Texas & U.S. Law Shield Independent Program Attorney Michele Byington discusses the state of Constitutional Carry with host Sam Malone.
Texas & U.S. Law Shield Independent Program Attorney Michele Byington discusses the state of Constitutional Carry with host Sam Malone.
Trump Signs Repeal of Obama-Era Social Security Gun Prohibition Rule. Read more…
On Tuesday, Feb 28, President Donald J. Trump signed the repeal of an Obama-era Social Security Administration (SSA) rule that would have resulted in some 75,000 law-abiding beneficiaries losing their Second Amendment rights each year.
The SSA rulemaking was issued in the waning weeks of Obama’s presidency and targeted those receiving disability insurance or Supplementary Security Income based on SSA’s listed mental disorders and who were appointed a “representative payee” to help them manage their benefits. The agency — for the first time in its history — sought to portray these individuals as “mental defectives” who were prohibited from acquiring or possessing firearms under federal law. It had planned to notify them of their prohibited status and to report them to NICS.
Making matters worse, the beneficiaries would have had no ability to argue about their suitability to possess firearms before their rights were lost. Instead, they would have been reduced to filing a petition for “restoration” of their rights, an expensive and bureaucratic process that would have required them to pay for a mental health evaluation and to prove they were not dangerous, a premise the government never established in the first place.
The plan drew fire not just from the NRA, but also from the ACLU and a wide range of mental health advocacy and treatment groups from across the political spectrum. Also opposing the plan was the National Council on Disability (NCD), an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities. The NCD issued a statement explaining:
Since the action was first proposed in 2013, NCD has consistently taken the position that equating the need for assistance in managing one’s finances with a false presumption of incapacity in other areas of life, including possession of a firearm, unnecessarily and unreasonably deprives individuals with disabilities of a constitutional right and increases the stigma that [affects] those who may need a representative payee. The overly broad classification of “mental disorder,” includes a wide range of limitations and a shifting set of criteria relevant to whether or not one can engage in substantial gainful activity. NCD remains steadfast in our position that this classification remains irrelevant to the question of whether one can be a responsible gun owner.
The SSA received tens of thousands of comments in opposition to the rule. The NRA-ILA’s submission explained in detail how the rule was contrary to the underlying statute, to the U.S. Constitution and would function mainly to stigmatize the SSA beneficiaries and discourage others from seeking treatment and benefits to which they were entitled. It also argued that there was no empirical support for the notion that the rule would promote public safety.
The SSA, however, ignored the comments and issued the rule essentially as proposed.
It also brazenly brushed aside proffered evidence that the targeted beneficiaries were not at any increased risk for committing violence with firearms. “We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence,” the SSA wrote. “Rather, we are complying with our obligations under the NIAA, which require us to provide information from our records when an individual falls within one of the categories identified in 18 U.S.C. 922(g).”
Fortunately, pro-gun majorities in the U.S. House and U.S. Senate acted quickly to disapprove the rule under the Congressional Review Act, a federal statute that allows Congress to use an expedited legislative process to overrule administrative actions passed in the waning days of an outgoing administration.
The efforts to roll back this unjustified and legally unauthorized rule were predictably met with a withering barrage of negative and fake reporting from the anti-gun media, with supposed “news” outlets issuing such ludicrous headlines as “Senate, House hand guns to seriously mentally ill.” All these reports completely ignored the fact that existing restrictions on persons who had been involuntarily committed or adjudicated mentally incompetent remained fully intact. By acting to block the rule, Congress simply disapproved the Obama administration’s attempt to create a new class of prohibited persons by “reinterpreting” a federal gun control statute passed in 1968.
President Trump’s signing of the measure not only served to help repair the damage to the Second Amendment wrought by the Obama administration, it ushered in what many hope will be a new era of respect for the right to keep and bear arms. Just over a month into his presidency, Trump signed a free-standing pro-gun bill into law.
The NRA, of course, was among the earliest and staunchest supporters of Trump’s presidential bid. We thank him for his quick action on this measure and look forward to working with him and the pro-gun majorities in Congress to protect Americans’ Second Amendment rights.
When a Colorado member was confronted by two angry men in a grocery store parking lot, he tried to defuse the situation by showing his firearm. Watch Member Ambassador Sherry Hale explain why our Member got arrested — and learn the simple step you can take to avoid a similar fate.
Texas Law Shield Independent Program Attorney Emily Taylor discusses the intricacies of the law of self defense in Texas when people are doing bad things at night. Does darkness expand your ability to protect yourself and your property?
As Texas & U.S. Law Shield have previously reported, advocates of hearing protection want to pursue new legislation to make suppressors easier to buy, and a key backer is Donald Trump, Jr.
“It’s about safety,” Trump Jr. explains in the video interview above recorded last September with the founder of SilencerCo Joshua Waldron. “It’s a health issue, frankly.”
“Anyone who has ever worried about hearing loss from shooting might want to lend their ears to this cause!” said Emily Taylor, an attorney at the Houston law firm of Walker & Byington.
Now the issue is advancing on several fronts.
On January 9, 2017, Congressman Jeff Duncan (R-SC), co-chair of the Congressional Sportsmen’s Caucus (CSC), introduced H.R. 367 to remove suppressors from the National Firearms Act control and treat them the same as long guns, replacing the outdated federal transfer process with an instantaneous NICS background check.
The measure picked up 42 Republican co-sponsors, including fellow CSC member Congressman John Carter (R-TX), and one Democrat co-sponsor, CSC Co-Chair Gene Green (D-TX). The measure was immediately referred to the House Ways and Means Committee and the House Judiciary Committee.
The bill, whose official title is “To provide that silencers be treated the same as long guns,” takes a public-health angle to safeguard the hearing of the nation’s 55 million gun owners.
Sen. Mike Crapo (R-Idaho) introducted the similar Hearing Protection Act of 2017 (S. 59) in the Senate.
“This legislation will enable gun owners to have better access to hearing protection products and improve safety for the shooting sports by removing extensive wait times for burdensome paperwork processing that does not advance public safety,” said Lawrence Keane, NSSF senior vice president and general counsel. “NSSF is appreciative of Sen. Crapo’s leadership on this firearms safety issue and his willingness to stand alongside lawful American gun owners, hunters, and shooting sports enthusiasts.”
An earlier measure with the same goal is H.R. 3799, known more widely as the Hearing Protection Act of 2015.
About all the bills, Taylor explained, “Currently, the manufacture, purchase, and possession of firearm silencers are regulated by the ATF and must comply with the requirements laid out in the National Firearms Act. Similar to a short-barreled rifle or shotgun, anyone who wants a firearm suppressor must first get approval from the ATF and pay the required tax. An extended waiting period comes along with the time it takes the ATF to process these requests.”
“The Hearing Protection Act seeks to amend the law so that firearm silencers are treated the same way as long guns,” Taylor added. “The bill would make it so that there is no longer a tax associated with the transfer of a firearm silencer, and anyone who pays a tax on a silencer after October 22, 2015 could receive a refund of such tax.
“Additionally, anyone who possessed a firearm silencer would be treated as meeting any registration and licensing requirements of the NFA. Lastly, the bill would preempt certain state laws that tried to impose taxes or registration requirements on firearm silencers.”
Montana’s Attorney General says Missoula’s gun background check ordinance violates Montana state law.
Originally reported January 26 by Taylor Winkel, NBC Montana
“Missoula’s ordinance is outside of its authority,” Montana Attorney General Tim Fox said. Fox issued an opinion saying state law does not allow cities to exercise any power that affects the right to bear arms.
The ordinance in question was passed in September 2016. It requires private sellers to complete a background check before selling a gun. That means if you’re a gun owner and want to sell your firearm to a friend or colleague, you’re required to run a background check on the buyer, which means the paperwork must be handled by a federally-licensed firearms dealer.
“If there’s going to be one more extra step for somebody to get a gun that can harm somebody, either on purpose or on accident, I think ‘why not’ and create a safer environment for everyone if possible,” Jack Dawson, a Missoula resident told NBC Montana. Missoula City Council member Bryan Von Lossberg sponsored the legislation. He said that he is not surprised by the Attorney General’s decision but does not see a “clear path of appeal.” Von Lossberg says he believes the ordinance is effective and necessary but expected the ruling as the Attorney General had made his position “clear” long before the AG’s ruling was issued.
Von Lossberg also said the council was advised the ordinance was within the law by the city attorney, Jim Nugent. “He absolutely was consulted and issued an opinion making it clear the city was absolutely in its rights to pass this,” explained Von Lossberg.
The attorney general didn’t directly comment on what the city of Missoula needs to do with the ordinance, but did say common sense would be to stop enforcing the ordinance. Right now, Von Lossberg says there’s no immediate plan to appeal the Attorney General’s opinion.
Fox noted Missoula does have certain powers as a charter city, saying it does have the authority to regulate the use and carrying of firearms under state law. However, Fox says state law doesn’t allow Missoula to have an ordinance “enforcing a local regulation or ordinance requiring background checks on firearm sales or transfers within its borders.”
Montana passed a state preemption law thirty years ago to prevent a patchwork of contradictory firearms laws from being enacted across the state. The state previously allowed cities to make their own laws regarding firearms sales, Fox wrote in his opinion, but a 1985 House bill repealed that section of the MCA and replaced it with new language that still is in place. “The purpose of HB 643 was clear — only the state should decide how firearm purchases, sales, and transfers should be regulated, if at all.”
Every Member has to make the decision to intervene in a fight — or not — based on a host of tactical and safety issues. Member Ambassador Sherry Hale interviews Texas Law Shield Independent Program Attorney Michele Byington to learn how Good Samaritans can stay out of legal trouble if faced with these dangerous situations.
Make sure to check your states laws on protecting yourself, and those around you. Every state is different. Some have clear-cut laws defining the shooters rights, some are vague, and some states have no laws on the books at all, but rather court cases by which to stand behind. Ohio is a rare case, where the shooter (person using deadly force to protect him/herself) must prove their justification for defending themselves.
Post in the comments what the law says in your state!
Perhaps you heard what recently happened to our friends at Full Armor Firearms in Houston.
After 13 burglaries in five years, including one earlier this month, owner James Hillin asked two of his employees to stay overnight in the store.
During the night, two cars pulled into the parking lot. According to the Houston Chronicle, when the Full Armor workers stepped outside with their weapons, one of the five men, who were standing near the employees’ cars, shot at them. The employees were not injured, and gunfire was exchanged as the men drove away.
You can read the whole story, including an interview with owner James Hillin, the criminal backgrounds of the men who were detained, and the likelihood of the case being presented to a grand jury here:
We asked Michele Byington, an attorney at the law firm of Walker & Byington, PLLC, and independent program attorney for Texas Law Shield, for her opinion on the situation and she says the employees were acting legally.
“Here in Texas, both burglary and theft during the night time are considered crimes against which a person may use deadly force. In fact, displaying a firearm to cause apprehension that you will use it if necessary, is considered force, rather than deadly force. So the employees, even though they potentially could have used deadly force, were just using force to stop this situation when they displayed their AR-15s.”
She went on to explain that, while there are very few circumstances where you can shoot a person who is fleeing (and even then, she added, it will be an uphill battle with a jury), the fact that the criminals shot at the employees while running away, justified the return fire by the employees.
“Any time a person has a reasonable belief they are in immediate danger of death or serious bodily injury, they may use deadly force to defend themselves. And someone shooting at you definitely qualifies for that!”
Ultimately, Michele stated, the gun store employees acted well within the confines of the law.
Original Article by: Michael Wisdom
New Orleans resident John Ford has the distinction of being the only private citizen with the right to carry a stun gun or TASER within the city limits. But even that right has been limited to just a 90-day period that began on December 14, 2016.
Louisiana law permits possession of stun guns for self-defense without the necessity of a permit, but municipalities are free to enact their own regulations. New Orleans has made the sale and possession of stun guns illegal with a city-wide ban on such devices.
Undeterred, Ford filed a federal lawsuit in U. S. District Court in November against the city and the police superintendent, asserting that the city’s ban violates his state and federal constitutional right to bear arms. Ford is seeking an injunction against enforcement of the ban. He simply wants to keep a stun gun in his home for self-defense rather than having to resort to deadly force if ever confronted with a violent criminal attack.
In his suit, Ford states:
“(Ford) is aware of the potential legal, economic and psychological ramifications of even the justified use of deadly force to defend himself or his home against a violent criminal attack. (He) would prefer to minimize the likelihood that he would have to resort to deadly force in the event he was forced to defend himself or his home against a violent criminal attack.”
On Wednesday, December 14, the city and Ford reached an agreed stipulated order, granting him the sole right to purchase and possess a stun within the city limits of New Orleans. U.S. District Court Judge Mary Ann Vial Lemmon ordered the stipulation to be adopted. The agreement staved off for now an injunction being sought by the suit. According to court records, New Orleans city officials “may” take a look at revising somewhat the municipal code section that bans the sale and possession of the non-lethal devices.
But for 90 days at least, Ford, and only Ford, can buy a stun gun and carry it “anywhere a firearm is allowed to be carried either openly or concealed.” without the city having to admit it’s violating state or federal law with the ban.
Attorneys for Ford indicate he will push for the injunction if the city does nothing or not enough to lift the ban.
So, for the next few months, John Ford will be the only private citizen in New Orleans with the legal right to shock you – with a stun gun, that is. –by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog
If you plan to make a gift of a firearm to a family member, close friend, or relative this season, there are right ways to do that — and some very wrong ways to transfer firearms to loved ones, say Texas & U.S. Law Shield Independent Program Attorneys.
Ownership of a firearm has serious legal implications that other consumer products don’t. So let’s look at some questions you may have about giving a firearm as a gift this holiday season.
Gift Certificates Make the Process Simple
Texas Law Shield Independent Program Attorney Emily Taylor said, “The ATF recommends that if you want to give someone a new firearm, rather than going to a gun store, buying it, and giving it to someone, purchasing a gift certificate from a retailer and giving that as the present makes the process easy.”
“That way,” she said, “the recipient will get the exact gun he or she wants, and there’s no question about who is ‘the actual buyer of the firearm,’ which is a question any purchaser must certify on the Federal Form 4473 at the time of purchase.”
1: Can the Recipient Legally Own a Firearm?
If you decide to go ahead with giving a gun directly to the recipient, you must find out if the intended recipient can legally own a firearm where he or she lives.
“There are more than 20,000 different gun laws on the books, so the kinds of firearms that law-abiding citizens can own vary quite a lot,” said Taylor. Also, she reminded gun givers of a big restriction that many people overlook: Juveniles under the age of 18 generally may not possess a handgun.
Check out the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) website for more details.
2: Know the Recipient Very Well
Taylor pointed out that gift givers must not ever transfer a firearm to someone they know legally can’t own one. That’s a federal felony, so if your sketchy brother-in-law may be disqualified from owning firearms, don’t take the chance. It’s also worth pointing out that if you even have reasonable cause to believe the recipient can’t legally own a firearm, that’s enough to get the giver prosecuted under the law.
3: In-State Transfers Are Easier
There’s no federal law that prohibits a gift of a firearm to a relative or friend that lives in your home state. Abramski v. United States, a recent Supreme Court decision involving a “straw purchase” of a firearm, did not change the law regarding firearms as gifts.
According to the National Shooting Sports Foundation, there are a handful of states that currently require in-state firearm transfers to run through a local firearms retailer. This ensures an instant background check will be performed to make sure the recipient is not legally prohibited from owning the gun. This is the law in California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, and Washington State. Also, the District of Columbia Maryland and Pennsylvania require a background check for private-party transfer of a handgun.
Taylor said, “There are exceptions, so it’s important to carefully check the law of your state, ask your local firearms retailer, or call Independent Program Attorneys in these states to get clarifications on the law.”
4: Getting the Gift There
If you would like to gift a firearm to someone in another state, you may not simply ship handguns or long guns to that person. If you would like to transfer a gun to an individual in another state, this must be accomplished by using Federal Firearms License Dealers as an intermediary between the individual parties.
Carriers vary in the types of firearms they are willing to transport, and in the specific rules they impose. Taylor added, “With all carriers, federal law requires you to declare that your package contains an unloaded firearm. To be safe, always consult your carrier in advance about its regulations for shipping firearms.”
5: Family Transfers of Meaningful Firearms
During the holiday season, many families want to pass down meaningful firearms to the next generation. What if you want to give a family firearm to your son or daughter?
Of course you can, Taylor said, but she points out that some states require even inter-family transfers to go through a licensed retailer.
“It’s worth emphasizing,” Taylor said, “that you can never transfer a firearm directly to another person who is a resident of a different state. In that case, you must transfer the firearm through a licensed retailer in the state where the person receiving the gift resides.”
If you do it right, giving someone a hunting rifle, a waterfowling shotgun, a plinking handgun, or many other types of firearms can be rewarding gifts. Just keep in mind there are right ways to make the exchange, and wrong ways. It’s better to know the law and follow it closely so the gift-giving is above board and completely legal. — Texas & U.S. Law Shield Staff
Emily Taylor is an Independent Program Attorney at Walker & Byington.