Category: Courts

New Court Split Could Force Supreme Court to Decide Magazine and AR-15 Ban Cases

The legal fight over so-called “large capacity” magazine bans and semi-automatic rifle restrictions may be heading straight toward the U.S. Supreme Court. A new round of filings from some of the nation’s most experienced constitutional litigators has added serious momentum to that possibility.

Constitutional attorney Mark Smith of the Four Boxes Diner explains the significance of newly filed supplemental briefs in two major Second Amendment cases. Those filings argue that a fresh appellate court ruling has created the kind of legal conflict the Supreme Court typically requires before stepping in.

Attorneys representing gun owners in Duncan v. Bonta and Gator’s Custom Guns v. Wentz have now filed supplemental briefs at the Supreme Court pointing to a critical development.

The filings cite the recent decision in Benson v. United States, where the District of Columbia Court of Appeals ruled that the District’s ban on magazines capable of holding more than 10 rounds violates the Second Amendment.

That decision directly conflicts with rulings from other courts that have upheld similar bans. In particular, the federal Ninth Circuit previously allowed California’s magazine ban to stand in Duncan v. Bonta, while the Washington Supreme Court upheld its state’s restrictions in Gator’s Custom Guns v. Wentz.

This disagreement between courts is known as a “split of authority,” and it is one of the primary triggers that pushes the Supreme Court to grant review. When different courts interpret the Constitution in conflicting ways, the justices often step in to settle the matter once and for all.

According to the new briefs, that moment may have arrived.

The ruling in Benson did more than simply strike down Washington D.C.’s magazine restrictions. The court issued a detailed opinion explaining that magazines capable of holding more than 10 rounds are commonly owned and widely used for lawful purposes.

Under the framework established in New York State Rifle & Pistol Association v. Bruen, firearms regulations must be consistent with the nation’s historical tradition of firearm regulation. The D.C. court concluded that bans on commonly owned magazines do not meet that test.

In other words, the court found that these magazines fall squarely within the types of arms protected by the Second Amendment.

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“blast radius”

D.C. Claims Chaos Will Ensue if Magazine Ban Disappears

Last week a three-judge panel on the D.C. Court of Appeals (which is the highest local court in the District) ruled the District of Columbia’s ban on ammunition magazines that can hold more than ten rounds violates the Second Amendment. These magazines are “arms”, the court concluded, and they are unquestionably in common use for lawful purposes, which means that they’re protected by the U.S. Constitution.

Now the District of Columbia is hoping to reverse that decision through an en banc review, and is asking the Court of Appeals to keep the ruling from taking affect while it appeals.

In its request, the District claims that the panel’s decision “has created uncertainty and chaos” and that the “blast radius of the decision is potentially massive”, arguing that the opinion also impacts “exceedingly common charges governing unlicensed and unregistered firearms.”

I think D.C.’s licensing and registration requirements are equally unsound from a constitutional perspective, but there’s nothing in the panel’s decision that impacts those statutes. The opinion released by the court deals exclusively with the District’s prohibition on commonly owned magazines, and the only uncertainty resulting from the decision is whether or not the ban is still actively being enforced.

The U.S. Attorney’s office has already declined to pursue charges against any legal gun owner caught with a “large capacity” magazine, though the D.C. Attorney General’s office has continued prosecuting possession cases.

The D.C. Court of Appeals hasn’t granted the District’s request, but the opinion will likely remain on hold while the en banc review is being considered. The court has set an expedited briefing schedule that will conclude next Wednesday, and a decision on granting or denying the en banc request could come by the end of next week.

There’s an easy way to ensure there’s no confusion over the panel’s decision: let it stand and take effect.

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Gun Control Groups Mum After Hemani Oral Arguments

The Supreme Court’s decision in U.S. v. Hemani is likely to have major implications for millions of Americans who own firearms, use marijuana, or both (in violation of current federal law). And it’s not like the gun control lobby has completely ignored the case. Both Brady and Everytown for Gun Safety submitted amicus briefs supporting the Trump administration’s position that Section 922(g)(3) can be used to prohibit any and all “unlawful” drug users, regardless of what drug it is, how much of it is taken, or whether that individual drug user has ever shown themselves to be a danger while under the influence.

Yet, at least as of mid-afternoon on Monday, none of the anti-gun groups have made a peep about today’s oral arguments, which doesn’t seem to have gone well for the government. The closest commentary that I’ve been able to find comes from Duke Center for Firearms Law, which is run by an attorney who has worked extensively with groups like Everytown in the past. At least Duke’s willing to acknowledge what happened.

Pepperdine University law professor Jake Charles, who helped author a brief in support of the government’s decision, was also following along to the oral arguments, and he too struggled to find a positive takeaway from the “MOAR GUN LAWZ” point of view.

I think the Chief & Alito are very skeptical of the challenger here; they seem to think Congress can of course disarm drug users. But…it’s hard for me to see many other justices clearly on that side. I’m sure the govt will get more than 2 votes, but not sure it’ll be a majority.

I wouldn’t be surprised if it’s 7-2, though I could also see Justice Clarence Thomas joining Alito and Roberts in voting to uphold 922(g)(3) as it applies to Ali Danial Hemani.

I don’t think Charles fairly describes the challenger’s position, though. Hemani’s attorney Erin Murphy repeatedly stated that Congress could categorically deny firearm possession to some drug users, so long as it its rationale was grounded in the national tradition of firearm regulation and was based on a factual finding of a particular drug’s dangerousness. What it can’t do, however, is look at historical statutes that regulated the behavior of “habitual drunkards” and assume it has the power to treat all “unlawful users” of drugs in roughly the same fashion.

Murphy did an excellent job of pointing out that “drunkards” weren’t just people who regularly imbibed alcohol. If that was the definition, then most American adults could have been stripped of their Second Amendment rights. It was the fact that their alcohol use rendered them a danger to themselves or others that gave the state the authority to step in and impose sanctions on their individual liberties. That argument can and does certainly apply to some habitual drug users, but it’s hard to argue with a straight face that it applies to every one of them.

I was a little nervous about where a majority of the justices would come down before oral arguments began, but I feel much more confident after listening to two hours of questioning. It may be 7-2, 6-3, or even 5-4 if Kavanaugh or Barrett throws us a curveball, but I believe there’ll be a majority ruling in Hemani’s favor. How broad or narrow it is I’d say is still very much undecided, and we will likely see some of the justices in the majority use very different arguments and rationales before they end up in the same place.

Which brings us back to today’s silence of the gun control groups. Yes, Everytown and Brady submitted briefs in favor of the DOJ’s position, but no anti-2A group has really been talking heavily about Hemani, because they know that as much as most Democrats despite our right to keep and bear arms, they’re also not generally fans of putting people behind bars… even for serious, violent offenses. Moreover, most Democrats support legalizing marijuana, and aren’t really keen on using its federal status as a Schedule 1 drug as an excuse to go after people, gun owners or not.

If I’d been advising Everytown or Brady I would have told them to side with Murphy and her client. Even if they had argued that yes, the statute is confusing, vague, and unconstitutional as it applies to this individual, but it still has merit in other criminal cases, that would be a defensible position (at least depending on where they drew the line). By declaring that the law is valid in all applications, though, the anti-gun groups have positioned themselves on the wrong side of history and a large number of the Democrats they depend on as their base of support.

BFA joins federal lawsuit challenging ATF tax stamp requirement on suppressors, short-barreled rifles

On Feb. 26, 2026, Buckeye Firearms Association (BFA) joined plaintiffs in filing a lawsuit challenging the constitutionality of the National Firearms Act of 1934 (NFA).

The case, Roberts v. ATF (2:26-CV-91-SCM), was filed in the U.S. District Court for the Eastern District of Kentucky.

Until the passage of President Donald Trump’s One Big Beautiful Bill, the NFA had imposed a $200 excise tax (“tax stamp”) on suppressors and on short-barreled rifles and required a tax-enforcement registration requirement on those items.

Trump’s bill included both the SHORT Act and the Hearing Protection Act and would have eliminated the NFA tax and registration. At the time, BFA joined a long list of organizations nationwide in signing an open letter to two U.S. House of Representatives committees, insisting that Congress eliminate unjust restrictions imposed by the NFA.

The bill passed the House, but Senate parliamentarian Elizabeth MacDonough, a Democrat appointed during the Harry Reid era, on July 3 stripped both pro-gun measures from the legislation, asserting that they exceeded the provisions of the Byrd rule, which governs reconciliation measures, because they weren’t directly tax related. All that remained was a reduction of the tax stamp from $200 to $0, effective Jan. 1, 2026.

The good news is that MacDonough’s actions have resulted in lawsuits challenging the remaining registration requirements for the affected arms under the NFA as unconstitutional because Congress passed the NFA in 1934, specifically premised on its enumerated power to “lay and collect taxes.”

This Roberts complaint, which BFA has signed onto as a plaintiff, argues that because the tax has been eliminated, the NFA’s tax-stamp requirement is no longer justified under Congress’ taxing power or under any other authority granted under Article I of the U.S. Constitution.

The complaint also asserts that the NFA registration requirement for suppressors and short-barreled rifles violates the Second Amendment.

The Supreme Court has established that any regulation on arms-bearing conduct must be consistent with our nation’s historical tradition of firearm regulation. As the complaint argues, there is no tradition that supports the NFA’s registration requirement for protected arms such as suppressors and short-barreled rifles.

The plaintiffs in the case include Buckeye Firearms Association, American Suppressor Association Foundation, Center for Human Liberty, Jews for the Preservation of Firearms Ownership, Meridian Ordnance, and two individuals. The case represents the third lawsuit supported by the NRA, ASA, Firearms Policy Coalition, and Second Amendment Foundation challenging the NFA since the Big Beautiful Bill eliminated the tax for NFA items.

Dean Rieck, BFA executive director, said, “This has the potential to be another landmark case for Buckeye Firearms Association.

“BFA has been directly involved in a variety of crucial Second Amendment cases,” said Rieck, “including Heller (2008), McDonald (2010), and Bruen (2022), all game-changing decisions for gun rights in America. If we win the Roberts case, it will yet another major victory, not just for Ohioans, but for all U.S. citizens who value and respect the Constitution.”

Roberts builds upon Brown v. ATF, which was filed in the U.S. District Court for the Eastern District of Missouri in August 2025, and Jensen v. ATF, which was filed in the U.S. District Court for the Northern District of Texas in October 2025.

‘minor threats’. Phlogistonic propaganda

Missouri Supreme Court opens door to using deadly force in self-defense, even over minor threats

Missouri’s “stand your ground” law allows a person to use physical force “to the extent he or she reasonably believes such force to be necessary to defend himself or herself.”

[no it doesn’t. SYG means you are not required to flee from where you’re at. An idiot and biased take from whoever wrote this at NPR]

An earlier appellate decision said deadly force, like using a firearm or a knife, can be used to protect yourself against death, injury or assault, if the force is reasonable. Prosecutors fear the ruling will affect victims of violent crimes and could make meaningless the state’s Castle Doctrine, a version of “stand your ground” laws.

[where the NPR news writer came up with that idiot take, I haven’t a clue either, as the ‘Castle Doctrine’ also isn’t implicated in the case. This is a pure Use of Force in Self Defense case]

An appellate court ruling that critics say will broaden when people can use deadly force as a self-defense will now remain in effect after the Missouri Supreme Court declined to hear the case.

With the Tuesday refusal of Danielle Lechocki’s case, a November ruling by the Missouri Court of Appeals, Eastern District, will stand. The decision was decried by a state prosecutors group as greatly expanding the state’s self-defense law so far that people could justify using deadly force even over a minor threat.

The case involved Lechocki’s use of a knife when she felt “extremely threatened” by another woman during an altercation outside a veterans’ homeless shelter in 2022. A Warren County judge denied Lechocki’s request to use self-defense to justify her actions, agreeing with the prosecutor who argued that deadly force cannot be used to repel a simple assault and battery.

The jury ultimately found Lechocki guilty of attempted unlawful use of a weapon but acquitted her of fourth-degree assault. Lechocki was sentenced to two days in jail and a fine of $1,000.

With the high court’s ruling, Lechocki’s conviction was overturned and the case may return to the county, said Christian Lehmberg, Lechocki’s public defender on the appeal. The judge unfairly prevented the jury from hearing her defense, Lehmberg said.

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So, what else is new

SCOTUS Kicks 2A Can Down Road Again

By Dave Workman

Editor-in-Chief

Once again, the U.S. Supreme Court has kicked the proverbial can down the road when it comes to important Second Amendment cases which have been submitted for high court review, leaving another conference session this coming Friday, Feb. 27, to possibly take up one or more of these cases.

As noted by SCOTUSBlog, several high-profile cases are waiting for a decision, one way or the other, on whether they will be accepted. This delay has become a familiar problem with the John Roberts Court, which seems content to not take some cases dealing with semi-auto rifles, original capacity magazines and restoration of rights for years-old non-violent felony convictions.

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SAF, FPC,  NRA Jump Into Case In Which Court Ordered SIG To Divulge Customer Names

Two large gun-rights groups are siding with gunmaker Sig Sauer in a court case in which plaintiffs seek to force disclosure of gun owners’ identities without their consent.

On February 17, the Firearms Policy Coalition (FPC) and National Rifle Association (NRA) filed an amicus brief with the U.S. District Court for the Middle District of Pennsylvania in support of defendant SIG SAUER’s motion for reconsideration in the case Hall v. Sig Sauer, Inc.

At issue is the court ordering Sig to divulge the identities of some of its customers to the plaintiffs in the case as part of the discovery process. The brief seeks reconsideration of that order, which FPC and NRA deem inappropriate.

Trump Wins Big as 5th Circuit Upholds Indefinite Detention Without Bond for Illegal Immigrants

A divided federal appeals court handed the Trump administration a major victory Friday, ruling that immigration authorities can detain undocumented immigrants indefinitely without bond hearings during deportation proceedings, even if they’ve lived in the United States for decades.

The Fifth Circuit Court of Appeals 2-1 decision marks the first time an appellate court has upheld the administration’s mandatory detention policy, reversing two district court rulings and contradicting hundreds of similar cases nationwide where federal judges found the policy unlawful.

What the Court Ruled
The decision immediately affects thousands of immigrants in Texas, Louisiana, and Mississippi—states that house the nation’s largest concentration of immigration detention facilities. Immigrants who were previously eligible for release on bond while their deportation cases proceeded through the courts now face mandatory detention until their cases conclude, which can take months or years.

According to CNN, the ruling allows authorities to deny bond hearings to immigrants who had been living in the country unlawfully, including those previously allowed to remain free while their immigration cases moved through the system.

The two plaintiffs at the center of Friday’s ruling, Victor Buenrostro-Mendez and Jose Padron Covarrubias (both Mexican nationals) entered the United States illegally in 2009 and 2001, respectively. When Immigration and Customs Enforcement detained them in 2025, both men requested bond hearings before immigration judges. ICE denied those requests, citing a September 2025 Board of Immigration Appeals decision that adopted a new interpretation of decades-old immigration law.

Both men had initially won their cases before district court judges, who ordered them released or granted bond hearings. Friday’s appellate ruling reversed those decisions.

Overwhelming Lower Court Opposition
The ruling contradicts a wave of district court decisions. According to Politico, at least 360 federal judges rejected the Trump administration’s expanded detention policy across more than 3,000 cases, while only 27 judges backed it in approximately 130 cases.

The policy shift triggered what one government lawyer recently described as a “tsunami” of habeas corpus petitions flooding federal courts nationwide. In Minneapolis, Chief Judge Patrick Schiltz recently accused ICE of violating nearly 100 court orders directing the release of detainees.

U.S. Attorney General Pam Bondi called Friday’s decision “a significant blow against activist judges who have been undermining our efforts to make America safe again at every turn,” according to Reuters.

Department of Homeland Security Secretary Kristi Noem wrote that “activist judges have ordered the release of alien after alien based on the false claim that DHS was breaking the law. Today, the first court of appeals to address the question ruled that @DHSGov was right all along.”

What Happens Next
The Fifth Circuit’s ruling applies only within its jurisdiction—Texas, Louisiana, and Mississippi. Other federal appeals courts are considering similar challenges, including the Seventh Circuit, which issued a preliminary ruling last year rejecting the administration’s interpretation.

Legal experts say the issue will reach the Supreme Court given the nationwide importance and the circuit split that may emerge.

“The Fifth Circuit isn’t just the most right-leaning appeals court in the country; the government drew on this panel two of that right-leaning court’s most right-leaning judges,” CNN legal analyst Steve Vladeck said. “It’s hard to imagine they’re going to get the last word.”

Major 2A Win: Fifth Circuit Strikes Down Lifetime Gun Ban for Non-Violent Felon

A unanimous decision from the United States Court of Appeals for the Fifth Circuit just delivered one of the most important Second Amendment wins in years—and it did so quietly, methodically, and on solid constitutional ground.

In United States v. Charles Hembree, the Fifth Circuit ruled 3–0 that the federal government cannot permanently disarm a person based solely on a single, non-violent drug possession conviction. Applying the Supreme Court’s modern Second Amendment framework, the court held that enforcing the federal “felon-in-possession” statute, 18 U.S.C. § 922(g)(1), against Hembree violated the Constitution.

For gun owners, this ruling matters far beyond one defendant in Mississippi.

United States v. Hembree

Charles Hembree had one felony on his record—a 2018 Mississippi conviction for possession of methamphetamine. Hembree was not accused of trafficking drugs, committing violence, or using a firearm in connection with the offense. Years later, federal prosecutors charged him under § 922(g)(1) after he possessed a firearm, arguing that any felony conviction automatically justifies a lifetime gun ban.

A federal district court agreed. The Fifth Circuit did not.

On appeal, a three-judge panel vacated Hembree’s conviction, holding that the statute was unconstitutional as applied to him. The court concluded that permanently disarming someone for a single, non-violent possession offense has no grounding in the Nation’s historical tradition of firearm regulation.

That historical grounding is not optional. It is now the law.

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The Perversity of Citing The Black Codes To Defend Gun-Control Laws.

Neal Katyal and Justice Jackson were placed in the uncomfortable spot of having to explain why racist legislation to disarm the freedman was actually relevant.

One of the most bizarre aspects of modern Second Amendment litigation is how supporters of gun control are forced to favorably cite Jim Crow laws. In all other contexts, these sort of anti-canonical statutes would be untouchable. Yet, when it comes to guns, all the usual rules go out the window. In Wolford v. Lopez, one of the leading authorities for Hawaii’s law is an 1865 Louisiana statute. Neal Katyal described it as a “dead ringer” for the Hawaii statute.

During the oral argument, Justice Gorsuch was incredulous that Hawaii was relying on this shameful precedent. He asked Wolford’s counsel if it was appropriate to rely on such a law to inform the nation’s traditions.

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RESPONSE BRIEF FILED IN SAF’S SECOND NFA CHALLENGE

BELLEVUE, Wash. — Jan. 21, 2026 — The Second Amendment Foundation (SAF) and its partners have filed a response brief in the second of the organization’s two lawsuits challenging the constitutionality of the National Firearms Act (NFA) registration scheme.

Filed with the U.S. District Court for the Eastern District of Missouri, the brief voices the organization’s opposition to the Government’s motion for summary judgment in Brown v. ATF.

Until President Trump signed the One Big Beautiful Bill Act, the NFA established a $200 tax and registration regime on certain classes of firearms including silencers, short-barreled firearms and “any other weapons” (AOWs), drawing from Congressional authority to levy taxes. SAF and its partners filed lawsuits challenging the remaining registration requirements because without the tax, Congress’ reliance on their taxing authority is no longer justifiable.

“The passage of the Big Beautiful Bill kicked the already questionable constitutional authority for the NFA right out from under the ATF,” said SAF Director of Legal Operations Bill Sack. “With its actual purported authority now eliminated, the government has resorted to borrowing taxation authority from elsewhere in the statute, or entirely different constitutional authority rarely asserted to justify the NFA. Today’s brief explains exactly why neither tactic is persuasive.”

SAF is joined in Brown v. ATF by the American Suppressor Association, National Rifle Association, Firearms Policy Coalition, Prime Protection STL Tactical Boutique and two private citizens.

“For the second time this week SAF and its partners have filed opposition briefs in response to the government’s insistence on defending the NFA,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’re better situated now than we have been in almost 90 years to relegate significant chunks of the unconstitutional NFA to the dustbin of history. Today’s brief is a major step toward that goal.”

Supreme Court Seems Skeptical Hawaii’s ‘Vampire Rule’ Comports With Second Amendment

A majority of Supreme Court justices appear ready to strike down Hawaii’s “vampire rule” that prohibits lawful concealed carry on all private property unless the property owner expressly gives their consent, though during oral arguments today the three liberal justices seem inclined to uphold the law.

Justice Ketanji Brown Jackson, for instance, repeatedly questioned plaintiffs’ attorney Alan Beck and Deputy Solicitor General Sarah Harris (who participated in the oral arguments alongside the plaintiffs) about why this case wasn’t simply about property rights, without any Second Amendment implication whatsoever.

When Jackson asked whether this was really a case about property rights, not the Second Amendment, Beck rightfully responded that the law directly implicates their Second Amendment rights, but Jackson argued that while their rights might be “affected,” they’re not necessarily “implicated.”

Justice Neil Gorsuch’s line of questioning pushed back against Jackson’s contention, noting that the courts don’t allow property rights to be defined in a way that infringes on other constitutional rights.

Justice Sonya Sotomayor, meanwhile, appeared ready to completely disregard the Supreme Court’s “text, history, and tradition” test by suggesting that Hawaii’s “culture” of not carrying firearms in public trumps the national tradition of bearing arms in publicly accessible places. Both Beck and the Harris rebuked that suggestion, pointing out that the Court has specifically discussed a national tradition.

Justice Brett Kavanaugh buttressed that argument in his own question to Harris, wondering if the government wasn’t making the issue too complicated by raising questions about pre-textual laws instead of simply looking to see whether Hawaii’s “vampire rule” is part of a “deeply rooted tradition,” which he defined, in part, as laws that were widely adopted among a number of states.

Several conservative justices raised questions about the level of generality that can be used when looking for historical analogues, which indicates that, whatever SCOTUS ultimately decides about Hawaii’s law in question, the opinion will address, to one degree or another, how close any law from the past must be to a current regulation in order to be useful history for judges.

Given the discussion and debate about Hawaii’s use of the 1865 Louisiana law that prohibited bringing guns onto plantations without the plantation owner’s permission (a law that was part of the state’s infamous Black Codes designed to restrict the rights of newly-freed slaves), I’m cautiously optimistic that the Court will not only address the level of generality for historical analogues, but also the relevance of statutes found in history that are unquestionably unconstitutional today.

Justice Jackson argued that those laws must be considered a part of the national tradition, but Harris pushed back on that. In her view, unconstitutional laws are, by their very nature, outliers. And under the Supreme Court’s test, outlier laws are not a part of the national tradition of keeping and bearing arms.

Neal Katyal, arguing for Hawaii, echoed Sotomayor’s contention that local laws and customs matter more than a national tradition of gun ownership, while still arguing that the national tradition of gun ownership includes the ability of states to flip the default rules.

Gorsuch asked Katyal about relying heavily on the “outlier” Black Code law in defending Hawaii’s statute. Katyal called them a shameful part of American history, but argued that the law was presumptively constitutional because Louisiana was re-admitted to the Union with that law still in place. Katyal, however, never really explained why the Louisiana law shouldn’t be considered an outlier.

Katyal also got pushback for asserting that the Bruen test requires looking at history when trying to figure out if the Second Amendment is being implicated, as opposed to looking at history when determining whether a law fits within a national tradition. To do otherwise, he said, would be to put the government in the position of having to defend the history of all laws regarding firearms. Kavanaugh and Barrett both disagreed with Katyal, arguing that’s exactly what the Court’s Second Amendment jurisprudence dictates.

Both Beck and Harris did a great job in tearing apart Hawaii’s statute, and while Neal Katyal did his utmost to defend the law I don’t see him getting support from any of the more conservative justices. I predict the Court will drive a stake through the heart of Hawaii’s “vampire rule” when the Wolford opinion is released, though I’m sure anti-gun lawmakers in the Aloha state are already working on their next scheme to infringe on our right to bear arms.

DeStefano flown to New York City, prepping for court hearings

by Lee Williams

Indie Guns owner Lawrence Michael DeStefano was picked up from Florida’s Orange County Jail by New York detectives this week after serving nearly 90 days in custody and flown to New York City aboard a private jet.

When they landed, the officers took a group photo and then rushed DeStefano to an NYPD precinct to be booked, and then to a quick court hearing in Queens. Afterward, he was taken to Rikers Island, a notorious 413-acre state prison located in the East River near the Bronx, where he remains incarcerated.

At the court hearing, a New York State prosecutor tried to portray him as an “evil gun runner,” DeStefano said, but the judge cut her off.

“The judge looked at her and said, ‘I have a 65-year-old man with no criminal record and you’re saying all these bad things about him.’ Then he turned to me and said, ‘You’ve got some real serious charges against you. If you’ve got somewhere to stay, I will let you out on bail,’” DeStefano said over a jail phone Friday morning. “This is going to be a fight and the gloves are off. I am going balls-to-the-wall on this. It’s going to get ugly.”

DeStefano’s court-appointed defense attorney was of little help. She showed up just seconds before the hearing began.

“She had no idea what was going on,” he said.

He will appear in court for a bail hearing in two weeks, DeStefano said.

“I need to figure out how to get a message to the gun community,” he said. “If I am out on bail, I could win this. I know what I need to do to win this. I need to do research, but they’re seizing it for evidence. They already deleted my Telegram account after they got my password,” he said.

Throughout the trip, the detectives were talking furiously with the New York State Attorney General’s Office about whether to issue a press release, DeStefano said.

“It was chaos. Everyone was on their phones. They decided to issue a press release,” he said. “You guys really think you’re doing a press release? You’re helping me. The gun culture is a tight-knit family.”

New York State Attorney General Letitia James issued a massive press release late Wednesday, titled, “Attorney General James and NYPD Commissioner Tisch Announce Indictment of Florida Man for Illegally Shipping Firearms and Ghost Guns to New York.”

It contains a link to a 42-page indictment that charges DeStefano with 71 felonies, which could see him jailed for a total of 521 years.

“Lawrence Destefano and his company Indie Guns are accused of flooding New York with illegal firearms, and we are determined to bring him to justice,” James said in the press release. “I will not tolerate illegal and dangerous weapons in our communities, and I thank our partners in law enforcement for their work to shut down this ghost gun supplier.”

Despite the allegation and the centuries behind bars DeStefano faces, the press release indicates that only a dozen actual firearms were recovered, along with “two ghost gun kits, 28 high-capacity magazines, and over 1,400 rounds of ammunition, which were mailed to locations in Brooklyn, Queens, and Nassau County.”

The press release also mentions the default judgement James won in a civil suit against DeStefano, which he ignored.

“In March 2024, Attorney General James secured a $7.8 million judgment and court order against Indie Guns prohibiting it from selling firearms in New York,” the press release states.

The lengthy press release even includes quotes from NYPD Commissioner Jessica S. Tisch, HSI New York Special Agent in Charge Ricky J. Patel and USPIS Inspector in Charge Ketty Larco-Ward of the New York Division. All strongly supported James for “disrupting the dangerous illicit weapons pipeline,” and for “dismantling gun trafficking networks.”

DeStefano knows he will be severely outgunned in court.

“I am ready for the fight,” he said.

Supreme Court limits dual charges in overlapping gun statutes

WASHINGTON (TNND) — The U.S. Supreme Court on Wednesday clarified how federal gun statutes apply when a single act potentially violates two overlapping provisions, holding that prosecutors may not secure separate convictions under both statutes when one act triggers identical criminal elements.

The decision in Barrett v. United States (No. 24-5774) reversed part of a lower court’s judgment and sharply restricts the government’s ability to secure cumulative punishments for a single criminal act involving guns.

Background of the Case

The case stems from the prosecution of Dwayne Barrett, who was convicted in federal district court of robbery and related gun offenses.

According to court documents, Barrett committed a series of robberies between August 2011 and January 2012. During one, Barrett’s confederate shot and killed Gamar Dafalla.

The Department of Justice (DOJ) previously said Barrett, as well as a co-defendant, were convicted in March 2013 of murder, robberies, and gun charges after a two-week jury

During the commission of the underlying crime, Barrett carried and used a gun, conduct that prosecutors charged under two separate provisions of federal law, including one that makes it a crime to use or carry a gun during and in relation to a crime of violence or drug trafficking, as well as other that escalates the penalty where a person causes death while committing an offense, potentially exposing a defendant to life imprisonment or even the death penalty.

At trial and on appeal, the government argued that Barrett could be convicted under both statutes for the same act, essentially treating the gun use that caused Dafalla’s death as a basis for two separate convictions.

 

How Many Historical Gun Laws Constitute a ‘National Tradition’?

The Supreme Court has explicitly stated that, in order for a modern gun law to be constitutionally sound, it must comply with the text of the Second Amendment as well as the history and tradition of gun ownership (and gun regulation). So far, though, the Court hasn’t given a whole lot of advice as to what constitutes a national tradition.

In Bruen, SCOTUS doubted that “just three colonial regulations could suffice to show a tradition of public-carry regulation,” but declined to state definitely what would suffice; both in terms of the number of laws as well as when those laws were put into effect. Is 1791 the most important date, since that’s when the Second Amendment was ratified; is it 1868, when the Fourteenth Amendment was ratified; or are both equally important?

Pete Patterson, an attorney at Cooper & Kirk with an extensive background as a Second Amendment litigator, was asked about this by SCOTUSblog’s Haley Proctor for her 2A-focused series “A Second Opinion,” and his answer worth discussing.

What does it take to make a sufficient showing of a history of firearms regulation? How many laws or practices do you need, from what historical period, and how do we describe the tradition those laws represent?

These are all issues that are hotly contested, but I will give you what I think is the view most consistent with Bruen and Supreme Court precedent generally.

First, the relevant historical period should be centered on 1791, when the Second Amendment was ratified. The court has held in many cases that when provisions of the Bill of Rights apply to the states, they have the same meaning as they have against the federal government.

It should follow that the meaning was set in 1791, when those provisions were first ratified and applied to the federal government. To be sure, those rights were not incorporated against [applied to] the states until the passage of the Fourteenth Amendment in 1868, but that amendment did not purport to change the substantive meaning of the Bill of Rights.

This conclusion is consistent with the court’s practices, including its holding in Espinoza v. Montana Department of Revenue that the laws of over 30 states from the second half of the 19th Century could not alone “establish an early American tradition” that would inform the meaning of the First Amendment’s establishment clause.

That makes sense, both from a legal and practical standpoint. As Patterson points out, there’s nothing in the Fourteenth Amendment that suggests any type of revision to the Bill of Rights. It’s purpose wasn’t to update the Bill of Rights, but to ensure that those rights were safeguarded against intrusion by state and local governments as well. And during the congressional debate over the Fourteenth Amendment, the right to keep and bear arms was front and center.

Second, what the government should have to establish is a limitation that was widely understood by Americans at ratification to qualify the scope of the right to keep and bear arms.

The common law frequently will be a primary resource in this inquiry, as that was law that was understood to be generally applicable. The common law is reflected in sources like case law and prominent secondary sources such as Blackstone’s Commentaries.

Of course, the focus should be on the prevailing American understanding rather than British understandings that Americans may have repudiated, so consulting American sources like Tucker’s Blackstone is an important part of the inquiry.

Statutes also play a role, of course, but the government should have to show that any statutes it relies on are consistent with the prevailing, general understanding and not a departure from it. That presumably is why Bruen repeatedly emphasizes that a handful of outlier statutes cannot establish a tradition of regulation.

I think its also important to note that the Supreme Court talked about a “national” tradition, not a state-specific or regional tradition. If three colonial-era statutes aren’t enough to suffice, then three statutes from one part of the country shouldn’t be enough either. This is particularly important when courts are considering laws adopted around the time the Fourteenth Amendment was ratified, given that many southern states instituted laws restricting the right to keep and bear arms that might have been racially neutral on their face, but were hardly enforced in a colorblind fashion.

Patterson adds one more metric in determining a “national tradition.”

Third, the tradition should be described at a level of generality that is general enough not to make arbitrary distinctions, but specific enough not to risk eviscerating the right.

If readers are interested in the level-of-generality question, I recommend the brief my colleague John Ohlendorf filed in Wolford on behalf of professor [Joel] Alicea, which address that question at some length.

As an example of the need for the Court to address the level of generality that’s most appropriate, Ohlendorf cites the historical tradition recognized in Bruen of states prohibiting arms “in legislative assemblies, polling places, and courthouses.”

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