Category: Courts

Analysis: ‘One Weird Trick’ to Uphold Gun Restrictions Returns to Federal Court

particularly flimsy legal theory has reappeared in federal Second Amendment litigation.

On Monday, US District Judge John L. Kane upheld Colorado’s three-day waiting period for gun purchases. He ruled the sales restriction didn’t violate the Second Amendment. His reasoning? The Second Amendment doesn’t actually protect gun sales at all.

“After examining the language of the Second Amendment using the Supreme Court’s analysis in Heller, I find, for the purposes of Plaintiffs’ Motion, that the plain text does not cover the waiting period required by the Act,” he wrote in Rocky Mountain Gun Owners v. Polis. “This conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible.”

Judge Kane, a Jimmy Carter appointee, said the state’s restriction passes the Second Amendment test established in the Supreme Court’s New York State Rifle and Pistol Association v. Bruen decision by effectively short-circuiting it. Instead of examining the historical record for analogs to the modern waiting period, he argued that was unnecessary because the “right to keep and bear arms” doesn’t directly mention a right to buy, make, or sell them.

“From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered,” he wrote. “Still, Plaintiffs attempt to equate the words ‘obtain’ and ‘possess.’ But these terms are not equivalent. To ‘keep,’ under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, ‘hav[ing] weapons’ indicates the weapons are already in one’s possession, not that one is receiving them.”

As I said when a judge in the Ninth Circuit employed the same logic to uphold a homemade gun ban last year, this is like a “one weird trick that plaintiffs hate” theory of Bruen. There’s no need to perform the analysis the Supreme Court requires if you cut the case off before it even really begins.

“Though it leads with a recognition of the primacy of Bruen’s ‘plain text’ point, [the plaintiff] seeks in its opening brief to jump ahead in the analysis to a historical/tradition assessment (and to jump ahead in Bruen to that decision’s discussion of how to conduct such an assessment),” Judge George H. Wu wrote in his ruling rejecting a request for a preliminary injunction against California’s ban on unserialized homemade guns. “But it has effectively attempted to avoid the necessary threshold consideration – does the ‘Second Amendment’s plain text’ cover the issue here? No, it plainly does not. AB 1621 has nothing to do with ‘keep[ing]’ or ‘bear[ing]’ arms.”

There has been a lot of disagreement among the lower court as to how best to implement the Bruen test. Judges have come down on different sides of whether the same restrictions have relevantly similar historical analogues. That disagreement will likely continue until the Supreme Court steps in and further clarifies how lower courts should carry out its test–a process it’s expected to start in its current case United States v. Rahimi.

But the idea that the Second Amendment guarantees the right to keep and bear arms but not the right to make or acquire arms isn’t likely to be part of that clarification. It’s simply too cute by half. The argument makes you wonder what exactly Judge Kane and Wu think the point of protecting keeping and bearing arms is if the government can simply ban their manufacture or sale.

Judge Kane seemed to realize this because he did go through an attempt to do the actual Bruen analysis. He ruled that the law would still stand even if the Second Amendment protects sales. He argued colonial-era laws that disarmed intoxicated people were relevantly similar to the waiting period because both aimed at “preventing impulsive acts of firearm violence.”

“These measures are sufficient to show that our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,” Judge Kane wrote. “Plaintiffs do not seem to dispute this determination, but instead focus on whether those regulations are ‘relevantly similar’ to the Waiting-Period Act. For the purposes of this proceeding, I hold that they are.”

That line of argument doesn’t seem much more likely to persuade the Supreme Court–if it ever makes it that far up the ladder. But it at least engages with the test the Court handed down. The idea that the Second Amendment provides no protection at all to the act of acquiring arms is little more than an attempt to hand wave away Bruen.

State Rep. Dan Caulkins files petition to U.S. Supreme to review Assault Weapons Ban decision

DECATUR, Ill. (WRSP) — State Representative Dan Caulkins (R-Decatur) has petitioned the Supreme Court of the United States to review the Illinois Supreme Court’s decision on Illinois’ weapons ban law on due process, equal protection, and Second Amendment grounds.

Caulkins believes the issue is the denial of due process under the 14th Amendment arising from Justices Elizabeth Rochford and Mary Kay O’Brien participating in the case despite overwhelming reasons they should have recused themselves.

He feels that both justices received disproportionate contributions from the leaders of the co-equal branches of government in the aggregate sum of more than $2.5 million calling into question their impartiality and independence.

He says that both justices received the endorsement of G-PAC, which states: “Each endorsed candidate supports our #1 legislative priority when the General Assembly is called into session: banning assault weapons and large-capacity magazines.”

Both Justice Rochford and O’Brien received disproportionate campaign contributions, and both made a commitment to support the legislative policy of banning assault weapons,” Caulkins said. “Additionally, the donations to these justices came from Gov. JB Pritzker and House Speaker Chris Welch which calls into question the independence of the judiciary and the separation of powers.

Given the size of the campaign contributions and who gave the contributions, there not only is a question of fairness and impartiality, there also is a question of the independence of the Justices which calls into question the validity of the state court decision.

Caulkins said the due process under the 14th Amendment argument calls into question the fairness of the proceedings at the Illinois Supreme Court, but the petition also asks for a review of the substance of the case which centers on the three readings requirement in the Illinois Constitution, the Second Amendment, and the Equal Protection clause of the 14th Amendment.

The petition states:

There exists no rational basis to criminalize one person indistinguishable in any manner based on conduct from another immunized from the criminal liability or to speculate that the prohibited present a greater risk for mass shootings than the grandfathered based on the date an assault weapon was acquired.

The grandfathered who are immunized from criminal liability for possession have no greater training than the prohibited merely because the grandfathered already possess an assault weapon. Or, if the grandfathered are presumed to be safe (lawful) to possess assault weapons by mere possession, then the prohibited would satisfy the same safety presumption if allowed to acquire and possess.

The fortuity of time of acquisition bears no connection to safety or danger. The resulting arbitrary classification on the face of the Assault Weapons Partial Ban fails all levels of scrutiny test and should be invalidated on this additional basis.

This petition is about the thousands of plaintiffs who joined my lawsuit and were denied a fair proceeding at the Illinois State Supreme Court,” Caulkins said. “The Illinois Supreme Court does not have an objective standard for recusals. The Court relies on individual justices to determine if there is a conflict. The end result is an unfair process that leads to biased outcomes. We are asking the U.S. Supreme to review this case based on the lack of fairness as well as the merits of our arguments against the weapons ban law.

And on the other hand, there’s a subset of people who understand that when SCOTUS restores fundamental rights as they should be, they follow right along, like they should.
Now, I don’t advise cheating Uncle, or driving while intoxicated, but goobermint needs to stop with restricting rights by any piddly means it can devise.

Judge Nixes Lifetime Gun Ban for Non-Violent Misdemeanor Offense

In a case very reminiscent of Range v. Garland, in which the Third Circuit Court of Appeals ruled that Bryan Range’s conviction for lying about his income on a food stamp application decades ago should not have resulted in a lifetime prohibition on keeping or bearing arms, a federal judge in Pennsylvania has ruled that a man’s 2005 DUI arrest and conviction on misdemeanor charges cannot disqualify him from exercising his Second Amendment rights.

Though Edward Williams was convicted of a misdemeanor offense, it was also a crime punishable by up to five years in prison. Williams didn’t serve any time behind bars, however. Instead, he was sentenced to 90 days of house arrest and ordered to receive treatment for drug and alcohol abuse. Since the potential sentence was more than a year in prison, however, the misdemeanor conviction meant that Williams was considered a prohibited person going forward, and he was no longer allowed to possess or purchase a firearm.

Williams first tried challenging the statute in question back in 2017 and was denied, but applied for a re-hearing after the Supreme Court issued its decision in Bruen last year. This time around, in a case argued by 2A attorney Joshua Prince and supported by the Firearms Policy Coalition,  U.S. District Judge John M. Younge applied the Court’s text, history, and tradition test to the Williams case, as well as the Third Circuit’s decision in Range v. Garland, and found that Williams cannot be denied access to his right to keep and bear arms as a result of a non-violent misdemeanor conviction, even if it was punishable by years behind bars.

The Government has not met its burden in proving that the prohibition on Plaintiff’s possession of a firearm due to his DUI conviction is consistent with historical firearms regulations.

Finding a historical tradition of similar firearms regulations “requires that the government identify a well-established and representative historical analogue, not a historical twin.”

A modern regulation that would not have been contemplated during the Founding Era can be found relevantly similar to then-existing regulations by considering “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.

That federal law has, over the past century, allowed for the disarmament of certain types of convicted criminals does not satisfy the constitutional issues raised by applying Section 922(g)(1) to all convictions punishable by more than a year of imprisonment.

Instead, the Court must consider more longstanding limitations on firearm possession to “demarcat[e] the scope of [the] constitutional right.”

The historical firearms regulations provided by the Government are not sufficiently analogous to the case considered here to satisfy its burden.

Younge noted that while he remains “quite concerned about the prospect of granting access to firearms to persons who have demonstrably abused alcohol”, he remains unconvinced that “the general dangerousness of drunk driving and of combining firearm use and alcohol consumption establishes that DUIs must therefore be considered sufficiently analogous to historical examples of ‘dangerous’ conduct that have previously served as grounds for disarmament.”

Younge acknowledged the government’s citing of laws that prohibited the carrying of firearms while intoxicated, but argued that none of those regulations “allude to disarmament lasting beyond the individual’s state of intoxication, and none provided for permanent disarmament, as Section 922(g)(1) does.”

I agree with Younge that drunk driving is a serious concern, and not something that should be easily dismissed, but the fact is that Williams wasn’t barred forevermore from getting behind the wheel of a car because of his misdemeanor conviction. He can obtain a driver’s license and purchase a vehicle despite his DUI conviction that’s now nearly 20 years old, but he can’t legally purchase or possess a firearm. That’s a punishment that doesn’t fit the crime, as far as I’m concerned.

I’m sure the DOJ will appeal this case to the Third Circuit, but given their decision in Range it’s unlikely that Merrick Garland is going to get the response he’s looking for from the appellate court. By the time Williams v. Garland gets to SCOTUS the justices will have had a chance to weigh in on Bryan Range’s case, and if the Court does adopt a “dangerousness” standard for depriving individuals of their Second Amendment rights in Rahimi, then both Range and Williams have an excellent chance of having the lower court decisions in their favor approved by a majority of Supreme Court justices as well.

There’s a subset of people in the U.S. who hate the idea of RKBA and the Supreme Court’s rulings and will do anything possible to sabotage them

Federal Judge Declares No Right to Acquire a Gun

If we possess a right to keep and bear firearms, it stands to reason that we must also have the right to acquire one, but according to a federal judge in Colorado no such right exists.

U.S. District Judge John L. Kane, an 86-year-old appointee of Jimmy Carter back in 1977, made the eyebrow-raising decision in a case known as Rocky Mountain Gun Owners v. Polis, which challenges Colorado’s newly-enacted three-day waiting period on all gun sales. Kane denied the group’s request for an injunction that would have halted enforcement of the waiting period while the litigation continues, ruling the plain text of the Second Amendment only covers the right to keep and bear a firearm, not to purchase or acquire one for lawful purposes.

Plaintiffs contend that the words “keep” and “bear” in the Second Amendment are implicated by the waiting period required by the Act. In Heller, the Supreme Court examined the “normal meaning” of those words at the time of the Nation’s founding, reviewing definitions from contemporaneous dictionaries. As the Court explained, the 1773 edition of Samuel Johnson’s Dictionary of the English Language “defined ‘keep’ as, most relevantly, ‘[t]o retain; not to lose,’ and ‘[t]o have in custody.’”.

 The Court then turned to the word “bear” and determined that it means to “carry.” The Court clarified that, when “bear” is “used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose—confrontation.” So, putting all the pieces together, the Court found that the text of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”

From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered. Still, Plaintiffs attempt to equate the words “obtain” and “possess.” But these terms are not equivalent. To “keep,” under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, “hav[ing] weapons” indicates the weapons are already in one’s possession, not that one is receiving them.

So you have the right to possess a firearm but not the right to obtain one? Kane’s reasoning would leave the door open for all kinds of restrictions on the acquisition of arms. Why not a six-month waiting period? How about a $500 administrative fee for every firearm purchase, or mandating purchasers come up with a half dozen character references before a gun can be sold. Taken to its extreme, Kane’s position would leave open the possibility of a complete and total ban on gun sales. It’s ridiculous to separate the right to obtain a firearm with the right to keep and bear it, but that’s exactly what the judge did here.

Kane went on to say that even if commercial sales of firearms are protected by the Second Amendment’s language, Colorado’s waiting period is likely to withstand court scrutiny because there were no “Guns-R-Us” outlets at the time the Second Amendment was ratified. It could take days, weeks, or even months for a would-be gun owner to acquire a firearm while they waited for a shipment of muskets to be delivered to their nearest city or town. Of course, there was no law requiring people to wait before purchasing a firearm if one was readily available, nor were there any prohibitions on private transfers of arms. If your neighbor had a fowling piece that you wanted to purchase, you could walk or ride to his farm and make a trade or a cash transaction without the possibility of punishment from the state.

Further, says Kane, though there aren’t any statutes in the historical record that mirror Colorado’s modern waiting period, there are some old laws that he believes are a close enough analogue to allow the state’s three-day waiting period to pass muster; laws forbidding the carrying of firearms while intoxicated.

Perhaps the state could impose a more narrowly tailored requirement, but that is not the inquiry here. The intoxication laws prevented all individuals from becoming intoxicated and engaging in the prohibited conduct. They did not apply only to those people who would have certainly used a firearm irresponsibly while intoxicated. Despite Plaintiffs’ arguments, the “how” and the “why” of the intoxication laws and the Waiting-Period Act are sufficiently similar to demonstrate that the Act is consistent with the Nation’s historical tradition of firearm regulation.”

The purpose of the waiting period, according to Colorado’s legislature, is to “help prevent impulsive acts of firearm violence, including homicides and suicides.” According to Kane, because the ostensible reason for the waiting period is similar to the rationale on historical prohibitions against carrying while under the influence, that’s enough to make the two laws analogous. Of course, under that theory, virtually any gun control measure could be deemed a part of the historical tradition, so long as lawmakers contend that its purpose is to prevent “impulsive” acts of gun violence.

If the majority in Bruen believed that opinion would put a stop to the Second Amendment shenanigans in the lower courts, it should be clear to them by now that is most certainly not the case. We’ve seen judges declare that commonly owned arms like semi-automatic rifles are not protected by the Second Amendment, wide swathes of public spaces can be deemed “sensitive” and off-limits to lawful carry, and the right to keep and bear arms does not encompass the right to obtain one.

Each of these decisions is a gross misreading of Bruen as well as a green light for fundamental infringement on our Second Amendment rights, but until SCOTUS intervenes these abuses will continue.

Gun Hobbyists (and Liberty) Win Big in Court
Fifth Circuit judges slap the ATF for making up illegal rules against homemade guns.

The Biden administration’s scheme to threaten the public with tightened gun-control regulations by reinterpreting laws to mean what they never meant in the past is running into some speed bumps. Stumbling over one of those obstacles is an attempt by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to define unfinished firearm frames and receivers—functionally, paperweights—as firearms for the purpose of regulating homemade “ghost guns.” The courts aren’t buying the government’s argument and on November 9 delivered another slap to regulators and the White House.

Law Doesn’t Mean What You Claim It Means

“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” wrote Judge Kurt D. Engelhardt for three judges of the Fifth Circuit Court of Appeals in ruling on VanDerStok v. Garland. “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”

Specifically, the court addressed portions of the ATF’s new “frame and receiver” rule which reinterpreted existing law, particularly elements of the Gun Control Act of 1968. The rule would extend the ATF’s reach and allow the government to restrict home construction of firearms in ways that the Biden White House wants as part of a crusade against so-called “ghost guns” but hasn’t been able to get through Congress.

In particular, the new ATF rule redefines firearms terms to incorporate modern devices that work differently than designs that were common when the law was written. The rule also treats unfinished parts that must be drilled, milled, and assembled by hobbyists to become working mechanisms—often called “80 percent receivers”—as if they are completed firearms. It additionally targets parts kits that can be combined with finished frames and receivers to make functioning guns. As I wrote last year, the rule’s language is “clear as mud” in seeking to subject as much activity as possible to regulation.

“The Final Rule is limitless,” wrote concurring Judge Andrew S. Oldham who agreed with the majority “without qualification” but wrote separately because he considered his colleagues insufficiently brutal to the ATF. “It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze.”

That was much the reaction of U.S. District Judge Reed O’Connor who vacated the entire ATF rule in June. The appeals court panel upholds the district court’s findings, though it returns the case to the district “for further consideration of the remedy, considering this Court’s holding on the merits.” That might mean an outcome short of vacating the entirety of the rule, though Oldham’s concurrence suggests he prefers something rather more drastic to slap down the ATF for its presumption.

The ATF Gets an Earful

In fact, none of the Fifth Circuit judges were impressed by the ATF’s arguments.

“Both a ‘frame’ and a ‘receiver’ had set, well-known definitions at the time of the enactment of the GCA in 1968,” the court notes of the ATF’s efforts to extend its remit over unfinished components. “As written, the Final Rule states that the phrase ‘frame or receiver’ includes things that are admittedly not yet frames or receivers but that can easily become frames or receivers—in other words: parts… Such a proposition defies logic: ‘a part cannot be both not yet a receiver and a receiver at the same time.'”

The judges are equally scathing when it comes to the ATF’s efforts to regulate kits used by DIY hobbyists.

“Notably, the [privately made firearms] that play a central role in the Final Rule were not unknown at the time of the GCA’s—or, for that matter, its predecessors’— enactment,” they write, citing “The American Tradition of Self-Made Arms,” by Jospeh G.S. Greenlee, an article published this year in St. Mary’s Law Journal. “And in perfect accord with the historic tradition of at-home gunmaking, Congress made it exceedingly clear when enacting the GCA that ‘this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.'”

“ATF’s Final Rule alters this understanding by adding significant requirements for those engaged in private gun-making activities,” they add.

“The Government argues that ATF has historically regulated parts that are not yet frames or receivers as frames or receivers, thus making the Final Rule a valid extension of past agency practice,” the court continues. “Simply because ATF may have acted outside of its clear statutory limits in the past does not mandate a decision in its favor today.”

That’s doesn’t mean the Biden administration and the ATF have no recourse if they want to further restrict firearms or regulate popular gun-related hobbies.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” the court cautions. “But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”

“This is yet another massive victory against ATF and a huge blow to the Biden Administration’s gun control agenda,” commented Cody J. Wisniewski, the Firearms Policy Coalition Action Foundation General Counsel and counsel for plaintiffs. “ATF has no authority to make law, and the Biden Administration cannot circumvent Congress and the rights of the People through federal agency rulemakings–a point the Fifth Circuit just reiterated. We look forward to defending this win and to continuing to deliver additional victories to the People in the future.”

Despite the Fifth Circuit decision, the ATF rule remains in effect while the U.S. Supreme Court decides whether to take up the case, as per an August 8 order by Justice Samuel Alito.

Another Overreach Slapped Down

In a separate but related ruling, another court slapped down the ATF’s effort to redefine pistol braces as shoulder stocks, rendering firearms so equipped as short-barreled rifles under the National Firearms Act (NFA). Braces are intended to help disabled shooters more accurately handle weapons one-handed, but many designs very closely resemble shoulder stocks. That doesn’t matter, noted the court.

“Some form of protest can be expected when constitutional rights are allegedly infringed,” wrote Judge Matthew Kacsmaryk, of the United States District Court for the Northern District of Texas, in acknowledging that many braces are used as stocks by people opposed to stringent firearms regulation. But Kacsmaryk observed that the braces are in “common use” and so enjoy constitutional protection. He added that the proposed rule was not a logical outgrowth of existing law and, in keeping with a recent Fifth Circuit ruling, “must be set aside as unlawful.”

Ultimately, government officials are failing in their efforts to end-run Congress by jamming through restrictive new gun policies as regulatory “reinterpretations” of old statutes. If they want to threaten more people with penalties for owning and using firearms, they’ll have to do so through the hard work of legislating.

‘Like A Machine Gun’ Isn’t A Machine Gun

Ever since Las Vegas, bump stocks have been horrifically demonized. Granted, the Las Vegas shooting was horrific enough that it shouldn’t surprise us that it did.

Soon after, the ATF reversed their decision that they weren’t machine guns.

That reversal came at the direction of then President Donald Trump. He did that, at least in part, to cut the legs out of an effort in Congress that would have gone a lot further than bump stocks and binary triggers. It could have screwed up any trigger modifications for any reason.

Regardless of the reason, though, the ATF actually overstepped their authority, so it’s not surprising that it triggered a lawsuit.

Now, it’s headed to the Supreme Court and Elie Mystal at The Nation has thoughts.

On Friday, the Supreme Court agreed to hear another gun case. That alone should make people hide under their desks at school, because at this point in our bloody republic, every time the Supreme Court decides to entertain the gun lobby, more children are likely to die.

The case involves a challenge to the federal ban on “bump stocks.” Bump stocks are a modification that can be attached to semiautomatic rifles to make them perform as fully automatic weapons. A shooter pulls the trigger to fire the weapon, and the bump stock uses the recoil from that action to pull the trigger again and again, resulting in a near continuous rate of fire, just like a machine gun.

The issue is “like a machine gun” and “machine gun” isn’t the same thing in the least. Especially not in the eyes of the law.

The ATF doesn’t have broad authority to just create law. It has the power to interpret laws passed by Congress, but it can’t just make up law as it goes.

Otherwise, ATF Director Steve Dettelbach could just mandate the assault weapon ban he’s said he wanted.

He can’t do that because there’s nothing in the law that allows for that.

What the ATF did with bump stocks, though, is not much different from a mandated assault weapon ban because the justification used doesn’t actually fit with bump stocks.

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The judge’s concurring opinion in a case that enjoins the bureaucraps of ATF redefining what a ‘receiver’ is:

The Final Rule is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this. I concur in the majority’s opinion holding the Final Rule is unlawful. And I further concur that the matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.

Andrew S. Oldham
U.S. Circuit Judge
VanDerStok v. Garland
November 9, 2023

‘Ghost Guns’ Rule Exceeds ATF Authority, Appeals Court Holds

A federal appeals court Thursday tossed part of a rule targeting build-at-home “ghost guns” in a case advocates brought, holding the regulation exceeds “limits on agency authority in the name of public policy.”

The US Court of Appeals for the Fifth Circuit affirmed in part and vacated in part a lower court ruling that the Bureau of Alcohol, Tobacco, Firearms, and Explosives final “frame or receiver” rule targeting privately made firearms without serial numbers conflicts with the Gun Control Act.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control. But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature,” Judge Kurt D. Engelhardt wrote for the court.

ATF must operate within the statutory text’s limits until Congress acts, the judge said. “The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law,” Engelhardt said.

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Gun rights groups to seek Supreme Court ruling on assault weapons

Gun rights advocacy groups say they intend to ask the U.S. Supreme Court to review the state’s assault weapons ban after a federal appeals court on Friday refused to block enforcement of the law.

In a statement Saturday, the Illinois State Rifle Association said it was not surprised by the 7th Circuit panel’s 2-1 decision, which said plaintiffs in the consolidated cases had not met their burden to show they were likely to win in a constitutional challenge to the law.

“It has always been and is our intent to take our case to the U.S. Supreme Court where we believe we can get a favorable ruling for law-abiding gun owners in Illinois,” the organization said. “We will continue to stand up for the Second amendment and Illinois law-abiding gun owners and against our anti-gun Governor Pritzker and General Assembly.”

In addition, the National Foundation for Gun Rights – which provided attorneys involved in the consolidated case – said it will appeal as well.

“Semi-auto bans like Illinois’ strike right at the heart of the Second Amendment and are completely inconsistent with multiple Supreme Court precedents,” the organization said in a statement. “We will keep fighting and are preparing to appeal this outrageous ruling.”

The 7th Circuit’s decision on Friday left in place the state’s assault weapons ban as well as local bans enacted by Cook County and the cities of Chicago and Naperville.

The state of Illinois and the city of Naperville both enacted their bans in response to a mass shooting last year at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized.

Authorities say the alleged shooter in that incident used a Smith & Wesson M&P 15 semiautomatic rifle and carried three 30-round magazines. That type of gun and magazine are now banned under the state’s assault weapons law.

The majority opinion from the 7th Circuit focused on whether that type of weapon, or others like it, were protected under the Second Amendment.

That opinion, written by Judge Diane Wood and cosigned by Judge Frank Easterbrook, drew a distinction between the types of “bearable” arms commonly used for self-defense and the type of weapons typically reserved only for military uses.

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While this is pretty much nothing more than the 7th poking their finger in the eye of SCOTUS, the sooner this gets to there, so we know what the words of the 2nd amendment mean to the courts, and thus to law, the better.

Seventh Circuit Overturns Injunction Against Illinois “Assault Weapons Ban”, Says AR-15s Aren’t Protected Arms

On the face of it, Friday’s decision by the Seventh Circuit Court of Appeals to overturn an injunction against enforcement of Illinois’ recently enacted ban on “assault weapons” and “large capacity” magazines doesn’t change circumstances on the ground. The three-judge panel that issued today’s decision had previously stayed U.S. District Judge Stephen McGlynn’s injunction while the state appealed, so the law has been in effect throughout litigation.

Still, the 2-1 decision does matter, both because it provides an opportunity for some or all of the plaintiffs to appeal on an emergency basis to the Supreme Court and because it will undoubtedly be cited by other anti-gun judges around the country, including those on the Ninth Circuit panel hearing the appeal of Judge Roger Benitez’s decision striking down California’s ban on “assault weapons.”

I won’t have a chance to do a deep dive into the opinion until this weekend, but one thing immediately stuck out to me as I was giving a quick look-over. The three-judge panel concluded that AR-15s (and presumably semi-automatic rifles in general) are not protected by the Second Amendment because they’re too close to machine guns:

Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no.

We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude). Indeed, the AR-15 is almost the same gun as the M16 machinegun. The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways. 

Both weapons share the same core design, and both rely on the same patented operating system.

If the distinction between semi-automatic and select fire is enough to render modern sporting rifles outside the scope of the Second Amendment, according to the Seventh Circuit, then what does that mean for semi-automatic handguns? Are they too close to machine guns to be protected as well? Note this passage from the majority opinion:

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon.

You can (illegally) attach an auto-sear or a switch to many semi-automatic handguns as well. Is the Seventh Circuit suggesting that the most popular make of handguns, undoubtedly in common use for lawful purposes, is also beyond the Second Amendment’s protection?

It sure sounds like it to me, though the panel didn’t have to address that issue since the state hasn’t attempted to ban the majority of semi-automatic pistols, only a subset it deems to be “assault weapons”. This is actually something that gun control activists have been arguing for a couple of years now, both in civil litigation and in lobbying the Biden administration to reclassify many semi-automatic firearms as machine guns under the National Firearms Act.

If the Seventh Circuit’s twisted logic is adopted or allowed to stand by the Supreme Court, not only would the most popular style of rifle be implicated, but the vast majority of handguns that are in the hands of lawful gun owners across the country as well. The 2-1 decision is bad enough, but the long term implications will be even worse unless and until SCOTUS makes it clear that the Seventh Circuit got it wrong.

Why this is even a question is what’s amazing;
“Unrealized” gains – emphasis on the word unrealized –are not ‘income’ since they haven’t been paid or credited.
This is simply the goobermint exercising power over people. They don’t need our money, they print it at leisure. Taxing keeps the people from using for their own purposes.

The stakes are high as Supreme Court considers this obscure, unconstitutional tax

Word games are usually fun. They become less fun, however, when the government uses them to levy unjust and unconstitutional taxes from the citizenry.

The Supreme Court is set to determine whether Congress , for the purposes of taxation, may classify unrealized capital gains as “income.” Should the justices rule in Moore vs. United States rule against the plaintiffs, the federal government effectively would gain seismic new powers to tax almost any property from which it hopes to extract revenue. This would conflict directly with the Constitution ’s plain text and original meaning.

Charles and Kathline Moore, the case’s plaintiffs, have challenged an obscure provision in 2017’s landmark Tax Cuts and Jobs Act. This provision created a “mandatory repatriation tax” (MRT), which subjects Americans who own stock in foreign companies to a one-time tax on some of those companies’ earnings over the previous 30 years. Congress classified it as an “income” tax.

The Moores in 2006 purchased a 13% share of an Indian company, KisanKraft, that provides farming equipment to impoverished regions. Since then, they never have received any dividend or other form of compensation or profit from this investment. They have seen no “income.” Nonetheless, they found themselves subjected to the MRT.

“The Moores were … taxed as if KisanKraft … had … distributed to the Moores a dividend worth 13% of KisanKraft’s total earnings since 2006,” the Cato Institute explains in its amicus brief.

Beginning with dictionary definitions, the government’s arguments wilt. “Income has a plain and longstanding meaning: for something to be ‘in-come,’ it must, in some way, ‘come in,’” as the Chamber of Commerce writes. Moreover, early-1900s legal authorities believed “income” necessarily implied realization of gains. Put differently, “income” by nature requires the taxable money to become separated from the capital asset; an asset’s increased value cannot alone suffice. This interpretation corresponds with 19th-century caselaw, discussions surrounding the 16th Amendment’s ratification, contemporaneous state statutes, the Revenue Act of 1913 (which instituted the newly constitutional income tax), and subsequent Supreme Court precedent.

The Framers worried much about abusive federal taxation, and the Constitution originally disallowed Congress to institute any direct tax not apportioned based on state population. The 16th Amendment (ratified in 1913) exempted income taxes from this restriction. Far from a blanket mandate, this amendment’s drafters and ratifiers intended it as a defined carveout to authorize a specific sort of tax.

Only if the Supreme Court adopts the government’s bastardized definition of “income” can the non-apportioned MRT stand.

Further, the MRT required U.S. shareholders to pay tax on foreign companies’ earnings dating back to 1987. Demanded a percentage of 30-year-old earnings (which, to be clear, are better labeled simply as “private property”) resembles more a property tax, taking, or a confiscation than a traditional tax.

Indulging congressional whim by expanding this definition radically (as the U.S. Court of Appeals for the Ninth Circuit did when it ruled against the Moores) greatly increases the federal government’s de facto taxation powers. “Without the guardrails of a realization component, the federal government has unfettered latitude to redefine ‘income’ and redraw the boundaries of its power to tax without apportionment,” the outnumbered Ninth Circuit judge Patrick Bumatay argued in dissent.

Indeed, prominent politicians such as President Joe Biden already have advocated an unrealized capital gains tax; the president’s latest budget proposal featured one on wealth exceeding $100 million. A mistaken Supreme Court decision would feed this effort and far worse ones.

“The powers delegated by the proposed Constitution to the federal government are few and defined,” James Madison stated in Federalist No. 45.
However, if the Supreme Court in Moore rules that Congress — simply by adopting erroneous interpretations of legally settled terminology — can arrogate to itself vast authorities, an important constitutional guardrail against tyranny would effectively have no force.

SCOTUS Grants Cert to Bump Stock Case

The Supreme Court will decide whether the Trump administration’s ban on bump stocks, implemented by the ATF in 2018 after the Route 91 music festival shootings in Las Vegas, was a proper exercise of agency authority or an overreach on the part of the administration. On Friday the Court granted cert in a case known as Garland v. Cargill; one of several cases that have been bouncing around the lower courts since the ban was first put in place.

The Court’s granting of the case wasn’t exactly a surprise, for a couple of reasons. The Solicitor General had sought Supreme Court review, but there are also splits in the federal appellate courts over the legality of the ban. The Fifth Circuit has ruled the bump stock ban was improperly put into effect, while the D.C. Circuit, Sixth Circuit, and Tenth Circuit have all allowed the ban to remain in effect.

The question before the Court is whether a bump stock can be considered a “machine gun” under the statutory definition provided by the National Firearms Act; “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”

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Supreme Court Roundup: Not all History is Created Equal

In a previous post, I wrote about the attempt by Merrick Garland’s Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling “text and history” interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass’n v. Bruen. Rahimi is the case challenging the facial constitutionality of 18 U.S.C § 922(g)(8), a federal statute that disarms any individual subject to a state domestic violence restraining order (DVRO). In that post, I explained how the Government is contending, contrary to Bruen, that the established rule is that “Congress may disarm persons who are not ‘law-abiding, responsible citizens.'” That statement is not just incorrect, but a serious distortion of what Heller actually said.

As it turns out, the Government’s recently filed reply brief contains several other important errors about the fundamental principles to be applied when assessing historical analogue laws, which are central to Bruen‘s methodology.  Let’s start with an easy one.  The Government takes Rahimi to task for allegedly asserting that Bruen limits courts to historical evidence from “near the time of ratification.” Here’s what Rahimi’s brief actually said, after discussing attempts by some courts to boost some dicta in Heller to the level of substantive constitutional law:

[T]he original meaning of the Second Amendment must be determined exclusively using the text and the historical tradition of firearm regulations adopted near the time of ratification—not with assumptions or dicta. 

That statement by Rahimi was contrasting the use of actual historical traditions to determine the meaning of the Second Amendment, as opposed to twenty-first century dicta, or assumptions by lower courts regarding what those dicta meant. It was not an attempt to fine tune the period of time with precision.

Yet Rahimi is correct that the time around the adoption of the Bill of Rights must be the principal period to determine the original public meaning of its provisions.  Bruen quoted Heller to the effect that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” before noting that “The Second Amendment was adopted in 1791….”

The Bruen opinion also quoted approvingly a dissent by then-Judge Kavanaugh: “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” The six-person Bruen majority also relied on a dissenting statement by Chief Justice Roberts, in Sprint Communications v. APCC Services (2008), that “The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787].” The same is true of the Bill of Rights, adopted in 1791.

The Government claims in its brief that “the Court has consulted post-ratification evidence—extending ‘through the end of the 19th century’—’to determine the public understanding of’ the Amendment.” But as Bruen notes, another case made clear that this evidence was reviewed “only after surveying what [the Court] regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.” Bruen continues, “In other words, this 19th-century evidence was ‘treated as mere confirmation of what the Court thought had already been established.'” See also Justice Barrett’s concurrence in Bruen, quoting Espinoza v. Montana Dept. of Revenue (2020) (a practice that “arose in the second half of the 19th century … cannot by itself establish an early American tradition” informing our understanding of the First Amendment); Mark W. Smith, Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868, Harvard Journal of Law & Public Policy Per Curiam (Fall 2022).

So Rahimi is right.  A court must look principally to the Founding era to determine the meaning of the Second Amendment.  It can look at later evidence only for confirmation, not to change the original understanding.

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Texas Granted Temp Restraining Order Against Biden Admin Preventing Removal Of Razor Wire At Border.

Judge Alia Moses of the U.S. District Court for the Western District of Texas ordered the Biden Administration to stop cutting the razor wire installed on the Texas border to deter illegal migrant crossings.

The temporary restraining order is in place “until the parties have an opportunity to present evidence at a preliminary injunction hearing before the Court.”

The order stops the Biden administration from (property refers to the razor wires):

  • Removing the property from its present location for any reason other than to provide or obtain emergency medical aid
  • Concealing the property in any way
  • Offering the property for sale, rent, or use to any person, business, or entity
  • Selling or otherwise transferring the property in whole or in part
  • Encumbering the property in any way
  • Scrapping the property
  • Disposing of the property in any way
  • Dissembling, degrading, tampering with, or transforming the property in any way for any reason other than to provide or obtain emergency medical
  • Failing to take all steps necessary to protect the property against damage or loss of any kind

Moses granted the restraining order for three reasons.

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New York City Gun Restrictions Ruled Unconstitutional

Local laws allowing New York City officials to subjectively deny gun possession permits violate the Second Amendment, a federal judge ruled Tuesday.

U.S. District Judge John P. Cronan struck down portions of a New York City law governing when licensing officials may deny permits to own rifles, shotguns, and handguns. Cronan determined that allowing the City to deny licenses to applicants who are “not of good moral character” or when they feel “other good cause” exists allows too much discretion and does not fit with how America historically regulated guns. He found that makes them unconstitutional under the Supreme Court’s latest Second Amendment test.

“This case is not about the ability of a state or municipality to impose appropriate and constitutionally valid regulations governing the issuance of firearm licenses and permits,” Judge Cronan wrote in Srour v. NYC. “The constitutional infirmities identified herein lie not in the City’s decision to impose requirements for the possession of handguns, rifles, and shotguns. Rather, the provisions fail to pass constitutional muster because of the magnitude of discretion afforded to City officials in denying an individual their constitutional right to keep and bear firearms, and because of Defendants’ failure to show that such unabridged discretion has any grounding in our Nation’s historical tradition of firearm regulation.”

The decision, which is likely to be appealed by city officials, may result in more residents of the nation’s largest city being able to legally arm themselves. It also represents the continuing fallout from a landmark gun case ruling handed down by the Supreme Court last year.

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Why Biden Wants SCOTUS To Rule Agains Rahimi

I’m going to start this off by saying what we almost have to say when talking about the Rahimi case, that the plaintiff in this case is not a good person. By all indications, he’s a terrible human being and not someone I’d want as part of my life.

But, our rights don’t exist only for those we approve of. They have to be protected for everyone, regardless of whether they’re a good person or not.

And Zachey Rahimi is such a person.

Now, his case is going to the Supreme Court, and a lot of people are blatantly misrepresenting it. They’re saying it’s about keeping domestic abusers disarmed, all while ignoring that the case doesn’t try to take on laws that rule those convicted of such offenses are prohibited from owning guns.

Because Rahimi wasn’t convicted of any such thing when he was charged with illegally possessing a gun. He just had a restraining order against him.

Over at The Federalist, John Lott gets into the real reason the Biden administration is fighting this so hard.

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