the U.S. Court of Appeals for the Seventh Circuit held that the Second Amendment does not apply to state and local governments. That opinion left in place the current ban on the possession of handguns in Chicago.
However, the National Rifle Association (which is apparently not involved in the current suit) points out that Seventh Circuit incorrectly claimed it was bound by precedent from 19th century Supreme Court decisions in failing to incorporate the Second Amendment. Many legal scholars believe that the Seventh Circuit should have followed the lead of the earlier Ninth Circuit panel decision in Nordyke v Alameda County, which found that those cases don’t prevent the Second Amendment from applying to the states through the Due Process clause of the Fourteenth Amendment. To the contrary, a proper incorporation analysis supports application of the Second Amendment to the states.
ATF Importer’s Meeting (Part II)
In this second installment of SAR’s coverage of ATF’s Annual Importers Conference held August 10-11th in Washington, D.C., we pick up with the presentation by the U.S. Department of State.
Chuck Schwingler of the State Dept.’s Bureau of Political-Military Affairs Office of Defense Trade Controls Licensing presented an overview of his agency’s mission.
The Directorate of Defense Trade Controls (DDTC) within the State Dept. licenses direct commercial sales in defense articles and the development and enforcement of defense trade export control laws, regulations and policies. This includes both permanent and temporary exports of defense articles and defense services as well as temporary imports of the same. Its authority is derived from 22 U.S.C. 2778-2780 of the Arms Export Control Act and 22 CFR Parts 120-130 in the International Traffic in Arms Regulations (ITAR).
In accordance with Executive Order 11958, the State Dept., in concurrence with the Dept. of Defense, determines what commodities are covered by the U.S. Munitions List (USML). Items covered by the USML can be found in Part 121 of the ITAR. All commodities listed in the USML require the exporter to be registered with the DDTC. Exporters of such articles also must have an export license.
Dept. of State approval of a license application is required prior to the export of defense articles or defense services. During the application process, a computerized review of all parties to the proposed transaction is made against a “watch list” of known or suspected export violators. A “match” results in a full compliance review by the State Dept. before final action is taken on the application. End-use checks are conducted through the “Blue Lantern” program to monitor verifications of defense exports.
As per Section 123.15(a) (3) of the ITAR, a license application for the export of firearms with a total value of $1 million dollars or higher requires Congressional notification. Form DSP-5 is used for the permanent export of firearms and ammunition. Form DSP-83 is also used for the export of full-auto firearms, rifles in caliber .50 or higher, fifty or more firearms or 100,000 or more rounds of ammunition. Form DSP-73 is used for the temporary export of firearms & ammunition.
Form DSP-61 is issued for the temporary import of firearms & ammunition. An invitation and/or registration document for the event, the length of time the imports will be in the U.S. along with details on how the imports will be secured while in the U.S. must be furnished with the form when firearms/ammunition are being temporarily imported for use at trade shows and exhibits. Similar documentation must be provided with applications for temporary import for the purposes of demonstrations and testing.
Non-automatic obsolete firearms made in or before 1898 as well as replicas of such firearms are exempt from licensing.
U.S. persons may temporarily export up to three non-automatic firearms and no more than 1,000-rounds of ammunition for their personal use without a license provided the guns/ammo are not re-exported or otherwise undergo a transfer of ownership.
Components and parts for Category 1 firearms are exempt from licensing requirements when the total value does not exceed $100 wholesale in any single transaction. Barrels, cylinders, receivers (frames), or complete breech mechanisms are major components and require a license. Parts dealers have been trying for years to get this $100 exemption raised without success.
A shipment originating in Canada or Mexico that incidentally transits the U.S. en route to a delivery point in that same country is exempt from the requirement for an in-transit license.
The mention of this exemption prompted a response from a major ammunition importer who related how his goods (small arms ammunition) en route from the factory in Eastern Europe to a South American country was seized upon discovery by U.S. Customs when the ship it was carried on temporarily stopped in a U.S. port to unload other cargo.
ATF representatives responded that an in-transit license is required for the goods as it entered U.S. waters and was thus in U.S. territory, even though there was no intention to unload the ammunition onto U.S. soil.
It was also mentioned that U.S. persons not in the business of manufacturing or exporting defense articles, related technical data, or furnishing defense services, may request a one-time exemption from the registration requirements for permanently exporting or temporarily importing firearms and ammunition. A letter requesting the one-time exemption along with a completed paper DSP-5 license application is required.
More information is available at the Directorate of Defense Trade Controls web site: www.pmddtc.state.gov.
Dept. of Commerce Presentation
The U.S. Dept. of Commerce Bureau of Industry & Security (BIS) made the last presentation of the gathering.
Ronald Rolfe, a Licensing Officer in the Export Administration and Scot Gonzales, Special Agent in export enforcement, noted that the BIS maintains a licensing system for the export of shotguns and all related items to all Organization of American States member countries. Items subject to these controls can be found on the Commerce Control List.
The countries these controls apply to are: Antigua, Argentina, The Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, St. Kitts and Nevis, Saint Lucia, The Grenadines, Suriname, Trinidad and Tobago, Uruguay and Venezuela.
Additionally, a license is required to export and re-export crime control and detection equipment, related technology and soft-ware. Items subject to these controls are also identified in the Commerce Control List.
Items requiring a license under these sections of the regulations include: shotguns with a barrel length of 18-inches or over and related parts, to include buckshot shotgun shells; shotgun shells and related components; and, optical sighting devices. Additional information is available from Exporter Services by calling (202) 482-4811. Also visit: www.bis.gov.
Other points noted during the gathering are: out of 40 employees at the Firearms & Explosives Services Division, only 2 have elected to move with their office to Martinsburg, West Virginia. This has resulted in a curtailment of services to licensees as new employees have to be trained.
There are continuing complaints of actions taken by Customs & Border Protection employees by the industry present at the gathering. It was mentioned that some 42% of CBP inspectors have been on the job for less than 3 years, resulting in the large numbers of mistaken actions that the industry has complained of.
Always well-attended, the annual Importer’s Meeting also provides an opportunity for networking and doing business among the attendees. It’s open to licensed importers/exporters only.
Blasts at PPU Factory Kill Seven, Production delayed
A series of four late night underground explosions at the PRVI Partizan (PPU) ammunition and explosives producing factory in Užice, Serbia killed seven workers and injured another fourteen. The cause of the September 3rd blasts is under investigation said plant Director Dobrosav Andric.
Production at the factory, which has been in operation in most years since 1928, has been delayed for an estimated 30 days as a result. The factory is situated about 200 km southwest of the capital, Belgrade.
The series of explosions that rocked the facility occurred at about 10 p.m. local time and spurred fires inside the factory. Responding firefighters put out the blaze.
PRVI Partizan is Serbia’s largest ammunition factory with about 600 employees. While none of the machinery in the plant was damaged by the explosions, a flood caused by the activation of the plant’s sprinkler system was said to cause some damage.
The factory is reported as having stepped up production during the past two years with its main export customers being Iraq, Libya, the United States and Burma. The total value of Serbia’s 2008 arms exports is believed to be over $600 million. Serbian Defense Minister Dragan Sutanovac announced a $100 million export deal for weapons and military equipment to Iraq in recent weeks.
In a late breaking development, the Serbian government announced five workers at the factory had been arrested on unspecified negligence charges related to the cause of the explosion. It has further been determined that the cause of death of those killed was due to carbon monoxide poisoning. The arrested workers were said to have not followed factory procedures on the handling of gunpowder.
The PPU factory’s production in small arms ammunition is imported into the U.S. by TR&Z USA Trading of Stratford, Connecticut under the PRVI Partizan label. TR&Z also imports ammunition components for such firms as Graf & Sons. The Wolf Gold ammunition line (produced by PPU) is also imported by TR&Z as are much of the PPU blank ammunition used by the motion picture industry.
Century International Arms imports PPU ammunition as well under their proprietary “HotShot” label. The PPU brand was also formerly imported by the Hansen Cartridge Co. of Southport, Conn.
New D.C. Suit Seeks Next Step – Licensed Carry
A new lawsuit against the Washington, D.C. government argues that city laws banning the carrying of handguns in public violates the Second Amendment. It asks that the District be required to issue carry licenses to city residents and to those with valid licenses issued in other places.
The suit is brought by the Second Amendment Foundation, three D.C. residents, and a non-resident, Edward Raymond.
In April 2007, Raymond was stopped for speeding in the District while transporting a gun he had permits for in Maryland and Florida. He was charged with carrying a pistol without a license and plead guilty to misdemeanor unregistered gun and unregistered ammunition charges. The District refused to grant Raymond a license to transport his gun through the city.
Alan Gura, who successfully argued the Heller case against the District, is the plaintiff’s attorney. Gura said that since his client, who lives outside the District, cannot obtain a firearm transport license when he travels through city limits, the law stifles his Second Amendment rights.
Meanwhile the District has filed a motion to dismiss the suit. D.C. Attorney General; Peter J. Nickles argues that current city gun laws, which allow for keeping a firearm in the home for personal protection, meet the standard of the Second Amendment.
“The District’s regulation of handguns at issue here is squarely in the mainstream and eminently reasonable, minimally intruding on the right announced in Heller to bear arms for the protection of ‘hearth and home’, while at the same time safeguarding public safety under traditional police powers,” Nickles argues.
22 Congressional Sportsmen’s Caucus Members Vote to Confirm Anti-Hunter Sunstein
No less than 22 members of the Congressional Sportsmen’s Caucus, which is supposedly dedicated to sportsmens’ issues, recently voted to confirm Barack Obama’s nominee, anti-hunter Cass Sunstein, to head the Office of Information and Regulatory Affairs.
Sunstein is widely viewed as a proponent of animal rights, as being against hunting and (although he denies it) being against the Second Amendment.
Of the 63 senators who voted in favor of Sunstein, 22 were members of the Congressional Sportsmen’s Caucus, reports the U.S. Sportsmen’s Alliance.
“We were disappointed that so many members of the Senate claiming to be pro-sportsmen voted in favor of a nominee who has expressed that recreational hunting should be banned,” USSA president Bud Pidgeon said. “Sportsmen all across America will clearly be able to see which senators were willing to stand up for them.”
Sunstein’s position can pose a threat to shooters and hunters given the influence he will have in implementing federal rules that could affect gun owners.
U.S. Sues First Choice Armor
The U.S. federal government has filed a lawsuit against First Choice Armor & Equipment, Inc., and its founder, Edward Dovner, for allegedly submitting false claims for bullet resistant vests purchased by law enforcement agencies.
First Choice sold such vests containing Zylon fiber from 2000-2005 as a lightweight alternative to traditional vests. The suit alleges the company knew of “significant” manufacturing and degradation problems in the Zylon fiber that rendered the material unsafe for ballistic use. In fact, when the Justice Dept.’s National Institute of Justice tested eight of First Choice’s vests in 2005, all were reported as having failed.
The government is also suing Dovner and his wife for fraudulent conveyance – a transfer of property made to hinder a creditor – a violation of the Federal Debt Collection Procedures Act. The government alleges that after learning of the investigation into Zylon vests, Dovner and his wife withdrew more than $5 million from First Choice. Dovner then purchased a Ferrari, a Maserati and a private jet through various shell companies.
The U.S. is also pursuing lawsuits against Toyobo Co., the manufacturer of the Zylon fiber, as well as Second Chance Body Armor, Honeywell International, Inc. and at least two other vest makers. Five other firms involved in the manufacture or sale of such vests have settled similar cases for over $47 million.
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.
|This article first appeared in Small Arms Review V13N4 (January 2010)|