Shooting Straight on Firearms Law
While the politics and the social impact of guns frequently make headlines, the practice of firearms law rarely receives the same level of attention. For those concerned about the preservation of the Second Amendment and the safe and legal use of guns, however, the merry band of firearms attorneys who toil in relative anonymity see their impact far outweigh their numbers.
As a lifelong hunter and shooting sports enthusiast the seeds of my practice were planted in law school. The Second Amendment received nary a mention in most constitutional law classes in the mid 90’s. The predominant legal theory at the time being that the Second Amendment was a collective, not an individual right, a vestigial tail of our agrarian past.
Fortunately for the Constitution and the People the Supreme Court clarified this ambiguity holding that the Second Amendment is an individual right just as are the other liberties guaranteed in the Bill of Rights. There was also some debate about the Clinton assault weapons ban, but other than that most students seemed not to give it much thought.
Upon graduation from law school, I began to research how I could turn my passion for the Second Amendment and interest in firearms into a profitable and rewarding legal practice. With a little research I discovered a network of attorneys throughout the country who shared my interest in firearms and the law. I was excited to learn that the area of firearms law existed beyond the scholarly world of law review articles and constitutional law seminars.
I knew that laws regarding firearms were an ancillary part of many practices but my challenge was to make it my primary focus. Fortunately, Florida leads the nation in the recognition and expansion of firearms law protections and laws that allow citizens to enforce those rights in court. Beyond the obvious area of criminal law, firearms law also touches numerous other practice disciplines, such as, property rights, employment, family law, import-export, zoning, intellectual property, civil rights, forfeiture, administrative, regulatory, mental health and wills and trusts, just to name a few.
The types of cases born of these areas are diverse, from restoration of gun rights at the administrative level to state and federal court cases defending law-abiding citizens exercising their right to keep and bear arms to federal firearms licensees being sued by anti-gun groups as a back-door strategy for gun control.
Given the passion and potential for controversy regarding guns, I also see government officials and law enforcement officers who illegally, or at the very least incorrectly, confiscate guns then refuse to return them to their rightful owners without a court order. In most instances, legally speaking, a court order is not required; however, because too many elected officials are afraid of any controversy, they try to punt the issue to the courts.
This necessitates the gun owner incurring legal expenses that in most instances outweigh the value of the property. The law enforcement officials know that most individuals will just forfeit the weapon. The agency can then add these illegally forfeited guns to their crime statistics proving that they are “getting guns off the streets.”
Another common case relates to Florida’s preemption law. This law gives real teeth to individuals looking to challenge local governments or law enforcement agencies that are hostile to gun owners. The law provides that the State has occupied the field in all matters related to guns, therefore, local governments, municipalities and government agencies, such as Sheriff’s Offices, cannot have their own laws, rules or policies contrary to the State’s.
One of the pitfalls for many lawyers not familiar with firearms law is the interplay between state and federal laws. Because most practitioners do not have an emphasis on firearms, I counsel many people who have received bad legal advice thus unnecessarily forfeiting their right to firearms ownership or exposing themselves to severe criminal penalties. I recently had a long practicing criminal defense attorney tell me he was shocked to learn that the advice he was giving clients, although valid under Florida law, was not under the federal court’s interpretation of Florida law thus exposing his clients to prosecution as felons in possession.
Many within the firearms community believed that when the Supreme Court decided the Heller and McDonald cases that the debate over guns and the Second Amendment was over. Unfortunately, it was only the beginning with the scope of the practice only increasing since those decisions were rendered by the Court. Correctly, the government is now focusing on the problem of mental health and firearms.
In almost every mass shooting we find that the criminal was known to have mental health issues prior to the tragedy. The Federal government will now supply funding to the states to put more mental health records into NICS (National Instant Criminal Background Check System). With increased records however comes more mistakes with people who should not have their rights taken away from them. The problem is a significant one for our veterans, many of whom will not seek necessary treatment from the Veterans Administration for fear of losing their gun rights. It is up to us, the firearms law practitioners, to help strike the right balance between protecting society and individual liberties.
Firearms law is a niche practice, but with the ever increasing specialization of the law, one that is truly needed. In addition to assisting individual clients, I also consult with other attorneys on firearms specific issues relating to cases where firearms are not the primary issue as well as consult with firearms related businesses to stay in compliance with federal regulations. You do not have to be a firearms enthusiast to recognize that firearms and the law related to them are part of the fabric of society and that we can make the use and ownership of firearms safer by providing good information to law abiding citizens.