When do we sue?

[macville]

So this session of our legislature has shown that hardly anyone in our legislature understands what "with a view to prevent crime" means. $750 for a lifetime carry permit that's suppose to be a right. Ignoring constitutional carry, etc. Has it come to the point where we need to start getting funds together to start suing over the unconstitutional laws that we currently have?

 

Matthew

[Garufa]

They're probably outlawing your ability to sue if they haven't done so already.

[jhc77]

http://www.tngunowners.com/forums/topic/86689-lifetime-permits/#entry1252484

[bersaguy]

Your best opportunity to sue is on election day.  That is when the elected officials are most vulnerable and we don't need lawyers.........jmho

[JayC]

If you want to sue and I think that is a great idea...  hit them where it hurts in the pocket book.

 

The 2 most likely laws to get struck down either at the state level or federally are TICS and the ammo tax.  Both of which generate millions of dollars each year for the state...

 

Under the TN state Constitution the state Legislature is only allowed to regulate the wearing of firearms...  Regulating the purchasing of firearms via a state run agency that charges residents a special tax to purchase a firearm is clearly outside the scope of the state constitution.  To get standing you'd likely need a FFL which has had to pay the tax, or an FFL that can show they lost business or spent extra resources on state paperwork.  

 

The same tact *might* work on the federal level with this one, since NICS does a good enough job for most states, and is free to all FFL's and buyers, TN would have to show while they need a extra step in the process, and the extra cost...  Since the false positive rate on TICS is more than twice as high as NICS they'd have a very hard time defending TICS.

 

Also, the special ammo tax is likely also unconstitutional at both the state and federal level...  getting standing here is easier, since it directly impacts anybody who has purchased ammo...  since ownership of ammo is a right under the 2nd Amendment, then the state would have a high burden to prove why it charges a special tax for it over and above the normal state sales tax.  On the federal level there are likely a number of cases having to do with the 1st Amendment that would toss a monkey wrench on this one, such as Leathers vs Medlock 1991 and Arkansas Writers Project vs Ragland 1987 to name two.

 

Going after the money is the way to go...  another idea that would work...  do a public records request for every expense at TDOS involving the HCP department... and then filing suit to block any expenses not authorized under state law.  TDOS is prohibited from spending HCP funds on anything not directly related to HCP permit applications...  my bet is there are a bunch of salaries in there and other expenses in their budget that could be legally challenged in court.

 

Also, TICS is likely violating state law having to do with records storage of firearm purchases... 

 

These last 2 would be more headache suits... maybe you just do public records requests and start publishing the information to shame them and give them a black eye...  but I'd also target every legislator who voted against a firearm bill...  go in and pull all their public records and publish anything that might cause them problems...  pull email public records between TDOS and any state legislators office for the last 4 years and publish every one of them online for everybody to see.

 

Might not hurt if somebody like the TFA were armed with such information in meetings with legislators.

 

We can do a lot to make noise...  unlike most southern states where their firearms groups don't take no for an answer, we seem to.  

[hkusp40cal]

There is one issue with NICS and I found this out when I lived in NH.  In NH all pistol approvals went to the state police.  I would go in, get approved and walk out with the pistol.  All long guns were done NICS, I would walk in, get a hold on the rifle and have to come back in a day or two for the rifle.  The reason is (or at least was back in 2000) that if NICS is run and your finger prints show up in a federal database, there is not instant approval.  As I held a TS clearance when I was in the military and worked for a few 3 letter agencies, my finger prints are all over the databases.  When I asked about it that was the explanation I was given for the delay on the NICS.

[Oh Shoot]

There is one issue with NICS and I found this out when I lived in NH.  In NH all pistol approvals went to the state police.  I would go in, get approved and walk out with the pistol.  All long guns were done NICS, I would walk in, get a hold on the rifle and have to come back in a day or two for the rifle.  The reason is (or at least was back in 2000) that if NICS is run and your finger prints show up in a federal database, there is not instant approval.  As I held a TS clearance when I was in the military and worked for a few 3 letter agencies, my finger prints are all over the databases.  When I asked about it that was the explanation I was given for the delay on the NICS.

 

All firearms since 11/30/1998 purchased from FFLs are run through NICS in all states, and also fingerprints have never been required for 4473. Some states require them (TN used to). But not passed along to the feds for the NICS background check.

 

So the explanation you were given just doesn't hold water, had to have something to do with just NH I reckon.

 

- OS

Edited March 21, 2015 by Oh Shoot

[macville]

The 2 most likely laws to get struck down either at the state level or federally are TICS and the ammo tax.  Both of which generate millions of dollars each year for the state...

 

Under the TN state Constitution the state Legislature is only allowed to regulate the wearing of firearms...  Regulating the purchasing of firearms via a state run agency that charges residents a special tax to purchase a firearm is clearly outside the scope of the state constitution.  To get standing you'd likely need a FFL which has had to pay the tax, or an FFL that can show they lost business or spent extra resources on state paperwork.  

 

The same tact *might* work on the federal level with this one, since NICS does a good enough job for most states, and is free to all FFL's and buyers, TN would have to show while they need a extra step in the process, and the extra cost...  Since the false positive rate on TICS is more than twice as high as NICS they'd have a very hard time defending TICS.

 

Also, the special ammo tax is likely also unconstitutional at both the state and federal level...  getting standing here is easier, since it directly impacts anybody who has purchased ammo...  since ownership of ammo is a right under the 2nd Amendment, then the state would have a high burden to prove why it charges a special tax for it over and above the normal state sales tax.  On the federal level there are likely a number of cases having to do with the 1st Amendment that would toss a monkey wrench on this one, such as Leathers vs Medlock 1991 and Arkansas Writers Project vs Ragland 1987 to name two.

 

Why would everyone who's paid the $10 for a TN background check not have standing? My argument would be that it's no different than a poll tax, which was found unconstitutional in 1966. I would almost say that the $10 fee would be an easier case to sue over than the ammo tax, but that's because there's probably more legal precedent. Although.  I believe that "precedent" is one of the reasons our legal systems is in shambles. The courts are more concerned about precedent than what the Constitution, laws, and original intent actually say.

 

And while it would be good to eliminate the $10, I am aiming more at the "with a view to prevent crime" part of the Constitution. I think laws against school carry, parks, 1359 posting law, etc. are ripe to be picked apart now with around 20 years of permit holders being 99.99999% lawful that obviously restrictions on them would not fall under a "view to prevent crime." Secure areas of jails or prisons are the only place that make any sense to be off limits.

 

Matthew

[JayC]

You and I as buyers might or might not have standing, often the TICS fee you and I are charged is a pass-thru fee from the FFL, but at the end of the day the FFL is the one who writes a check to TDOS, not you or I...  

 

I'm not a lawyer, so my understanding is the state would attempt to use the fact we don't pay the fee directly to the state, to say we don't have standing to object to the fee in the first place.  Even though logic would dictate the fee clearly impacts the end buyer.  Again, an attorney here might well be able to better explain the theory behind standing and if they think an end buyer would have standing to challenge TICS or if it would require an FFL to challenge it.

 

Ammo tax probably doesn't require an FFL to have standing since it's a special tax stamp included in the purchase...  but again IANAL.

 

I agree with current law is poorly written and doesn't meet the basic understanding of 'preventing crime' as written in our State Constitution, but I think challenging those provisions of the law would be a lot harder to do...

 

IMHO it's easier to focus on laws which clearly don't regulate the wearing of arms, which no sane person can say that TICS, and the ammo tax are, and therefore are outside the scope of the power invested in the legislature by the state constitution.  You'd also be able to tackle the Federal Constitutional arguments in the same case, which in theory would allow you to appeal to the federal courts...

 

Challenging these laws even if we don't win, would put pressure on the legislature to make changes...  if a TN or Federal court rules something is legal it will tend to upset a lot of people...  even more so when they realize they pay these special hidden taxes and people in other states don't...  Even if the legislators don't fix TICS or the ammo tax, they might feel pressure to allow more pro firearm bills to pass in the legislature so they don't appear soft on pro-2nd amendment support.

 

Why would everyone who's paid the $10 for a TN background check not have standing? My argument would be that it's no different than a poll tax, which was found unconstitutional in 1966. I would almost say that the $10 fee would be an easier case to sue over than the ammo tax, but that's because there's probably more legal precedent. Although.  I believe that "precedent" is one of the reasons our legal systems is in shambles. The courts are more concerned about precedent than what the Constitution, laws, and original intent actually say.

 

And while it would be good to eliminate the $10, I am aiming more at the "with a view to prevent crime" part of the Constitution. I think laws against school carry, parks, 1359 posting law, etc. are ripe to be picked apart now with around 20 years of permit holders being 99.99999% lawful that obviously restrictions on them would not fall under a "view to prevent crime." Secure areas of jails or prisons are the only place that make any sense to be off limits.

 

Matthew