From best-rkba@mainstream.com Wed Nov 9 18:32:31 1994 Received: from nova (nova.unix.portal.com [156.151.1.101]) by jobe.shell.portal.com (8.6.9/8.6.5) with ESMTP id SAA08678; Wed, 9 Nov 1994 18:32:30 -0800 Received: from n8ino.mainstream.com (n8ino.mainstream.com [192.231.143.2]) by nova (8.6.9/8.6.5) with ESMTP id SAA07082; Wed, 9 Nov 1994 18:32:23 -0800 Received: from (localhost [127.0.0.1]) by n8ino.mainstream.com (8.6.5/8.6.5) with SMTP id VAA09137; Wed, 9 Nov 1994 21:05:25 -0500 Date: Wed, 9 Nov 1994 21:05:25 -0500 Message-Id: <199411100205.VAA09137@n8ino.mainstream.com> Errors-To: listproc@Mainstream.com Reply-To: best-rkba@Mainstream.com Originator: best-rkba@mainstream.com Sender: best-rkba@Mainstream.com Precedence: bulk From: best-rkba@Mainstream.com To: Multiple recipients of list Subject: BEST-RKBA digest 144 X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas X-Comment: Right to Keep and Bear Arms "Best of" list Status: R BEST-RKBA Digest 144 Topics covered in this issue include: 1) Filing for lawsuit against AW ban by Craig Peterson ---------------------------------------------------------------------- Topic No. 1 Date: Wed, 9 Nov 1994 19:59:45 -0500 From: Craig Peterson To: best-rkba@mainstream.com Subject: Filing for lawsuit against AW ban Message-ID: <199411100059.TAA02149@n1mep.mainstream.com> From: US4RMC::"Loboazul@AOL.COM" "MAIL-11 Daemon" 9-NOV-1994 03:31:02.23 To: roc@xmission.com Subj: Forwarded Following is the text of Steven Kropelnicki, Jr. v. U.S., Case No. 1:94cv186, filed September 30, 1994 in the United States District Court, Western District of North Carolina, Asheville Division by attorney Steven Kropelnicki: 1. Plaintiff is a citizen and resident of the United States and of the State of North Carolina. He is an able-bodied adult male and a citizen and resident of the State of North Carolina. 2. This is an action over which the district court has jurisdiction under Title 28, United States Code Sections 1331 and 1346. THE ACT 3. Congress has enacted and the President has signed into law a bill known as the Omnibus Crime Control Bill of 1994 which contains a subtitle, "The Public Safety and Recreational Firearms Use Protection Act" (hereinafter referred to as "the Act"). This Act provides, inter alia, that it is unlawful for any person to manufacture, transfer, or possess a "semi-automatic assault weapon", with the proviso that the aforementioned prohibition shall not apply to the possession or transfer of any "semi- automatic assault weapon" otherwise lawfully possessed on the date of the enactment of the subsection. 4. The Act also prohibits transfer or possession of large capacity ammunition feeding devices, except for those lawfully possessed on or before the date of enactment of the subsection. 5. The Act defines the term "semi-automatic assault weapon" to include a list of specific firearms, including the Colt AR-15, and in addition any other semi-automatic firearms possessing certain operational and cosmetic characteristics. 6. The Act defines large capacity ammunition feeding devices, generally, as detachable magazines that have a capacity of or can readily be converted to accept more than 10 rounds of ammunition. 7. The Act imposes criminal penalties for violation of the aforementioned provisions. 8. The Act specifically excludes from its provisions certain semi-automatic firearms, e.g., the Ruger Mini-14 rifle. BACKGROUND 9. Plaintiff is a member of the militia of the State of North Carolina as provided in North Carolina General Statutes Chapter 127A. 10. Neither the government of the United States nor the government of the State of North Carolina has made any provision for arming and equipping the militia of the State of North Carolina. 11. Plaintiff desires to acquire by lawful means certain semi-automatic firearms which by virtue of their design, function, and capability are suitable arms for service in the militia. Those arms included but are not limited to a rifle known as a Colt AR-15, manufactured in the United States, as well as magazine feeding devices and other accessories for these firearms. Plaintiff intends to acquire these firearms for all of the following purposes: a. To prepare himself for service as a member of the militia, which service is an obligation of citizenship, as evidenced by the aforementioned North Carolina law; b. The lawful defense of himself, his family, and his home, against unlawful acts of criminals and, potentially, of his government; c. For lawful sporting purposes, including participation in civilian marksmanship programs authorized by federal law. 12. Plaintiff owns certain components lawfully acquired prior to the effective date of the Act, from which he desires to assemble an AR-15 rifle. 13. The firearms and magazines subject to the provisions of the Act are, with certain exceptions, semi-automatic derivatives of selective fire weapons designed for and in common use by the military forces of the United States and the various other nations. For example, the AR-15 is a semi-automatic version of the M-16 firearm used by the military forces of the United States and its NATO allies. It uses the same ammunition and ammunition feeding devices as the M-16, parts and components are interchangeable between the two firearms, it operates on principles identical to those of the M-16, and has identical performance characteristics, except for the selective fire feature. The AR-15, and all other semi-automatic weapons, fire one round and automatically reload with each operation of the trigger, whereas selective fire weapons are capable of firing more that one round with each operation of the trigger. 14. Possession of selective fire weapons by citizens of the United States is, for all practical purposes, unlawful by virtue of other provisions of federal law. 15. By virtue of the fact that the Colt AR-15 and the weapons encompassed by the Act have been designed and manufactured to meet military specifications, except for the selective fire feature, these firearms have all of the following characteristics: a. They use ammunition which has been manufactured in large quantities for various military forces, and is readily available and relatively inexpensive; b. These firearms tend to be extremely reliable, design defects and weaknesses having been identified and corrected in the course of their military service; c. Replacement parts are readily available and relatively inexpensive, often as military surplus; d. These weapons are designed so that maintenance and replacement of parts subject to wear in normal use [is] simple, requiring tools which are readily available and inexpensive, and procedures involving no high degree of technical skill, all the results of their design for use by military forces under adverse conditions. 16. By reason of all of the foregoing, a number of the firearms covered by the Act are those having a direct relationship to the preservation of an armed citizenry, capable of being called into service in a militia, and able to protect themselves, their families, and their property against the unlawful usurpation of power by government and against the unlawful acts of criminals. THE RIGHT TO KEEP AND BEAR ARMS 17. The authority of the government of the United States is limited to those powers expressly delegated to that government by the citizens of the United States, as set out in the Constitution of the United States. 18. The right of this plaintiff, and any other citizen of a free state to keep and bear arms for lawful purposes, specifically for the purpose of maintaining effective means to resist unlawful usurpation of power by his own government, is God-given, inalienable, and is an indispensable element of the sovereignty vested in the people of these United States prior to the enactment of any constitution or the establishment of any national government. 19. No provision of the Constitution of the United States and no act of the people of these United States confers upon the government of the United States any authority to infringe upon the inalienable rights of this plaintiff and other American citizens to keep and bear arms for lawful purposes. 20. This plaintiff, and other American citizens similarly situated have, then, a right to keep and bear arms, which right does not derive from any government, but which, on the contrary, is an element of the sovereignty of the people of these United States. 21. The right of the people to keep and bear arms is expressly acknowledged by the provisions of the Second Amendment to the Constitution of the United States, but the right does not derive from that Amendment nor is it limited by any limitations which might be read into that Amendment. 22. To the extent that the language of the Second Amendment may be read so as not to encompass the rights of this plaintiff, as set forth above, then those rights are among the rights retained by the people, as acknowledged by the Ninth and Tenth Amendments to that Constitution. UNCONSTITUTIONALITY OF THE ACT 23. To the extent that the Act prohibits plaintiff and other citizens of the United States from possessing, manufacturing, or transferring certain semi-automatic firearms and ammunition feeding devices, it is patently unconstitutional, in that the government of the United States has no jurisdiction nor authority to enact such provisions and those provisions infringe upon inalienable and inherent rights of plaintiff and of other citizens of the United States, which rights are expressly reserved to the people by virtue of the provisions of the Second, Ninth and Tenth Amendment to the Constitution of the United States. 24. Assuming, arguendo, that the powers delegated to government of the United States include the power to enact reasonable regulations governing the time, place, and manner of the exercise of the rights in question, the provisions of the Act exceed in any legitimate exercise of that police power authority, in that they are overly broad and constitute a prior restraint upon the exercise of constitutionally protected rights. 25. The Act infringes upon fundamental and constitutionally protected rights of plaintiff and other citizens of the United States arbitrarily and capriciously, in as much as it specifically excludes from its provisions certain semi-automatic firearms without a rational basis which bears any relationship to any legitimate exercise of the police power. REQUESTED RELIEF 26. There exists an actual controversy concerning the constitutionality of the Act, which controversy is within the jurisdiction conferred on this court by the provisions of 28 U.S. Code Section 2201, the Declaratory Judgment Act. 27. Plaintiff is entitled to a declaration that the Act is unconstitutional and void, and to a permanent injunction against attempts by the defendant or any of its agents to enforce the Act. 28. Plaintiff will suffer grave and irreparable harm, for which he has no adequate remedy at law, if the defendant be permitted to attempt to enforce the provisions of the Act during the pendency of this proceeding, and plaintiff is entitled to preliminary injunctive relief prohibiting the defendant and its agents from enforcing or attempting to enforce the provisions of this Act, pendente lite. WHEREFORE PLAINTIFF RESPECTFULLY PRAYS THE COURT FOR RELIEF AS FOLLOWS: 1. That it enter a declaratory judgment that the Act is unconstitutional, in that it is beyond any powers delegated to the government of the United States, it violates fundamental and inalienable rights of the plaintiff and of other citizens of the United States in violation of the Second, Ninth and Tenth Amendments to that Constitution, in that it is over broad, arbitrary, and irrational. 2. For preliminary and permanent injunctions against enforcement of the Act against plaintiff or any other citizen of the United States. 3. That he be awarded costs, including reasonable attorney's fees. 4. For such other and further relief as may appear to the court to be just proper. This 30th day of September, 1994 _______________________ Steven Kropelnicki, Jr. Plaintiff CARTER & KROPELNICKI, P.A. 14 South Pack Square, Suite 340 Asheville, North Carolina 28801 (704) 252-9804 ------------------------------ End of BEST-RKBA Digest 144 ***************************