FPC and FPCAF File Brief in Support of Lawsuit Challenging NYC Long Gun License Requirements

NEW YORK (March 21, 2024) – Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced the filing of an important brief with the Second Circuit Court of Appeals in support of Plaintiff-Appellee Joseph Srour in Srour v. New York City, which challenges New York City’s shotgun and rifle licensing requirements. The brief can be viewed at FPCLegal.org.

“There is no historical tradition of requiring a license to possess a firearm,” argues the brief. “The only historical laws requiring a license to possess a firearm applied to persons without recognized rights at the time, namely African Americans and American Indians. These repugnant laws cannot form the historical tradition necessary for the government to satisfy its burden for several reasons.”

“New York City continues the existing trend of authoritarian governments relying on blatantly racist and discriminatory laws in an attempt to justify their modern gun control efforts,” said Cody J. Wisniewski, FPC Action Foundation’s Vice President and General Counsel, and counsel for FPC. “In reality, there is no historical basis for New York City’s modern requirement that individuals acquire a license merely to possess firearms. As such, its law is blatantly unconstitutional.”

 

Ninth Circuit Denies Rehearing En Banc of Panel Decision Holding Gun Ads Restriction Is Likely Unconstitutional

The order came down today; it noted that no judge called for a vote on the en banc rehearing petition. Here’s my post on the panel decision, from September.

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California Restriction on Gun Ads That “Reasonably Appear[] to Be Attractive to Minors” Likely Unconstitutional

From Junior Sports Magazines, Inc. v. Bonta, decided today [Sept, 13, 2023] by Ninth Circuit Judge Kenneth Lee, joined by Judges Randy Smith and Lawrence VanDyke:

This case is not about whether children can buy firearms. (They cannot under California law.) Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)

Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad “reasonably appears to be attractive to minors.” So, for example, an ad showcasing a safer hunting rifle with less recoil for minors would likely be unlawful in California. Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it “materially” and “directly” advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar.

While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not “directly” and “materially” further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms.

There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment “significantly” decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.

California’s law is also more extensive than necessary, as it sweeps in truthful ads about lawful use of firearms for adults and minors alike. For instance, an advertisement directed at adults featuring a camouflage skin on a firearm might be illegal because minors may be attracted to it….

Judge VanDyke concurred, adding:

California wants to legislate views about firearms. The record for recently enacted California Assembly Bill 2751 (AB 2751) indicates a legislative concern that marketing firearms to minors would “seek[] to attract future legal gun owners,” and that that’s a negative thing. No doubt at least some of California’s citizens share that view. They may dream that someday everyone will be repulsed by the thought of using a firearm for lawful purposes such as hunting and recreation. But just as surely some of California’s citizens disagree with that view.

Many hope their sons and daughters will learn to responsibly use firearms for lawful purposes. Firearms are controversial products, and don’t cease to be so when used by minors. But as the majority opinion explains well, there are a variety of ways a minor can lawfully use firearms in California. And the State of California may not attempt to reduce the demand for lawful conduct by suppressing speech favoring that conduct while permitting speech in opposition. That is textbook viewpoint discrimination.

That is precisely what California did in Assembly Bill 2751. Under this law, those who want to discourage minors from lawfully using firearms (such as for hunting or shooting competitions) are free to communicate their messages. Certain speakers (“firearm industry members”) who want to promote the sale of firearms to minors, however, are silenced.

I agree with the majority opinion that, even assuming intermediate scrutiny applies, California’s nascent speech code cannot withstand it. I write separately to emphasize that laws like AB 2751, which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny. Our circuit’s precedent is ambiguous about whether viewpoint- discriminatory laws that regulate commercial speech are subject to strict scrutiny. In the appropriate case, we should make clear they are…

Anna M. Barvir (Michel & Associates PC) argued for plaintiffs; Chuck Michel (Michel & Associates) and Donald Kilmer also represent plaintiffs. Thanks to Don Kilmer for the pointer on the denial of en banc rehearing.

Supreme Court Refuses to Block Texas From Arresting Illegal Immigrants.

The Supreme Court has acted. Texas is free to deal with illegal migrants in violation of immigration law by arresting them.

The Biden administration failed in its attempt to block a Texas law that allows the state to arrest those suspected of violating U.S. Immigration law. The Biden administration argued that the federal government may enforce or ignore immigration law as it sees fit. It said states like Texas have no say in the matter and no recourse to defend themselves.

The court majority said no to this overreaching, and some justices were not happy.

Liberal Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, wrote, “Today, the Court invites further chaos and crisis in immigration enforcement.” The court may still reopen the issue as a constitutional matter later, but for now, the Biden administration may not interfere with Texas.

Biden had wanted an administrative stay to halt any action by Texas as a way of shortcutting the process of appeals.

The Texas migration law makes unauthorized entry into the state, except at a port of entry, a state felony. While such entry is already a federal crime, the Biden administration has turned a blind eye to the law. Texas now has a free hand to defend its state borders.

A federal judge attempted to stay the law’s implementation, but the 5th Circuit overturned that ruling. The Biden administration hoped the Supreme Court would overrule the 5th Circuit. It did not.

The state argued, “Plaintiffs urge the Court to rush straight to the merits of their claims. But these cases do not belong in federal court at all—even apart from the fact that no state court has yet had an opportunity to construe any provision of S.B.4.”

The Supreme Court majority agreed.

“So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay,” wrote Justices Amy Coney Barrett and Brett Kavanaugh in ruling against the federal government. “I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal. I think it unwise to invite emergency litigation in this Court about whether a court of appeals abused its discretion at this preliminary step.”

Further legal action is expected, but in the meantime, the state of Texas has been given the green light to proceed with enforcing its border.

BLUF:
After consideration of the arguments, the Utah Supreme Court agreed with the district court that Clara “presented evidence showing a reasonable belief that the snowplow posed an imminent threat of death or serious bodily injury to him and his passenger.”

Utah Supreme Court upholds prior ruling in first challenge of 2021 self-defense law

SALT LAKE CITY – The Utah Supreme Court sided with a man who fought felony firearm charges by claiming self-defense under a law that went into effect in 2021.

The case in question stems from a shooting in 2019. Jon Michael Clara fired several shots toward a truck with a snowplow that had repeatedly rammed into the SUV he was driving. One of the bullets flew through the cab of a nearby uninvolved vehicle, narrowly missing a child.

A blue truck with a snowplow rammed into an SUV multiple times, spinning it around to face oncoming traffic on Nov. 23, 2019.

Several charges against Clara were dismissed after he made use of a new self-defense law he urged lawmakers to pass. However, in an unusual move, the judge who presided over the case urged prosecutors to appeal his decision. In an opinion released Friday, Utah’s Supreme Court justices concluded that the district court “did not err” in its handling of Clara’s case.

Utah’s self-defense law

HB227 sailed through the Utah legislature in 2021. The law allows people who are charged with a crime and claim self-defense to have a justification hearing before the case goes to trial. If prosecutors cannot disprove a self-defense claim with clear and convincing evidence in that early hearing, the case is permanently dismissed.

That is what happened in Clara’s case in March 2022. Third District Judge Todd Shaughnessy ruled the state had not met its burden of proof, and despite evidence he said “troubles” him, he dismissed the case.

“This is one instance in which the state can appeal,” Shaughnessy said. “I would encourage the state to do that to seek some clarity on exactly what this new law means. But, as I say, I believe my hands are tied.”

The case is one of several the KSL Investigators followed after first reporting on the unintended consequences of the new law.

Utah Supreme Court arguments

During arguments before the Utah Supreme Court in May 2023, Assistant Attorney General Andrew Peterson argued Clara was not acting in self-defense, while defense attorney Ann Taliaferro argued Clara had acted reasonably given the circumstances.

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Supreme Court Seems Sympathetic to NRA’s Claims Against New York Debanking Pressure Case
The oral hearings suggest an overall degree of favorability towards the NRA’s allegations of First Amendment violations.

The case, NRA v. Vullo, brought by the National Rifle Association (NRA) against a New York official and alleging freedom of speech violations, has reached the Supreme Court of the US (SCOTUS) and, overall, the justices appeared overall sympathetic toward NRA’s claims.

The respondent to the NRA’s petition to allow the lawsuit to proceed, former New York State Department of Financial Services (DFS) Superintendent Maria Vullo, is accused of influencing banks and insurance firms to drop the NRA.

The case concerns two actions taken by Vullo – first seven years ago when DFS started investigating insurance programs in cases of gun injuries tied to NRA. The following year, this resulted in three insurers stopping programs covering such claims in New York, and paying $7 million in fines.

And then, after the Parkland, Florida school shooting in 2018, the official decided it was a good idea to publish a “guidance” letter to banks and insurers (thousands of them), warning how their “reputation” might suffer if they worked with a pro-gun organization. Vullo found success here as well, as a number of insurance companies and banks heeded the warning.

But the NRA’s federal lawsuit that followed accused Vullo of violating NRA’s First Amendment rights. A court first allowed the lawsuit to proceed, but then the court of appeals overturned this ruling. And it is now up to SCOTUS to decide.

The American Civil Liberties Union (ACLU) is representing the NRA, explaining its involvement as necessary to prevent the government from going after other groups in a similar way – even though the ACLU’s own ideological slant and that of the NRA are clearly on the opposite ends of the spectrum in the US.

The ACLU’s David Cole told the justices on Monday that SCOTUS should adhere to the Bantam Books v. Sullivan decision in this case, adding that “informal, indirect government efforts to suppress or penalize speech by threatening private intermediaries violate the First Amendment.”

In Bantam Books v. Sullivan (1963), the Supreme Court ruled that the Rhode Island Commission to Encourage Morality in Youth’s practice of notifying distributors about certain books deemed objectionable for minors under 18 amounted to unconstitutional state censorship. This informal censorship violated the First Amendment as it lacked procedural safeguards, leading to the suppression of book distribution without formal legal action. The Court emphasized that while states have the authority to regulate obscene material, they must ensure that such regulation does not infringe on constitutionally protected speech, thus requiring a balance between protecting minors and upholding free speech rights​.

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Law Enforcement Trainers File Scotus Amicus Brief against Maryland Rifle Ban: Citizens should be able to choose the same high-quality defensive arms that peace officers choose.

Last week the International Law Enforcement Educators & Trainers Association filed an amicus brief in a U.S. Supreme Court case challenging Maryland’s ban on many common semiautomatic rifles. The case is Bianchi v. Brown, and it has an unusual procedural posture; it is a petition for certiorari before judgement. Yet the case is one on which the U.S. Supreme Court has already ruled.

This post will first summarize the amicus brief, and then provide the procedural background, which is detailed in the Bianchi plaintiffs’ cert. petition.

The facts about the banned rifles

As detailed in the amicus brief, the semiautomatic rifles banned by the Maryland General Assembly fire only one shot each time the trigger is pressed. This is the same rate of fire as the most common semiautomatic handguns, such as those made by Glock, Smith & Wesson, or Ruger.

The claim by gun prohibition advocates that such guns fire 300 to 500 times per minute has no basis in fact, and is contrary to common sense. It would take a superhuman trigger finger pull a trigger at the rate of 5 to 8 times per second, let alone do so for a full minute.

Nor are the banned rifles, including those based on the AR-15 platform, more powerful than nonbanned rifles. To the contrary, their standard ammunition is .223 inch or 5.56mm bullets that are small compared to most other rifle ammunition. Accordingly, their kinetic energy is lower.

Because the banned rifles are more powerful than handguns, but less powerful than most other rifles, the relatively low wounding power of this ammunition has been confirmed by decades of study by the US Army’s Ballistic Research Laboratory.

Moreover, as documented in police training manuals, the banned rifles are the safest for defensive use within buildings, because their ammunition is especially unlikely to penetrate a wall.

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Another ‘She said what!?’. The Justice that can’t tell you what a woman is, thinks that the goobermint should have the power to restrict the freedom of the press to protect the populace.

Just to refresh your memories. Here’s the preamble to the Bill of Rights with my emphasis of really important parts.

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.


If so, we can only hope the Court takes these cases and crams their rulings in Heller, Caetano, McDonald and Bruen down the lower court’s and state’s throats


Groundswell of Second Amendment Cases Seems Destined for the Supreme Court
Federal courts in blue states seem to be upholding the majority of gun control laws, even after landmark Supreme Court decisions upholding the fundamental right to keep and bear arms

We recently posted about the New York Second Amendment case challenging New York’s concealed carry permit law that requires that a permit applicant prove to a local official that he or she is of “good moral character.” Not only is this an absurd requirement (how exactly are you supposed to prove that you have “good moral character”), but even after doing so, said local official then has complete discretion on whether to approve the applicant’s permit request . . . or not. The challengers in the case just asked the U.S. Supreme Court to review the case after the Second Circuit approved the “good moral character” requirement:

From our report: Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS:

The key part of the Petition [asking the U.S. Supreme Court to review the case] is its discussion of the New York law’s requirement that New Yorkers prove that they have “good moral character” before obtaining a concealed carry permit:

[T]his case would allow this Court the opportunity to clarify that government may not selectively disarm law-abiding members of “the people” whenever licensing officials feel they are of poor character, potentially dangerous, or otherwise unworthy of enjoying the natural right to self-defense with which they were endowed by their Creator….

In Bruen, this Court rejected New York’s requirement that, to be authorized to bear arms in public, citizens first must demonstrate “proper cause” — defined as “a special need for self-protection.” Here, the panel sanctioned New York’s stand-in requirement that citizens convince licensing officials of their “good moral character” prior to licensure. As the district court explained, New York simply “replaced” proper cause with good moral character, “while retaining (and even expanding) the open-ended discretion afforded to its licensing officers….”

New York’s “good moral character” standard is…a prohibited “suitability” determination and, as the district court noted, is merely a surrogate for the “proper cause” standard that was struck down in Bruen…Indeed, under the CCIA, New York officials decide whether a person “ha[s] the essential character, temperament and judgement necessary to be entrusted with a weapon….”

It is quite difficult to understand Bruen’s criticism of “suitability” not to include “good moral character.” And it is even more difficult to believe that this Court would approve the discretionary power to deny carry licenses to “all Americans” unless they first “convince a ‘licensing officer’” of their general morality.

In doing some research to see if other cases exist that are working their way through the courts, I was surprised to find out that there are — a lot of them.

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NSSF PRAISES INDIANA GOVERNOR SIGNING LAW TO END CITY OF GARY LAWSUIT

WASHINGTON, D.C. — NSSF®, The Firearm Industry Trade Association, praises Indiana Gov. Eric Holcomb’s signing of House Bill 1235, legislation that “provides that only the state of Indiana may bring or maintain an action by or on behalf of a political subdivision against a firearm or ammunition manufacturer, trade association, seller, or dealer concerning certain matters.” The bill “prohibits a political subdivision from otherwise independently bringing or maintaining such an action.”

The industry members the City of Gary sued are expected to promptly file a motion to dismiss the case based on this new law that became effective immediately upon the Governor’s signature. Lawyers representing the city acknowledged in their testimony opposing the bill that if it were to be enacted it would mean the City of Gary’s lawsuit will be dismissed. The City of Gary’s nearly quarter-century old frivolous lawsuit against firearm manufacturers seeks to hold them responsible for the criminal actions of unrelated and remote third parties.

“This is a tremendous victory for common sense. The City of Gary never had a serious claim. Instead, it was committed to a losing strategy of lawfare to abuse the courts in order to force through gun control policy outside of legislative channels,” said Lawrence G. Keane, NSSF Senior Vice President & General Counsel. “NSSF is grateful for Indiana Rep. Chris Jeter for his leadership when he introduced this legislation, the Indiana legislature including Sen. Aaron Freeman for its commitment to the law and Governor Holcomb for his faithfulness to the principles of ensuring politically-motivated lawsuits don’t clog our courts and allow special-interests to circumvent the legislative authority reserved by the State of Indiana.”

The City of Gary, Ind., first filed their claims in 1999, as part of a coordinated effort by 40 big city mayors who conspired together through the U.S. Conference of Mayors with gun control activist from Brady United (formerly known as the Brady Center), lawyers and trial lawyers.

All these municipal lawsuits have either been dismissed by the courts, e.g., Atlanta, Chicago, New York, Los Angeles, San Fransico, Detroit and St. Louis, or simply dropped by several cities, e.g., Boston, Cincinnati and Camden. Many of these municipal lawsuits were dismissed based on state preemption laws enacted between the 1999 to 2001 time period upon which H.B. 1235 is modeled. Like H.B. 1235, these laws – that have been upheld by the courts – reserve to the state the exclusive authority to sue members of the industry except that they allow for breach of warranty and related claims for firearms a political subdivision purchased. 

Additionally, Congress passed in a broad bipartisan fashion, and President George W. Bush signed into law, the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005. The PLCAA blocks lawsuits that attempt to hold firearm and ammunition industry companies liable for the criminal actions of third parties who misuse the industry’s lawful non-defective products. More specifically, this common-sense law ensures that responsible and law-abiding federally licensed manufacturers and retailers of firearms and ammunition are not unjustly blamed in federal and state civil actions for “the harm caused by those who criminally or unlawfully misuse” these products that function as designed and intended.

Undaunted By Court Losses, Cali Lawmakers Push More Anti-Gun Measures

As California’s restrictive anti-gun laws continue to be deemed unconstitutional in the courtroom—the latest being a district court earlier this week striking down the law restricting purchase of handguns and semi-auto rifles to one every 30 days—the state legislature is pushing on, considering even more measures curtailing the rights of lawful citizens.

In recent weeks, courts have struck down a law that permanently denied Second Amendment rights to people who have had felony convictions vacated, set aside or dismissed, and their rights to possess firearms fully restored, a law allowing frivolous lawsuits against the firearms industry and the state’s on-again, off-again ammo background check law. You might think anti-gun legislators in the Golden State would finally back down, but alas they refuse to do so.

Now, California lawmakers are pushing a handful of restrictive measures that would further infringe on citizens’ Second Amendment rights.

Two such measures are scheduled for a hearing in the Senate Public Safety Committee on March 19. SB 1038, by Democrat state Sen. Catherine Blakespear, would cut the amount of time gun owners have to report lost or stolen firearms to 48 hours, down from five days. Such a law would make victims of theft repeat victims if they failed to meet the reporting requirement.

The other measure, SB 902, by Democrat state Sens. Richard Roth and Anthony Portantino, would add “animal mistreatment” to the list of misdemeanors that would result in a 10-year prohibition of firearms possession. Since the measure doesn’t include a clear definition of what is considered “animal mistreatment,” such a law could place California’s lawful gun owners at risk of losing their right to keep and bear arms.

Two other measures are scheduled to be heard by the same committee on April 2. SB 1160, by Sen. Portantino, would require gun owners to re-register their firearms each year and pay a yet-undetermined fee each time they re-register their guns. And SB 1253, introduced by Democrat Senate Majority Leader Lena Gonzalez, would prohibit Californians from possessing a firearm without a valid Firearm Safety Card, with the requirement to renew the card every five years.

But wait, there’s more!

Two other measures are also under consideration, but have yet to be assigned to a committee. AB 3067, by Democrat state Assemblyman Mike Gipson, would force homeowner and rental insurance companies to ask applicants how many firearms they have in their home, along with how and where they are stored. And lastly, SB 53, again by Sen. Portantino, would ban firearm possession in the home unless the firearms are stored in a DOJ-approved locked box or safe that would deny access to anyone other than the owner.

If these measures are passed by lawmakers and sent to the desk of gun-ban advocate and still-presidential hopeful Gov. Gavin Newsom, it’s nearly certain that they will be signed into law. And if they become law, it’s likely we will hear about some of them again when pro-gun advocacy groups take the state to court over these unconstitutional restrictions.

Second Amendment Roundup: Delaware’s “Assault Weapon” Ban Argued in 3rd Circuit
Likelihood of prevailing on a constitutional claim may suffice for a preliminary injunction.

The Third Circuit heard oral argument on March 11 in a challenge to Delaware’s ban on so-called “assault weapons” and ammunition magazines that hold over 17 rounds. Three overlapping cases were consolidated for argument on appeal from the denial of a preliminary injunction. Before the Court got into the meat of the Second Amendment dispute, Judge Stephanos Bibas raised a question about the preliminary injunction standard as it applies in Second Amendment cases: do the plaintiffs need to show that every preliminary injunction factor weighs in their favor, or is it enough to show they are likely to succeed on the merits?

The Supreme Court refers to the preliminary injunction as “an extraordinary remedy” that requires plaintiffs to make a “clear showing” on four factors before being granted: (1) likelihood of success on the merits, (2) that they face irreparable harm in the absence of an injunction, (3) that the balance of the equities favor them, and (4) that the public interest would be served by the injunction. The plaintiffs in Delaware focused on the first point—that they were likely to show the laws they challenged violate their Second Amendment rights. Judge Bibas questioned whether that was enough.

It should be. In fact, while there are putatively four factors to be considered in granting a preliminary injunction, in litigation against the government over the constitutionality of a law, in practice they tend to collapse. In such cases, “likelihood of success” is “the first among equals” and is typically dispositive,   L.W. by & through Williams v. Skrmetti (6th Cir. 2023), and the third and the fourth factors, the public interest and the balance of the equities are considered as one. Nken v. Holder (U.S. 2009). Furthermore, if plaintiffs show that the law they challenge violates the Constitution, then those final factors necessarily weigh in their favor, because “the enforcement of an unconstitutional law vindicates no public interest.” K.A. ex rel. Ayers v. Pocono Mountain School District (3d Cir. 2013).

The same should be true for irreparable harm as well, as the Ninth Circuit recognized in its Second Amendment decision in Baird v. Bonta (2023), where it explained that “in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balances of equities and public interest in favor of granting a preliminary injunction.”

Irreparable harm was the focus of Judge Bibas’s questioning in the Delaware argument. It is black-letter law, as the Supreme Court held in 2020 in Roman Catholic Diocese of Brooklyn v. Cuomo, that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” There is every reason to think the same is true for the Second Amendment. “Irreparable harm” is an injury that cannot be easily measured in (and therefore compensated by) monetary damages. Some circuits have recognized that any constitutional right deprivation is necessarily “irreparable.” Melendres v. Arapaio (9th Cir. 2012). And the Third Circuit has extended it at least to cover Fourth Amendment rights, noting that “[p]ersons who can establish that they are being denied their constitutional rights are entitled to relief, and it can no longer be seriously contended that an action for money damages will serve to adequately remedy unconstitutional searches and seizures.” Lewis v. Kugler (1971). As the Supreme Court made clear in New York State Rifle & Pistol Association v. Bruen (2022), the Second Amendment deserves equal treatment with the other protections in the Bill or Rights.

In alignment with this, the Seventh Circuit in Ezell v. City of Chicago (2011) answered Judge Bibas’s question well when it noted that “[t]he loss of a First Amendment right is frequently presumed to cause irreparable harm based on the intangible nature of the benefits flowing from the exercise of those rights. . . . The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. Infringements of this right cannot be compensated by damages.”

The limited scenarios in which a constitutional injury does not entitle a litigant to injunctive relief—in the Fifth Amendment takings context, for instance, where the proper remedy is money damages—supports the line the Seventh Circuit drew between “tangible” and “intangible” (but nevertheless real) injuries. Where plaintiffs show a likelihood of success in proving such an intangible injury, it follows that their injury is “irreparable” in nature.

At the Delaware argument, one of the attorneys defending the law argued that an injunction should not be the automatic result in a case showing likelihood of success in proving a constitutional violation, pointing to the Purcell principle. The Purcell principle, named after the Supreme Court case Purcell v. Gonzalez (2006), is the rule that courts should ordinarily not enjoin challenged election laws shortly before an election is set to occur, out of concern that such an injunction could result in voter confusion. But the Purcell principle is the exception that proves the rule—it speaks only to a very narrow circumstance where an injunction should not enter immediately (though to be sure, election laws can be enjoined immediately after the election upon a showing of constitutional infirmity) because of unique concerns about the fairness of elections. That the Delaware law’s defenders would look to such a dissimilar context shows how little they have to support their position.

One other point of interest from this argument. The Third Circuit panel showed some concern that the plaintiffs were pointing to information that was not technically in the preliminary injunction “record” of evidence submitted to the trial court. Judge Bibas asked the attorney for Delaware whether it was appropriate to look at such evidence because it went toward proving certain “legislative facts.” The attorney’s responded, “The very fact that they are citing expert declarations that plaintiffs in other cases chose to submit to those courts, but that for whatever reason, these plaintiffs chose not to submit here, is precisely evidence that these are adjudicative facts. . . . [and] that this is for trial courts to deal with on the record that is presented before them.” That betrayed a serious misunderstanding of the legislative facts that are crucial to Second Amendment (and a lot of other constitutional) litigation.

Legislative facts, as opposed to adjudicative facts, are not the sort of facts typically “found” through trials; they are not case specific but instead are general facts about the world. For instance, whether a plaintiff in a Second Amendment case desires to acquire an AR-15 rifle is an adjudicative fact; it is a fact specific to the plaintiff. Whether AR-15 rifles are in common use for lawful purposes, on the other hand, is a general fact about the world and therefore a legislative fact. The distinction matters because the rules of evidence only constrain courts with respect to adjudicative facts—as far as legislative facts are concerned, a court can find them based on record evidence, or it can find them based on its own research, or by reviewing law review articles and social science papers cited by the parties in their briefs.

And importantly, when a district court makes a decision based on legislative facts, its “findings” do not receive deference from the appellate courts. This makes sense, given that legislative facts are frequently the sort of facts that are used as the foundation for legal rules. That some legislative facts might be found in expert reports (or found in the sources an expert might otherwise cite) does not matter at all to their classification or to whether other courts can consider them without an expert submission of their own.

Take, as a particularly relevant example, the fact that the handgun is the most preferred firearm in America for self-defense is a legislative fact. Regardless of whether the district court received evidence on that question, and irrespective of what it might have purported to “find” about the topic, the Supreme Court in District of Columbia v. Heller (2008) was free to make its own decision, as the court of last resort in deciding constitutional questions, handling a legislative fact of relevance to constitutional reasoning. And that’s what makes Delaware’s whole argument so strange. Not only was Heller unrestricted by lower court findings on this issue, there actually were no such findings. Heller was working with a blank canvas. In that case, and in Bruen, the district court had disposed of the case without building any record at all. And yet, both Heller and Bruen made all sorts of factual assertions about firearm use, features, and history, all issues of legislative facts presented to it through the parties’ briefs, amicus submissions, and through its own research. It did not matter one whit that there had been no findings on those issues and in fact in both cases it declined to remand for development of an evidentiary record.

If the Third Circuit is considering constraining parties to a narrow “record” in resolving constitutional claims, it will have to look somewhere other than the Supreme Court’s Second Amendment caselaw to justify such a rule.

Appeals Court Ruling Poses Danger of Confiscation of All Firearms

An Obama-appointed judge in Rhode Island authored an exceedingly dangerous opinion last week, rejecting arguments that the state’s ban on magazines holding more than 10 rounds was unconstitutional. Instead, Judge William Kayatta, a graduate of Harvard Law School, built the case cleverly, declaring that LCMs (large capacity magazines) weren’t protected under the Second Amendment and, by implication, neither are the firearms they feed.

At issue was the law passed in 2022 — HB 6614 — banning the possession of LCMs, with violations being declared a felony and violators facing five years in jail upon conviction. In other words, law-abiding citizens would lose not only their firearms, but their freedoms as well.

Lawsuits brought by pro-Second Amendment advocates were rejected at the district level and, when appealed, the lower court’s decision was affirmed. But Judge Kayatta went further — much further — to build a case that anti-gunners around the country will likely seek to emulate.

The plaintiffs, Ocean State Tactical, doing business in the state as Bear Hunting and Fishing Supply, and four individual gun owners, complained that Rhode Island’s law violated their Second Amendment rights, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Due Process Clause.

In reviewing and affirming the lower court’s decision denying their complaints, Kayatta wrote that the plaintiffs “failed to prove that LCMs are ‘Arms’ within the meaning of the Second Amendment,” that the Takings Clause in the Fifth Amendment (“No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”) was not violated by the state law, and that it further “posed no problems under the Fourteenth Amendment.”

There were several pieces of the puzzle Kayatta put together to avoid the demands of Bruen, namely that the state had to provide historical analogues to the infringements in order for them to stand.

Instead,

Given the lack of evidence that LCMs are used in self-defense, it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves.

After discussing the history of states restricting possession of sawed-off shotguns and Bowie knives, he wrote:

In each instance, it seems reasonably clear that our historical tradition of regulating arms used for self-defense has tolerated burdens on the right that are certainly no less than the (at most) negligible burden of having to use more than one magazine to fire more than ten shots.

He then used what he called an “apt analogy” to support the state’s ban: rules on the private accumulation of gun powder. Without mentioning the fact that those state rules were driven by concerns over accidental fires, he wrote:

Founding-era society faced no risk that one person with a gun could, in minutes, murder several dozen individuals. But founding-era communities did face risks posed by the aggregation of large quantities of gunpowder, which could kill many people at once if ignited.

In response to this concern, some governments at the time limited the quantity of gunpowder that a person could possess, and/or limited the amount that could be stored in a single container….

It requires no fancy to conclude that those same founding-era communities may well have responded to today’s unprecedented concern about LCM use just as the Rhode Island General Assembly did: by limiting the number of bullets that could be held in a single magazine.

Indeed, HB 6614 is more modest than founding-era limits on the size of gun-powder containers in that it imposes no limits on the total amount of ammunition that gun owners may possess.

And then he completed the “workaround” he created in order to circumvent Bruen’s demands:

In sum, the burden on self-defense imposed by HB 6614 is no greater than the burdens of longstanding, permissible arms regulations, and its justification compares favorably with the justification for prior bans on other arms found to pose growing threats to public safety.

Applying Bruen’s metrics, our analogical reasoning very likely places LCMs well within the realm of devices that have historically been prohibited once their danger became manifest.

He executed his coup d’etat:

Common sense points in the same direction. It is fair to assume that our founders were, by and large, rational. To conclude that the Second Amendment allows banning sawed-off shotguns, Bowie knives, and M-16s — but not LCMs used repeatedly to facilitate the murder of dozens of men, women, and children in minutes — would belie that assumption.

Accordingly, it should not be surprising that Bruen’s guidance in this case leads us to conclude that HB 6614 is likely both consistent with our relevant tradition of gun regulation and permissible under the Second Amendment.

If this ruling isn’t appealed and overturned, the implication remains: If semi-automatic rifles are similar, if not identical, to military grade M-16s, and the LCMs that feed them can be confiscated and their owners jailed, then it’s a short step to declaring semi-automatic firearms themselves (both rifles and pistols) as contraband, and subject to the same penalties.

It is. Letting unelected, nearly unaccountable, bureaucraps decide, all on their own, what’s illegal is the essence of tyranny. Lazy judges are who allowed ‘deference’ to bureaucrap’s decisions become “law” so they wouldn’t have to stir themselves anymore than they absolutely had to.


The Atlantic Worries Bump Stock Case About More Than Bump Stocks

After the Route 91 massacre, the ATF reclassified bump stocks as machine gun parts. This was done, at least in part, to try and stave off legislation that would have banned not just bump stocks but a whole lot of other things–including, arguably, aftermarket triggers.

But regardless of why it happened, it wasn’t the right decision. The bump stock doesn’t change a semi-automatic into a full-auto weapon; not based on the NFA definition of a machinegun which is a weapon that is capable or can be easily made capable of firing more than one round with a single pull of the trigger. Bump stocks just let you pull the trigger faster, which is perfectly legal, even now.

Over at The Atlantic, they worry that this case may end up being about more than just bump stocks.

Not so long ago, a case like Cargill would not have come down to whether a court agreed with an agency’s interpretation of a statute Congress had tasked it with enforcing.

Indeed, decades of administrative law, including but not limited to the Supreme Court’s 1984 ruling in Chevron v. Natural Resources Defense Council, recognized that agency experts were often in a better position to resolve ambiguities in the statutes that Congress tasked them with enforcing than federal judges were.

Thus, it had long been settled that, so long as an agency’s interpretation of ambiguous language in a statute (like what counts as a machine gun) was reasonable, the agency was allowed to act based upon that interpretation…

That was already worrying enough, but what’s alarming in Cargill is that the Court is in the midst of getting rid of deference to agencies outside of the “major questions” context, too. Thus, instead of debating whether ATF’s reaction to the Las Vegas shooting was reasonable (which it clearly was), the oral argument before the Supreme Court devolved into the justices struggling to understand the exact mechanical function of a bump stock—so that they could decide for themselves whether or not it fits within the statutory definition of a “machine gun.”

As even a cursory perusal of the transcript reveals, this wasn’t a high-minded debate about broader points of law; it was nine neophytes trying to understand the mechanics of something they’ve never touched solely by having it described to them.

One comes away from the transcript with the sense that the argument would have been far more productive had it been held on a shooting range. So instead of debating whether the executive branch overreacted or not, the debate was about what, in the abstract, the justices would have done in its place.

Of course, the author clearly frames this as a bad thing. Apparently, if unelected bureaucrats can’t essentially determine law by decree, then something is inherently wrong with our country.

Yet this kind of “thinking” is a major problem with our nation in the first place.

Yes, I get the concept that experts may well be better at understanding complex issues than elected officials who, frankly, write a lot of laws about things they don’t understand and do a poor job of it.

That’s entirely valid.

The problem is that unelected bureaucrats can unilaterally decide something is illegal just so long as they can come up with some reasoning that sort of looks valid. They do this with all sorts of things, not just firearms, but Cargill is a little different. This is something that was declared perfectly legal to sell, then reclassified as illegal simply because it became politically expedient to do so.

If that doesn’t highlight the issues with the current system perfectly, I don’t know what can.

If the ATF can suddenly decide that this device was legal but now isn’t, what’s the next thing they’ll decide is illegal?

While ignorant politicians are a danger, our system was created with the idea that they’d be the ones coming up with the laws and not bureaucrats. If this case turns out to be about more than bump stocks, then you’re going to have a hard time convincing me that it’s a bad thing.

Nevada Court Signals Suit Against Smith & Wesson Is Improper

Amid ongoing litigation brought by anti-gun Smith & Wesson shareholders over continued AR-15 production, Nevada’s Clark County District Court signals no “substantial likelihood” Smith & Wesson will be found liable, saying the activist shareholders appear not to be aligned with the company’s best interest and requiring them to post a half-million-dollar bond to continue their suit.

On December 5, 2023, Breitbart News reported that that lawsuit against Smith & Wesson was brought by a group of anti-gun nuns, shareholders all, who claimed the gun maker “knowingly allowed the Company to become exposed to significant liability for intentionally violating federal, state, and local laws through its manufacturing, marketing, and sales of AR-15 style rifles and similar semiautomatic firearms.”

The plaintiffs made clear they were aware of the Protection of Lawful Commerce in Arms Act (PLCAA) but suggested the Act does would not protect Smith & Wesson because they continued making AR-15s after one of their rifles was used in a high profile shooting.

The nuns suggested the “board’s unwillingness to exercise any oversight whatsoever in connection with the Company’s illicit manufacturing, marketing, and sales of AR-15 rifles” removes the company from PLCAA protections.

However, a record of the February 20, 2024, exchanges between Clark County District Judge Joe Hardy and attorneys for both plaintiffs and defendants tells a story which shows Smith & Wesson is unlikely liable in the suit.

Hardy noted various reasons for this unlikelihood, one of which was a victory for the anti-gun shareholders would deliver not “benefit the corporation or its security holders.” The transcript of court proceedings make clear that Hardy does not believe the anti-gun shareholders’ positions are in line with the vast majority of Smith & Wesson shareholders.

On December 5, ,2023, Breitbart News noted that the anti-gun shareholders described AR-15 rifles as “machineguns” which should be regulated under the National Firearms Act (NFA). Having posited this argument, they then claimed Smith & Wesson violates federal law by not limiting sales to buyers who submit to NFA guidelines/requirements.

Moreover, the anti-gun shareholders claimed “AR- 15-style rifles have been the weapon of choice for the killers responsible for the deadliest mass shootings in American history, including the recent mass murders in: (i) Buffalo, New York; (ii) Uvalde, Texas; (iii) Highland Park, Illinois; (iv) Colorado Springs, Colorado; (v) Nashville, Tennessee; (vi) Louisville, Kentucky; (vii) Allen, Texas; and (viii) Lewiston, Maine.”

Ironically, they do not mention the April 16, 2007, Virginia Tech University shooting in which an attacker armed with two handguns killed more people than were killed in any of the seven attacks they laid at the feet of AR-15s. The Virginia Tech attacker killed 32 people.

The court also ruled that the plaintiffs’ use of graphic images in their filings apparently had no legitimate reason to be included.

The judge also required the plaintiffs’ to post $500,000 as a bond in this case, which means that if Smith & Wesson wins, the plaintiffs’ will forfeit that money. This too signals that the judge is skeptical of the merits of the plaintiffs’ arguments, and is making them put real skin in the game to continue the challenge.

AR-15 rifles–and AR-15 variants–are made by numerous companies and comprise the most popular rifle and rifle platform in the United States.

What kind of demand exists for the AR-15 rifle/platform? On January 12, 2024, Breitbart News pointed to National Shooting Sports Foundation numbers showing there were over 28 million AR/AK-style rifles in the U.S. as of 2021, and that figure has certainly seen exponential growth during the past three years.

The suit is Adrian Dominican Sisters v. Smith & Wesson Brands, Inc., No. A-23-882774-B in the District Court of Clark County, Nevada.

Spoiler Alert: ‘Assault Weapons’ Ban ~ Government Must Prove That Weapons Are NOT In Common Use

The United States Court of Appeals for the Fourth Circuit in Bianchi v. Brown issued an important order that is likely to backfire on the anti-gunners.

The court directed the parties to submit supplemental briefing addressing the following two questions:

  • (1) does the determination of whether a weapon is “in common use” occur at the first or second step of Bruen’s text-and-history methodology, and
  • (2) who bears the burden of establishing that a weapon is in common use. Heller and Bruen provide explicit answers to the questions posed by the Fourth Circuit, and those answers favor the protection of our Second Amendment rights.

Bianchi challenges the constitutionality of Maryland’s “assault weapons” ban, which seeks to outlaw the AR-15, among other semiautomatic firearms.

Tellingly, the original Fourth Circuit panel in Bianchi seemed poised to issue a pro-Second Amendment ruling, but before that occurred, the Fourth Circuit took the case en banc likely to avoid the possibility of such an outcome.

Bruen instructs that the constitutional inquiry starts with the text of the Second Amendment. This means that, at the outset, a lower court must determine whether the object of a firearm’s regulation is an “arm.”

At this first step, Bruen instructs that the burden is on the party challenging the firearms regulation to show that the item being banned is an “arm.” Heller defined “arms” as “weapons of offense or armor of defense.” There is no doubt that AR-15s and other semiautomatic rifles subject to the Maryland ban are “arms,” which means that the burden shifts to the government to show that the arms it seeks to ban are not “in common use” by Americans for lawful purposes (or are dangerous and unusual).

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Gun Rights Groups Drawing a Bead on Illinois ‘Assault Weapons’ Law, Taking Issue to Supreme Court

On Monday, the pro-Second Amendment group Gun Owners of America and their affiliate, the Gun Owners Foundation, filed a petition for certiorari with the United States Supreme Court to forward their challenge to Illinois’s restrictive “assault weapons” law.

 The groups, representing Illinois gun owners, argue the law imposes an unconstitutional, sweeping ban on hundreds of commonly owned and lawfully used rifles and ammunition magazines.

“GOA has been at the forefront of this challenge since before the bans even took effect, and while our goal was never to have to end up before the Supreme Court, we were fully prepared to do so,” said Erich Pratt, senior vice president of Gun Owners of America.

“We urge the Justices to hear the pleas of millions of Americans in Illinois and several other states nationwide who cannot purchase many of the commonly owned semiautomatic firearms available today because of the unconstitutional laws passed by anti-gun politicians,” Pratt said.

The constitutionality argument is especially interesting, coming as it does after the Supreme Court’s Bruen decision, which is generally regarded as having recognized the original meaning of the Second Amendment and has been the cause of much rewriting of laws around concealed carry. Even before Bruen, concealed-carry laws had been on a liberalization trend for some years, in fact since Florida passed the first “shall-issue” law in 1987.

Illinois, not surprisingly, has one of the most draconian “assault weapons” laws in the United States.

The strict gun control law, signed by Democratic Illinois Gov. J.B. Pritzker last year, carries penalties for anyone who, “Carries or possesses… Manufactures, sells, delivers, imports, or purchases any assault weapon or .50 caliber rifle.”

Those who legally possess a banned weapon under the law must register it with the Illinois State Police.

The law also includes statutory penalties for anyone who “sells, manufactures, delivers, imports, possesses, or purchases any assault weapon attachment or .50 caliber cartridge.”

The law appears to have sparked considerable non-compliance, and deliberate civil disobedience may be part of that trend.

Of the over 2.4 million Firearm Owner Identification (FOID) cardholders, there have only been 112,350 disclosures filed as of Dec. 31, 2023, according to state police data. Another 29,357 disclosures were in the process of being completed as of Jan. 6.

Gun rights activists previously told Fox News Digital that apparent high rates of noncompliance came from a mix of ignorance of what the law requires and civil disobedience.

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Warning shots get ‘self-defense’ protections too, Ohio Supreme Court rules

A Clark County man was entitled to argue self-defense when he intentionally shot toward a person, and was not required to show he intended to kill or harm the man who threatened him, the Supreme Court of Ohio ruled today.

A divided Supreme Court vacated the felonious assault conviction of Tyler Wilson for his altercation at a Springfield gas station in 2021. At trial, Wilson was acquitted of attempted murder but convicted of felonious assault after he fired a shot at Billy Reffett. The shot struck the window frame of Reffett’s truck, near his head.

The trial judge refused to instruct the jury to consider Wilson’s argument that he acted in self-defense. The judge ruled Wilson was not claiming self-defense because Wilson testified that he did not aim the gun at Reffett and had no intention of harming him but was just trying to get Reffett to “back off.”

In the Court’s lead opinion, Justice Melody Stewart stated that the Ohio self-defense law does not require an intent to harm or kill another, just the “intent to repel or escape force.” Shooting toward another with the intent to stop an aggressor is sufficient to justify a self-defense jury instruction, she concluded.

The Supreme Court remanded the case to the Clark County Common Pleas Court to vacate Wilson’s sentence and conduct further proceedings.

Justices Michael P. Donnelly and Jennifer Brunner joined Justice Stewart’s opinion. Justice Patrick F. Fischer concurred in judgment only without a written opinion.

In a dissenting opinion, Justice Joseph T. Deters wrote that Wilson’s version of what had happened did not warrant a self-defense instruction.

Because Wilson insisted that he was not aiming the gun at Reffett or trying to shoot him, Wilson was arguing that he had not committed felonious assault. Arguing he was not guilty of felonious assault is different than claiming he acted in self-defense, which would require Wilson to admit he attempted to harm Reffett but was justified in doing so, Justice Deters explained.

Chief Justice Sharon L. Kennedy and Justice R. Patrick DeWine joined Justice Deters’ opinion.

Biden Goes To Court, Demanding Warrantless Surveillance Powers
An attempt to bypass congress.

A request by the Biden administration to the courts for the renewal of contentious warrantless surveillance powers, has stoked controversy.

These surveillance powers, demanded by American intelligence agencies, are on the verge of expiration. Critics argue that this move either reflects business as usual, or reflects a sidestepping of spying reforms.

According to US Senator Ron Wyden (D-OR), the decision of the US Department of Justice to pursue an extension of the FISA Section 702 for a year without congressional consideration manifests a disregard for reforms aimed at safeguarding American rights.

Expressing his criticism, Wyden offers an alternative legislation which he and other lawmakers proposed that seeks to maintain Section 702 surveillance albeit under strict regulations constraining unwarranted spying on Americans. Wyden is particularly irked by the White House’s direction to prosecutors to seek renewal of the FISA powers in court before his proposed alternative legislation could be wholly considered by Congress.

Senator Wyden did not mince words in expressing his dissatisfaction with the approach of the Biden administration and the Justice department. “It is utterly ridiculous that the Biden Administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans’ rights,” he said.

The contentious issue revolves around Section 702, an amendment to the Foreign Intelligence Surveillance Act that allows US intelligence agencies to spy on foreigners considered a threat to national security. Despite the fact that this surveillance is meant for overseas intelligence targets, the incidental warrantless surveillance of US residents has prompted concerns among privacy advocates.

The FBI’s past missteps of using Section 702 to snoop on various individuals ranging from US elected officials to campaign donors adds credence to these concerns. Section 702 is scheduled to lapse by April 19 unless Congress moves to renew it. This has led to a push among several lawmakers to alter the rules and add guards against potential future abuse. To keep it running, Congress had granted a four-month extension last year.

There are currently four legislative proposals in the works to renew Section 702. Two of these initiatives, namely the Protect Liberty and End Warrantless Surveillance Act and the Government Surveillance Reform Act of 2023, entail a warrant requirement prior to investigations.

The White House has resisted attempts to reform Section 702.

California Violated the Second Amendment by Disarming People Based on Nullified Convictions
A federal judge ruled that three men who committed nonviolent felonies decades ago are entitled to buy, own, and possess guns.

The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.

According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.

“Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood,” U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. “Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions.” After considering the state’s cursory defense of those determinations, Donato thought it was clear that California had “violated the Second Amendment rights of the individual plaintiffs.”

Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for “any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.”

California’s policy is different. “The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor’s pardon that expressly restores their right to possess firearms,” Donato explains. The requirements for California convictions are similar.

In Jones’ case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in “firearms, chemical agents, batons and use of deadly force training,” for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.

According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was “traveling at a high rate of speed” on his motorcycle while “intoxicated” and that he initially “accelerated,” thinking “he might be able to outrun” the cops before he “reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him.”

Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he “received a certificate of discharge, showing that he successfully completed his probation.” It “included a statement that ‘the defendant’s civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'”

Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order “set aside” the conviction and released Linton “from all penalties and disabilities resulting from the offense.” But when he tried to buy a rifle in November 2016, he was rejected.

The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, “DOJ agents came to Linton’s home and seized several firearms from him that he had legally acquired and owned for years, including an ‘antique, family-heirloom shotgun.'”

Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt “unsafe and unprotected” there “without at least the option of having appropriate firearms available or at hand if needed.” He added that he “would like to be able to possess or handle firearms or ammunition for  recreational purposes, such as target shooting,” while visiting friends and relatives in California.

Paul McKinley Stewart’s disqualifying offense dates back even further than Jones’ and Linton’s. In 1976, when he was 18 and living in Arizona, he “stole some tools from an unlocked truck in a commercial yard.” He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.

Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ “advised him that he was ‘disqualified’ from purchasing or possessing firearms ‘due to the presence of a prior felony conviction.'” Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court “ordered ‘that the civil rights lost at the time of sentencing are now restored,’ ‘set aside [the] judgment of guilt,’ ordered the ‘dismissal of the Information/Indictment,’ and expressly held that the restored rights ‘shall include the right to possess weapons.'” The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.

Defending these denials in federal court, the state argued that the plaintiffs were not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment because they were not “law-abiding, responsible citizens.” In California’s view, Donato writes, “a single felony conviction permanently disqualifies an individual from being a ‘law-abiding, responsible citizen’ within the ambit of the Second Amendment.” He sees “two flaws” that “vitiate this contention.”

First, Donato says, “undisputed facts” establish that all three plaintiffs are “fairly described as law-abiding citizens.” Judging from the fact that “California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force,” that was the state’s view of him until 2018, when he was peremptorily excluded from “the people.” And as with Jones, there is no indication that the other two plaintiffs have been anything other than “law-abiding” since their youthful offenses. “Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years,” Donato notes. “Stewart has had a clean criminal record for the past 48 years.”

Second, Donato says, California failed to identify any “case law supporting its position.” In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court “determined that ‘the people,’ as used throughout the Constitution, ‘unambiguously refers to all members of the political community, not an unspecified subset.'” That holding, he says, creates a “strong presumption” that California failed to rebut.

Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California’s argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. “Heller and its progeny lead us to conclude that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction,” the 3rd Circuit said. “The Supreme Court’s references to ‘law-abiding, responsible citizens’ do not mean that every American who gets a traffic ticket is no longer among ‘the people’ protected by the Second Amendment.”

Since Jones, Linton, and Stewart are part of “the people,” California had the burden of showing that disarming them was “consistent with this Nation’s historical tradition of firearm regulation”—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. “California did not come close to meeting its burden,” Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are “virtuous,” a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs’ long histories as productive and law-abiding citizens.

“California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here,” Donato says. “It did not identify even one ‘representative analogue’ that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs’. That will not do under Bruen.”

Donato rejected “California’s suggestion that it might have tried harder if the Court had asked.” Under Bruen, “the government bears the burden of proving the element of a national historical tradition,” he writes. “California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so.”

Donato was dismayed by the state’s attitude. “The Court is not a helicopter parent,” he writes. “It is manifestly not the Court’s job to poke and prod litigants to live up to their burdens of proof.”

The policy that Jones, Linton, and Stewart challenged seems inconsistent with California’s criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment’s reflexive hostility to the Second Amendment.

“This case exposes the hypocrisy of California’s treatment of those convicted of non-violent crimes,” says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. “While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people.”

SCOTUS heard oral arguments today in the ATF bump stock ban case

SCOTUS Justice Jackson Just Said the Dumbest Thing About Guns and I Can’t Stop Laughing.

Supreme Court Justice Ketanji Brown Jackson must have fallen asleep last night watching a vintage ’80s Chuck Norris movie as part of her preparation to hear oral arguments today in the Garland v. Cargill bumpstock ban lawsuit because her understanding of firearms is even less realistic than your typical Cannon Films production.

While I don’t have the transcript yet for you — arguments are going on as I write this column — the Firearms Policy Coalition has been doing the good work of posting highlights to Twitter/X.

(Don’t miss the update below from the official transcript)

When it was time for the Biden Department of Justice to present its side to the Court, Justice Clarence Thomas asked what happens, according to the FPC, “with the trigger in a bump stocked rifle vs a full-auto rifle.”

Please don’t wet yourself laughing when you read the government’s response.

My 14-year-old self, forever trapped in 1983, would have just one thing to say to a rifle that would let me fire 600 rounds a second: “BITCHIN’!”

Justice Jackson, with images of Chuck Norris killing an entire battalion of Vietnamese soldiers with a single magazine in “Missing in Action 2: The Beginning” still fresh in her mind must have thought, “600 rounds? I raise you 200 rounds to 800 — each and every second.”

ASIDE: Every time I read the words “Justice Jackson” I can’t help but think that’s what Action Jackson went into after he retired from the force.

Anyway, this was Jackson’s contribution to the discussion.

I dunno, maybe she wasn’t paying full attention and misheard the government’s ridiculous claim.

I’m not singling out Justice Jackson for any special mocking here — just the regular amount. Jackson was speaking off the cuff, and everybody makes mistakes doing that. While it’s extra unbecoming for a Justice of the Supreme Court to demonstrate such laughable ignorance about a case she’s supposed to be hearing with her own ears, the government took its time to prepare its case — they wrote stuff down and everything — and still managed to come up with 600 rounds per second.

Some days I wish firearms could do all the things that gun-grabbers claim they can do.

Do I really want an AR-15 that can fire 800 rounds per second? I mean, assuming I could find a magazine with that kind of capacity? No, obviously. The barrel would melt, the bullets would spray all over the place, and I’m having trouble imagining what would happen when 800 brass cartridges go flying out all over the range in a single second.

That one second would also put a serious dent in my .223 stash.

Still… what a glorious second that would be.

UPDATE: SCOTUS did a great job of getting the transcript posted, so I found the relevant bits for you.

MR. FLETCHER: [speaking to Chief Justice Roberts] What you are doing is just pushing forward. Now, if you look at the videos that we cite in Footnote 1 of our reply brief, some of them are in slow motion, and they show that when the shooter is doing this, the hand is moving back and forth very fast, 600 times a second. That’s not happening because the shooter is able to move their hand back and forth 600 — or, I’m sorry, 600 times a minute.

So the Firearms Policy Coalition got the first part right but then missed the correction. Easy to do while essentially liveblogging — I should know. Still, 600 rounds per minute is only slightly less impossible than 600 rounds per second. Even if under some extreme circumstances a bumpstock-enhanced cyborg were able to fire that quickly, a semi-automatic rifle wouldn’t stand up to the strain — and where would the rounds come from?

And here’s Justice Jackson: “And when, you know, ‘function’ is defined, it’s really not about the operation of the thing. It’s about what it can achieve, what it’s being used for. So I see Congress as putting function in this. The function of this trigger is to cause this kind of damage, 800 rounds a second or whatever.”

I think “or whatever” pretty well sums up Jackson’s interest in learning about firearms.