Gun rights group applauds after federal appeals court deals blow to NY concealed carry law
Gun Owners of America praised the Second Circuit decision but said the court should have thrown out all of the New York gun control law

Gun rights activists cheered Friday after a federal appeals court struck down parts of New York’s expansive concealed carry law.

The U.S. Court of Appeals for the Second Circuit blocked three provisions of New York’s “Concealed Carry Improvement Act” (CCIA), a law Democrats passed last year in response to a Supreme Court ruling that declared the state’s previous concealed carry permitting requirements unconstitutional. In doing so, the appeals court allowed other parts of the law to go into effect.

In a 261-page ruling, the three-judge panel struck down a requirement that gun owners disclose their social media accounts for review when applying for a concealed carry permit. The court also blocked restrictions on carrying firearms on private property that is accessible to the public, as well as a restriction on concealed carry in houses of worship.

However, controversial parts of the law remain intact, including a requirement that applicants demonstrate good moral character and disclose household and family members on a permit application. New York will also be allowed to enforce bans on concealed carry in so-called “sensitive places,” including theaters, bars, public parks and other spaces.

Gun rights activists praised the court’s decision but said the judges failed to faithfully apply the Supreme Court’s precedent, arguing the entire law should be thrown out.

“Governor [Kathy] Hochul and her cabal in Albany never seem to get the message, and in turn, GOA is proud to have played a major role in rebuking her unconstitutional law,” Gun Owners of America (GOA) Senior Vice President Erich Pratt said in a statement.

“Nevertheless, this was not a total victory, and we will continue the fight until this entire law is sent to the bowels of history where it belongs,” Pratt added.

Friday’s decision is the first federal court ruling to consider potential limits on where licensed gun owners can carry concealed firearms since the Supreme Court expanded gun rights in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). Justice Clarence Thomas wrote in that opinion for the court that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

The consequences of the Supreme Court’s ruling have been far-reaching, upending gun regulations in several states.

The circuit court judges acknowledged their ruling won’t be the final word on New York’s gun control law as the case winds its way through lower courts.


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The FBI Stole Millions From Individuals Who Were Not Charged With a Crime – the Victims Are Suing

An FBI raid on private safe deposit boxes has triggered a significant legal battle over civil asset forfeiture and the lengths to which federal authorities can use the practice, which has often been referred to as “Policing for Profit.”

The outcome of the court proceedings could turn this into a landmark case that helps to further define the parameters in which federal law enforcement can use the controversial procedure.

FBI agents cataloged Cartier bracelets, Rolex watches and stacks of cash as they combed through safe deposit boxes seized from a Beverly Hills business accused of money laundering. But the owners of many of those boxes were not accused of any crimes.

After hearing arguments from both sides Thursday, a panel of judges from the 9th Circuit Court of Appeals will decide whether the sweeping raid violated customers’ Fourth Amendment rights.

“I think the public sees this and recognizes that this is just a total abuse of people’s constitutional rights,” Institute for Justice senior attorney Rob Johnson told Fox News, adding that he felt “extremely optimistic” about the panel’s forthcoming decision.

On March 22, 2021, the FBI seized around 1,400 safe deposit boxes from U.S. Private Vaults, a Beverly Hills–based company that, according to court documents, was regularly used by “unsavory characters to store criminal proceeds.”

Agents took about $86 million in cash from the boxes, as well as a trove of jewelry, gold bars and coins, silver and other valuables. In May of that year, the FBI “commenced administrative forfeiture proceedings” against an unspecified number of the boxes, according to court documents.

The procedure the FBI used to seize this property is known as civil asset forfeiture, which empowers local, state, and federal governments to take a citizen’s property if they suspect that it has been used to commit a crime. In many states and at the federal level, one does not have to be convicted – or even charged – with a crime for officers to seize the property.

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Polymer80’s Injunction Stayed for Supreme Court

The Fifth Circuit Court of Appeals has stayed Polymer80’s injunction issued against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) frames and receiver rule (ATF final rule 2021R-05F) in Polymer80 v. Garland until the Supreme Court of The United States (SCOTUS) can decide whether to grant a writ of certiorari in VanDerStok v. Garland.

Polymer80 sued the ATF in a Texas federal court over the ATF rule against what the Biden administration calls “ghost guns” and the ATF refers to as privately manufactured firearms (PMF). The company is the country’s biggest seller of unserialized 80% frames and accounts for the vast majority of the market. After the injunction was issued, it returned to selling complete kits, including the frame, jigs, and drill bits.

The Fifth Circuit’s stay on the injunction was expected after SCOTUS stepped in and stayed injunctions for other companies, such as 80 Percent Arms and Defense Distributed in VanDerStok v. Garland. The stay allowed the ATF to enact the frames rule. The stay will last until a writ of cert is denied, or SCOTUS issues a judgment.

“IT IS ORDERED that Appellants’ opposed motion to stay the injunction pending appeal is GRANTED. In accordance with the stay granted by the Supreme Court in Garland v. VanDerStok, if a petition for a writ of certiorari is not timely sought in VanDerStok, this stay shall terminate automatically as of the date on which the petition was due; and if a petition for a writ of certiorari is timely sought in VanDerStok, this stay shall remain in effect until either (a) the date on which the Supreme Court denies certiorari, at which time the Supreme Court’s stay will terminate automatically, or (b) if the Supreme Court grants certiorari, the date on which the Supreme Court issues its judgment,” the order reads.

In the VanDerStok case, Justice Amy Coney Barrett and Chief Justice John Roberts joined the progressive members of the Supreme Court in issuing the stay until the government files a writ of certiorari with the court. The other Republican-appointed judges would have let the injunction stand until the final decision.

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Federal Judge Halts Enforcement of New Mexico Governor’s Ban on Carry in Parks

IT IS THEREFORE ORDERED that Plaintiff’s Renewed Motion for Preliminary Injunction under the Governor’s Most Recent Orders (Doc. 10) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Court preliminarily enjoins only the limited portion of the Second Amended Public Health Order (Doc. 10, Ex. 1, at 2), issued by the New Mexico Department of Health Secretary Patrick Allen, which restricts the carrying of firearms in public Case 1:23-cv-00781-KWR-LF Document 19 Filed 12/05/23 Page 19 of 2020 parks in Albuquerque and Bernalillo County, New Mexico. No other portion of the public health order is enjoined.

Another gambit by the anti-gun crowd. These nuns bought some shares of S&W and Ruger too

Activist Nuns, With Stake in Smith & Wesson, Sue Gun Maker Over AR-15 Rifles
Groups argue the company’s leaders put shareholders at risk by making a popular gun often used in mass shootings

A group of activist nuns filed an unusual shareholder lawsuit to pressure gun maker Smith & Wesson to drastically change the way it markets, makes and sells its popular version of the AR-15 rifle.
The so-called shareholder derivative action, which the nuns filed in Nevada state court Tuesday against publicly traded Smith & Wesson, alleges that company leaders are putting shareholders at risk. They argue the leaders are exposing the company to liability by the way they have made and sold the rifle, which has been used in several mass shootings in recent years.
Smith & Wesson didn’t immediately respond to a request for comment about the suit.
This type of lawsuit is brought by a group of shareholders against the company’s leadership claiming they have breached their duties. Such suits are common with publicly traded corporations, but lawyers said it appeared to be the first time one has been brought against gun makers over the manufacture and marketing of guns.
The legal action by the nuns, who aren’t major shareholders and collectively own about 1,000 shares of the company, comes amid a flurry of lawsuits against gun companies that were spurred by a $73 million settlement between the families of those killed in the Sandy Hook Elementary School massacre and Remington in a suit over its marketing practices.
Though the 1,000 shares is a small portion of Smith & Wesson shares, it allows the group to raise governance questions as shareholders.
Lawrence Keane, senior vice president and general counsel for the National Shooting Sports Foundation, which represents gun makers, called the lawsuit frivolous.
“This same group has been filing shareholder proposals and losing so I guess they’re trying a new tactic,” Keane said.
Jeffrey Norton, a partner with the New York law firm of Newman Ferrara and the lead attorney for the nuns on the case, said that the approach has worked in other industries.
“The theory we are pursuing has been successful in a lot of different situations, but it’s novel in pursuing it with the gun industry,” Norton said.
Joe Kavan, a lawyer who represents firearms companies, said it was an unusual legal tactic and the case will be watched closely.
“It will get a great deal of publicity initially and if they get an activist judge it may survive summary judgment,” said Kavan. “But with most judges I can’t see how it will survive. It’s just too speculative.”
The nun groups—the Adrian Dominican Sisters in Adrian, Mich.; the Sisters of Bon Secours USA, based in Marriottsville, Md.; the Sisters of St. Francis of Philadelphia, based in Aston, Pa.; and the Sisters of the Holy Names of Jesus & Mary, U.S.-Ontario Province, based in Marylhurst, Ore.—filed the 47-page suit in Clark County District Court in Las Vegas.

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This is correct. And this is a good moment for a quick teaching point. If you look at the Founding era dictionaries SCOTUS in Heller used to define the 2A terms, and then you look at the definition of “to infringe” in those same dictionaries… the phrase means “to hinder or destroy.”

Given that definition of “to infringe” from Samuel Johnson/Noah Webster (both founding era lexicographers, i.e., dictionary makers), ask yourself this….. does restricting or banning the ability to acquire an “arm” constitute something that would “hinder” the “right to keep and bear arms”?

Obviously yes because any restrictions on the ability to ACQUIRE AN ARM necessarily HINDERS our ability to keep and bear arms. Thus, restrictions, bans or limitations on the right to acquire arms (ghost gun rules, home-made gun rules, waiting periods, etc.), are an hindrance and thus constitute an INFRINGEMENT.

Fifth Circuit Denies ATF’s Request For Stay on the Districts Courts FRT Injunction

After what seems like a year of defeats for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the courts, the ATF keeps losing. This time, it is forced reset triggers (FRT).

The case, National Association for Gun Rights (NAGR) v. Merrick Garland, was filed by Rare Breed Triggers and NAGR in a Texas Federal District Court challenging the ATF’s opinion that forced reset triggers such as the Rare Breed FRT-15 are machine guns. The ATF has been sending out letters to and visiting owners of the triggers demanding that the users turn over the items to the ATF or face possible charges for violating the National Firearms Act of 1934. At least three people have been charged with NFA violations for having FRTs. A conviction for violating the NFA could carry a penalty of up to ten years of imprisonment and a $250,000 fine.

Federal District Court Judge Reed O’Connor ruled in early October that the plaintiffs had proven that they were likely to succeed on the merits of the case. Judge O’Connor issued a preliminary injunction (PI) barring the ATF from taking enforcement actions over forced reset triggers. The ATF appealed to the Fifth Circuit Court of Appeals and asked the court to stay the lower court’s decision.

The Fifth Circuit has now reviewed the ATF’s motion and denied the requested stay, meaning the injunction will remain in place for now, protecting the public from the ATF taking enforcement actions over Rare Breed’s FRT-15. The Circuit Court believed the defendants didn’t meet the requirements for a stay on the injunction.

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CRPA Files Suit Against LA Sheriff’s Department To Enforce CCW Policies

Moments ago, CRPA filed suit against the Los Angeles County Sheriff’s office challenging the “constitutionality of (its) carry permit issuance policies and laws that make it extremely difficult, if not outright impossible or impermissibly time consuming” for such a permit to be obtained.

Ever since the announcement of the Bruen decision, CRPA has fought to bring CCW application and issuance processes in line with the new standard.  Still, certain jurisdictions drag their feet and continue to create unnecessary delays, add onerous fees, and implement other bureaucratic hurdles to stall CCW issuance (as evidenced by the responses to our poll late last week).

Today’s filing is the next step in this ongoing effort. Joining us in this lawsuit are our strategic partners at Second Amendment FoundationGun Owners of America, and Gun Owners of California. You can read the filing in its entirety by clicking here.

“CRPA has let it be known that across all of California’s 58 counties, we will be vigilant and relentless in our efforts to ensure that post-Bruen CCW policies and procedures are in place and followed,” stated CRPA President & General Counsel Chuck Michel. “This is all a part of the CRPA’s CCW Reckoning project.  Today’s lawsuit could easily have been avoided if the Constitution was observed and the Bruen decision was followed.”

ATF Violates Agreed Upon Timeline By Filing For An Appeal In Pistol Brace Case

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has filed a notice of appeal in a case challenging its rule against pistol braces (FINAL RULE 2021R-08F). Gun Owners of America (GOA) filed a motion for summary judgment a day later.

The case, Texas v. ATF, is a joint effort between GOA, Gun Owners Foundation (GOF), and the state of Texas to take down the ATF’s pistol brace rule.

Just a day before the ATF rule was due to go into effect, Federal District Court Judge Drew Tipton for the Southern District of Texas issued a preliminary injunction (PI) for all GOA members, barring the ATF from taking enforcement actions against them. This ruling came on the heels of the Mock v. Garland Fifth Circuit Court of Appeals decision that blocked enforcement of the rule on Firearms Policy Coalition (FPC) members. Second Amendment Foundation (SAF) also got a preliminary injunction against the rule before the rule’s effective date.

“For these reasons, the Court GRANTS IN PART Plaintiffs’ Motion for Preliminary Injunction, (Dkt. No. 16). Defendants are ENJOINED from enforcing the Final Rule against the private Plaintiffs in this case, including its current members and their resident family members, and individuals employed directly by the State of Texas or its agencies. The preliminary injunction will remain in effect pending resolution of the expedited appeal in Mock v. Garland,” the order reads.

Since then, the Fifth Circuit Court of Appeals has expanded the injunction to cover everyone in the nation, effectively killing the ATF’s rule. Before that happened, according to GOA, all parties agreed to the timeline in the Texas v. ATF case.

It is unlikely that the Fifth Circuit of Appeals would overturn Judge Tipton’s decision. The Fifth Circuit is openly hostile to the ATF’s use of the rule-making process.

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BELLEVUE, WA – A federal district court judge in West Virginia has ruled that a federal law prohibiting handgun sales to 18-20-year-olds is “facially unconstitutional,” and granted a summary judgment in a case brought by the Second Amendment Foundation.

In a 40-page decision, U.S. District Chief Judge Thomas S. Kleeh with the Northern District of West Virginia wrote, “(B)ecause Plaintiffs’ conduct – the purchase of handguns – ‘fall[s] [within] the Second Amendment’s ‘unqualified command’ and the challenged statutes and regulations are not ‘consistent with the Nation’s historic tradition of firearm regulation,’ the Court FINDS 18 U.S.C. §§ 922(b)(1) and (c)(1) facially unconstitutional and as applied to Plaintiffs.”

He enjoined the defendants—in this case the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Director Steven Dettelbach and Attorney General Merrick Garland—from enforcing the provisions “against Plaintiffs and otherwise-qualified 18-to-20-year-olds.”

“This is a huge victory for Second Amendment rights, especially for young adults,” said SAF Executive Director Adam Kraut. “The Biden Justice Department argued that people in this age group were not adults, which was patently ludicrous. The government simply could not defend the constitutionality of the handgun prohibition, and Judge Kleeh’s ruling makes that clear.”

“There was never any historical evidence supporting this arbitrary ban on the purchase and ownership of handguns by young adults,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “As we maintained all along, history goes in the opposite direction. At that age historically, young adults were considered mature enough to serve in the militia, the military and take on other responsibilities. We’re delighted with the judge’s ruling.”

The case was filed in September 2022. Joining SAF were the West Virginia Citizens Defense League and individual citizens Steven Robert Brown and Benjamin Weekly. They were represented by attorneys John H. Bryan of Union, W.Va., and SAF’s Kraut, who is a practicing attorney based in Westtown, Pa.

Laws Requiring Permission to Obtain Guns Look Vulnerable

According to a landmark 2022 Supreme Court decision, the Second Amendment constrains the requirements that states may impose on residents who want to carry guns in public for self-defense. It stands to reason that the same is true of the steps that people must take to acquire guns in the first place.

That is essentially what the U.S. Court of Appeals for the 4th Circuit concluded last week, when it ruled that Maryland’s handgun licensing system is inconsistent with the right to keep and bear arms. The case exemplifies a new front in constitutional challenges to gun control laws under the Second Amendment test that the Supreme Court established last year.

To pass that test, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” But Maryland’s law, which requires would-be handgun owners to complete a process that can take up to 30 days, bears little resemblance to regulations enacted in the 18th or 19th century.

Maryland is one of 14 states that require background checks for all firearm purchases, whether or not the seller is a federally licensed dealer. Since 2013, Maryland has imposed an additional requirement on handgun buyers: They must first obtain a “handgun qualification license,” which entails completing at least four hours of firearm training and undergoing a seemingly redundant “investigation” aimed at screening out people who are legally disqualified from owning guns.

Maryland argued that its law fits a tradition of disarming “dangerous” individuals, such as people with felony records, illegal drug users and people convicted of domestic violence misdemeanors. But even assuming those categories of “prohibited persons” are validated by long-standing practice, 4th Circuit Judge Julius Richardson said, Maryland’s statute goes further by “preemptively disarming every person until they can each prove that they are not dangerous,” which “burdens a far broader swath of people.”

Writing in dissent, Judge Barbara Milano Keenan highlighted the Supreme Court’s distinction between “may issue” laws like New York’s, which required carry-permit applicants to demonstrate “proper cause,” and “shall issue” laws, which make permits available to all applicants who meet “objective criteria.” Maryland’s licensing system for handgun buyers falls into the latter category, Keenan said, which suggests the Court would be inclined to uphold it.

While the Supreme Court did indicate that “shall issue” laws could be consistent with the Second Amendment, it also noted that “any permitting scheme can be put toward abusive ends.” It therefore did not rule out “constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

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Second Amendment Roundup: Concessions by the Government in the Rahimi Oral Argument
Misdemeanants don’t fall within the “not law-abiding” category.

In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful.  Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous.  And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.

Recall that under N.Y. State Rifle & Pistol Ass’n v. Bruen, a person who is among “the people” has Second Amendment rights, and conduct covered by the plain text of that Amendment is presumptively protected unless the state can satisfy its burden (yes, it’s the government’s burden) to demonstrate that the current gun control regulation is similar to valid historical analogue laws. In Rahimi, the issue is whether any Founding-era analogue laws exist to justify the federal gun ban against persons under a domestic violence restraining order (DVRO).

To uphold the ban, the government relies on laws that punished affrays, including the brandishing of weapons to terrify others, and laws that required persons who did so to find sureties to keep the peace.  Such laws are not “historical twins” to today’s DVRO laws but are argued to be close enough.

A significant concession arising in the arguments would have jumped out at any member of the criminal defense bar, although it was not on the exact issue before the Court. The United States had argued in its briefs that persons who are not “law-abiding, responsible citizens” may be disarmed. Solicitor General Elizabeth Prelogar began her argument by saying that not being “law-abiding” means having “committed serious crimes defined by the felony-level punishment that can attach to those crimes.”  Not being “responsible” “applies to those whose possession of firearms would pose an unusual danger.”

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Police in This Blue State Will Continue Enforcing ‘Draconian’ Handgun Law Ruled Unconstitutional by Court

Maryland State Police will continue enforcing the state’s handgun law for now, despite a federal appeals court ruling that the licensing requirement is unconstitutional.

“At this time, the HQL law remains in effect and there are no immediate changes in the process to purchase a firearm in Maryland,” the department wrote in an agency-wide advisory after last week’s ruling.

Maryland’s Handgun Qualification License (HQL) requires applicants to submit fingerprints for a background check, take a four-hour firearm safety course with a live fire component, and wait up to 30 days for approval before purchasing a handgun, which then requires another application and seven-day waiting period.

Last Tuesday, a three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 that the law is overly “burdensome” and cannot stand under the 2022 landmark Supreme Court decision that a firearm regulation is unconstitutional unless the government can prove it is consistent with the nation’s historical tradition.

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A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit
Courts are “not insensitive to domestic violence” but are “sensitive to the constitutional rights of the accused.

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I’ve voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett’s question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let’s start with a premise: Rahimi was a faithful application of Bruen. Efforts to “clarify” Bruen are really an attempt to rewrite the precedent. I don’t think anyone seriously doubts this premise. Now the reason why the Court may “clarify” Bruen is because certain members of the Court don’t like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that’s where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn’t get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can’t just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier. Here is a snippet from the introduction:

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities.

The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished.

Likewise, a violation of a person’s Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible. Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self‐incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder.

The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non‐excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial.

The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be detained indefinitely without proper procedures.

Liberty’s harm to society takes many forms—not just from the exercise of the right to keep and bear arms. These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

Not much has changed since I wrote these words more than a decade ago. The Supreme Court, often with lopsided majorities, protects the constitutional rights of very dangerous people. Yet when it comes to the Second Amendment, it’s as if all of these precedents vanish.

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Huge: Fourth Circuit Declares Maryland’s ‘Handgun Qualification License’ Unconstitutional

A decade ago, Maryland lawmakers imposed a new burden on residents hoping to exercise their Second Amendment right to keep and bear a handgun by creating a “Handgun Qualification License.” Before any would-be gun owner can take possession of a pistol, they must first jump through several state-mandated hoops, from submitting fingerprints as part of a background check investigation to taking a four-hour-long “firearms safety training course” that includes the firing of at least one live round of ammunition. After waiting 30 days or more for approval, the would-be gun owner then has to go through another background check and an arbitrary seven-day waiting period before they can take possession of their pistol, though they must run another bureaucratic gauntlet before they’re actually allowed to carry the sidearm in self-defense.

On Monday a three-judge panel of the Fourth Circuit Court of Appeals concluded what Second Amendment activists have been arguing for years; the Handgun Qualification License is an unconstitutional barrier to exercising a fundamental right. In a 2-1 decision, the majority declared that the “plaintiffs challenge must succeed”; reversing a district court opinion and delivering an important victory to the Firearms Policy Coalition, Maryland Shall Issue, the Independence Institute, Atlantic Guns, and several individual residents who’d sued over the permit requirement.

The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one.

Under the Supreme Court’s new burden-shifting test for these claims, Maryland’s law thus fails, and we must enjoin its enforcement. So we reverse the district court’s contrary decision.

Applying the Supreme Court’s “history, text, and tradition” test to the Maryland statute, the Fourth Circuit panel determined that there are no historical analogues to the modern-day gun control law. Importantly, the panel ruled that while the HQL doesn’t directly deal with either keeping or bearing arms, but rather their acquisition, the gun control law still directly implicates and imposes on the Second Amendment rights of residents.

The answer is not complicated. If you do not already own a handgun, then the only way to “keep” or “bear” one is to get one, either through sale, rental, or gift. And the challenged law cuts off all three avenues—at least, for those who do not comply with its terms.

That brings us to the next wrinkle: The challenged law does not permanently prohibit Plaintiffs from acquiring or carrying handguns. Instead, it imposes certain requirements that they must meet before they can obtain a handgun. And those requirements rely on “objective” criteria, which Plaintiffs admit that they can satisfy. Once they do so, the law commands that the state “shall issue” them handgun-qualification licenses.

But even though Maryland’s law does not prohibit Plaintiffs from owning handguns at some time in the future, it still prohibits them from owning handguns now. In order to get a handgun, Plaintiffs still have to follow all of the law’s steps. And, although they will be able to complete each one, it is impossible to do so right away.

Plaintiffs can’t receive a license to legally acquire a handgun until the state reviews their applications, which can take up to thirty days. So, no matter what Plaintiffs do, there will be a period of up to thirty days where their ability to get a handgun is completely out of their control.

In other words, though it does not permanently bar Plaintiffs from owning handguns, the challenged law deprives them of that ability until their application is approved, no matter what they do.

As the panel reasoned, there’s nothing in the language of the text of the Second Amendment or the Bruen decision that suggests the amendment protects “only against laws that permanently deprive people of the ability to keep and bear arms.” A right delayed is a right denied, and the “temporary deprivation that Plaintiffs allege is a facially plausible Second Amendment violation.”

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Post-Bruen, just as what happened after Heller, many federal courts are trying to stymie the obvious results of the Supreme Court’s Second Amendment decisions. A continued effort by Second Amendment advocates will be required to ensure proper enforcement of these landmark rulings.

Seventh Circuit Strains to Uphold Illinois’ Gun and Magazine Ban

At this point, gun owners and other productive Americans don’t anticipate much good news out of Chicago. On November 3, the U.S. Court of Appeals for the Seventh Circuit lived up to those expectations when it upheld Illinois’ ban on commonly-owned semi-automatic firearms in Herrera v. Raoul.

In early 2023, Illinois enacted the ill-titled Protect Illinois Communities Act. That legislation, among its numerous anti-gun provisions, prohibits commonly-owned semi-automatic firearms such as the AR-15 and ammunition magazines with a capacity greater than 10 rounds. Current owners of prohibited guns are only permitted to retain their property if they register their firearms with the government. The plaintiffs in the present case challenged Illinois’ statute on Second Amendment grounds.

This may have seemed like an open-and-shut case to some who follow Second Amendment jurisprudence.

In 2008, the U.S. Supreme Court ruled that the Second Amendment protects ownership of arms “in common use” for lawful purposes. In case there was any confusion about what “arms” that might entail, Heller decision author Justice Antonin Scalia cleared that up in 2015 when he signed onto a dissent from the denial of certiorari in Friedman v. Highland Park. In the dissent, Justice Clarence Thomas explained,

Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

Commonly-owned semi-automatic firearms have only become more common since Heller and the Highland Park case. In 2022, the National Shooting Sports Foundation (the firearm industry trade association) estimated that since 1990 more than 24 million modern sporting rifles (their term for commonly-owned semi-automatic rifles) have entered circulation in the U.S. A 2023 Washington Post poll found that “6 percent of Americans own an AR-15, about 1 in 20.” Given compelling research finding that polling systematically undercounts the number of gun owners in the U.S., that number may be far higher.

The standard capacity firearm magazines Illinois prohibits are not just common, but ubiquitous. Many of the most popular handguns and rifles in America are designed to use magazines with a capacity greater than 10 rounds. Americans own hundreds of millions of firearm magazines with a capacity greater than ten rounds.

If Heller weren’t enough, in 2022 the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. As the dissent in the present case noted, “’in common use’ is a sufficient condition for finding arms protected under the history and tradition test in Bruen.” However, for a firearm restriction to be permissible it must meet that further burden.

Specifically, the Bruen opinion explained,

[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Given that the concept of an “assault weapons” ban targeting semi-automatic long guns came about in the 1980s only after gun control advocates failed to ban their preferred target (handguns), such prohibitions have no place in the American tradition.

To uphold the Illinois ban, the Seventh Circuit set about contending that the AR-15 falls outside the definition of “bearable arms” discussed and protected in Heller. According to the Judge Diane Wood,

the definition of “bearable Arms” extends only to weapons in common use for a lawful purpose. That lawful purpose, as we have said several times, is at its core the right to individual self-defense.

Wood contended that firearms that are prominent in military purposes fall outside this definition and are therefore not arms covered by the Second Amendment. Wood then claimed that the AR-15, despite its solely semi-automatic function, resembles the fully-automatic military M16 sufficiently for it to also fall outside the Second Amendment’s protection.

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There’s a Federal court case in Texas where a man filed a Form1 to make a MG and ATF (of course) denied it. This keeps up and SCOTUS just may get involved, and I’m not the only one thinking that, at the very least, the 1986 ban on new ‘transferable’ guns may get the axe under the “Bruen test” .

Attorney with local ties takes gun rights case to federal appeals court

An attorney and Nixa resident with ties to the area has a case related to gun rights making its way through the federal appeals court system after it was rejected by the U.S. District Court, Western District of Missouri, headquartered in Springfield.

The case has been appealed and will now move to the Eighth District Circuit Court of Appeals, primarily based in St. Louis.

Mark Blount, representing himself, is arguing against the National Firearms Act prohibition on possession of ordinary military weapons manufactured after 1986, with the defendants listed as the United States of America; the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Merrick Garland acting as Attorney General of the United States; and Bernard G. Hansen, acting as Special Agent in Charge of the ATF Kansas City Field Division.

The case background describes Blount’s complaint regarding the National Firearms Act, the Gun Control Act and the Firearms Owners Protection Act of 1986, all considered by Blount as unconstitutional, based on his argument the laws collectively infringe upon and deprive him of “ancient, inalienable, private, individual, absolute, ancestral sovereign common law right to keep and bear arms, retained by ancestors, the Founders of this country, and enumerated in the Second Amendment to the U.S. Constitution, by prohibiting Plaintiff from possessing machine guns of all descriptions manufactured after 1986.”

Blount specifically complains his constitutional rights are being infringed upon because, according to court documents, he “plans on purchasing an M-16 rifle, M-4 rifle, Squad Automatic Weapon (SAW), or other machine gun which comprises the standard issue equipment of a service member in the United States military, manufactured after 1987, to wit, an ordinary military weapon, or converting the AR-15 rifles that he already lawfully possesses to automatic weapons,” and the acts criminalize his “planned course of conduct.”

The case was dismissed by the District Court, in part, on the grounds that Blount’s argument that his rights were being infringed upon was based on a “conjectural or hypothetical interest” rather than an “invasion of a legally protected interest that is concrete and particularized and actual or imminent.”

In other words, it was rejected on the grounds his argument was based on an illegal act he planned on committing rather than the real possibility of prosecution after committing it, and that he failed “to allege anything beyond a speculative fear of prosecution.”

While the judgment didn’t address Blount’s argument of those laws as unconstitutional, he outlined it in an eight-page document sent to the Quill. In general, he says, the right to bear arms is a constitutional right that has been passed down from the founding fathers, and he describes it, in part, as a fundamental right “upon which rights every other right is based, which rights we had inherited as the lineal, legal, and bloodline descendants of the ancestral class of rights-holders, free Englishmen.”

Blount is a Duke University School of Law graduate. He is married to Ashley Huddleston-Blount, whose family is from West Plains. Huddleston-Blount’s family is from West Plains, and her grandparents owned a small cattle farm in Oregon County and were known throughout the area. She is descended from the Huddlestons who were in the West Plains area as early as the start of the 1820s.