Category: Courts

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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Don’t do what Mr. Griffin did.

Criminal defense attorney explains manslaughter charges after suspected burglar killed

MEMPHIS, Tenn. (WMC) – A man has been charged with voluntary manslaughter after admitting to police that he shot a burglary suspect.

This happened on Robin Hood Lane in Memphis this Thursday. Marques Griffin, 30, told police he heard a noise in his apartment and found a man in his living room.

According to MPD, Griffin followed the intruder outside and fired three shots as the man ran away.

The suspected burglar died at the hospital.

Phil Harvey, the owner of Harvey Criminal Defense Lawyers, said that based on Griffin’s charges, MPD and the DA’s office decided he did not have a legitimate self-defense claim.

“If it’s true that Mr. Griffin shot someone outside of the home, then there’s a question of whether or not that self-defense statute applies,” said Harvey.

Harvey said Tennessee does not have a “Stand Your Ground” law.

He said the self-defense statute is written to apply when the victim is in their home and responding to a threat who is also inside or actively coming in.

“The standard ‘no duty to retreat’ part of that statute simply says you have to have a reasonable fear of what they call ‘imminent danger,’” said Harvey.

Harvey said that means that for deadly force to be considered self-defense, the victim has to be under an immediate threat of death or serious bodily injury.

Harvey said there is established case law on this type of incident.

“Tennessee v. Garner… It’s a 1985 case. A U.S. Supreme Court case that came out of Tennessee that actually dealt with whether or not police can shoot a fleeing felon. And in that case, it dealt with a burglary suspect who was running away and was shot by the police. And the federal courts decided that it is a violation of the Fourth Amendment,” said Harvey.

Griffin remains behind bars on a $50,000 bond and is slated to reappear in court on Monday.

Chief Justice Roberts Is Not Defending The Second Amendment—He Is Containing It

New York – Let us dispense with the pleasantries.

The United States Supreme Court’s handling of Second Amendment cases is not “confusing,” not “complicated,” and not the product of innocent happenstance. It is, rather, the predictable output of discretionary power being used to avoid decisive confrontation with state defiance of the Court’s own landmark rulings.

And in that avoidance, the Second Amendment is being bled—slowly, methodically, and with a degree of institutional self-protection that should alarm every citizen who understands what the Right of the People to Keep and Bear Arms is, and what it is for.

This companion article is necessarily short. The full argument is set forth in our original Arbalest Quarrel article, (Chief Justice Roberts Is Strangling The Life Out Of The Second Amendment) which we urge you to read in full. But the essentials are plain enough, and they must be stated plainly.

The Battle Is Not Only In The Merits—It Is In The Docket

Most Americans do not understand that the Supreme Court is not a forum of automatic justice.

The Court selects what it will hear. It grants or denies petitions for writs of certiorari at its discretion. And although Supreme Court Rule 10 pretends to supply a neutral architecture for that discretion, the reality is that Rule 10 functions as a judicial escape hatch—a convenient justification for declining the very cases that demand intervention.

In no domain is this more destructive than in Second Amendment litigation.

If the Court refuses to take the cases that matter, then Heller, McDonald, and Bruen become museum pieces—praised as “historic” while states openly devise end-runs around them in real time.

A Right that cannot be enforced is not a Right in any serious sense. It is a slogan.

The “Rule Of Four” Is Real—But The Strategy Is Realer

We discuss at length in the original article the Supreme Court’s so-called “Rule of Four”—the traditional practice that four Justices may grant certiorari.

This is not a trivial procedural detail. It is supposed to preserve the integrity of the Court’s appellate function by ensuring that a substantial minority may bring a matter before the Court for decision on the merits.

But in Second Amendment cases, the deeper reality is this:

Those Justices who cherish the Natural Law Right codified in the Second Amendment do not, as a general matter, vote to grant review unless they believe they have the votes to win.

And those who detest the Right will happily grant review when they believe they have five votes to shred it.

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NRA sues the NRA Foundation.

Synopsis:

NRA is suing its charitable arm (the Foundation), accusing the Foundation’s leadership of trying to do their own thing instead of benefiting the NRA, and diverting money intended for NRA programs into other things.

Specifically, there’s $160 million that the NRA says the Foundation promised donors would go to NRA education programs, but now the Foundation is trying to cut off funding and run its own competing programs.

Other accusations involve changing the bylaws improperly, making the Foundation’s trustees “self-perpetuating” (self-electing), and cutting the NRA out of any say in who the Foundation’s people are.

gov.uscourts.dcd.288159.1.0

California ban on open-carry firearms is unconstitutional, appeals panel rules

A federal appellate court ruled Friday that California’s ban on openly carrying a firearm throughout most of the state is unconstitutional.

The decision from a three-judge panel of the 9th U.S. Circuit Court of Appeals leaned heavily on the June 2022 U.S. Supreme Court ruling that struck down a New York state law regulating concealed weapons. That ruling worried lawmakers in California at the time – including the late Sen. Dianne Feinstein, who said the 6-to-3 Supreme Court decision meant “more people will carry guns in bars, in shopping malls, in churches, hospitals, movie theaters, even schools.”

“We are committed to defending California’s commonsense gun laws,” according to a written statement from the office of California Attorney General Rob Bonta in response to Friday’s appellate court ruling. “We are reviewing the opinion and considering all options.”

The 9th Circuit appellate decision stemmed from a civil rights lawsuit filed by Mark Baird of Siskiyou County. Baird argued in Sacramento federal court that he wished to openly carry a firearm for self-defense throughout California, but the state’s ban made it illegal in counties with populations exceeding 200,000 residents.

U.S. Circuit Judge Lawrence VanDyke, who wrote the appellate panel’s opinion, said the most recent Census shows that California counties with more than 200,000 residents are home to roughly 95% of the state’s population. There are 28 of California’s 58 counties have a population above the threshold, accounting for 37.3 million residents. Only 5% of California’s population for whom open carry is not outright banned, VanDyke said, are purportedly able to apply for a license that would allow them to open carry in just their counties.

VanDyke said openly carrying a gun has been the default manner of lawful carry for firearms for most of American history. When applying the standard set in the 2022 Supreme Court ruling in New York State Rifle and Pistol Association v. Bruen, VanDyke said the historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition.”

VanDyke, appointed in 2019 by President Donald Trump, said open carry remains the norm across the country with more than 30 states that generally allow open carry to this day, including states with significant urban populations.

“Similarly, for the first 162 years of its history open carry was a largely unremarkable part of daily life in California,” VanDyke wrote. “From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated. And when California first deviated (or considered deviating) from this practice, its reasons for doing so were less than morally exemplary.”

U.S. Circuit Judge N. Randy Smith provided a partial dissenting opinion, arguing that California’s ban complied with the 2022 Supreme Court decision. Smith, who was appointed in 2007 by former President George W. Bush, said his colleagues “got this case half right” but misread the Supreme Court’s ruling on the New York state gun law.

VanDyke was joined in his opinion by another Trump appointee, U.S. Circuit Judge Kenneth K. Lee, also appointed by Trump in 2019. VanDyke said California law recognizes two methods to carry a firearm in public: concealed, such as hidden under a shirt and not visible to others, and open carry, such as visible in a holster and exposed to public view.

“Regardless of how a firearm is carried in California – concealed or openly – as a general matter it is unlawful under California law to publicly carry a firearm without a license to do so,” VanDyke wrote. “The reality is that no one in California can open carry – with or without a permit – in the counties where 95% of Californians live. Nor can the 95% of Californians who live in those urban counties get any open-carry permit at all, even to carry openly in one of California’s rural counties.”

For now, the ban remains in place and the case was remanded to Sacramento federal court with instructions to rule in favor of Baird on the open-carry ban. Bonta and his office have the option to request an en banc review from the full 9th Circuit.

On the local scene

Judge dismisses charges against captain, 2 supervisors involved in deadly Ride the Ducks sinking in 2018

GALENA, Mo. (KY3) – A Stone County judge dismissed charges against the captain and two supervisors involved in the July 2018 deadly Ride the Ducks sinking.

Judge Johnnie Cox ruled there was no probable cause in the case against Captain Kenneth Scott McKee and two supervisors, Curtis Lanham and Charles Baltzell. The Missouri Attorney General’s Office refiled the charges in April 2022.

The Ride the Ducks’ Stretch Duck 7 with 31 people on board capsized and sank in stormy weather on Table Rock Lake. Seventeen passengers, including nine from the same family and one crew member driving the boat, drowned that night. It became one of the deadliest boating accidents in United States history.

Investigators say the Ride the Ducks crew had plenty of warnings about the severe weather, but the boat still launched more than 20 minutes after a thunderstorm warning was issued for Table Rock Lake. The duck boat sank under high waves while winds around the area reached up to 70 miles per hour that day.

Bondi is wrong. The Trump DOJ is wrong. The 2nd amendment protects Arms, not just guns. That includes guns, knives, swords, bows and arrows.

BLUF
The Bigger Issue
This case is not really about knives.
It is about whether the Second Amendment is a principle or a policy tool.
If “arms” means only modern firearms — and only when politically expedient — then the amendment has already been hollowed out.
If it means what it says, then the government does not get to pick winners and losers based on aesthetics, mechanics, or public discomfort.

The courts will decide this case.

But the DOJ has already made its position clear — and it should concern anyone who takes the Second Amendment at face value.

Trump DOJ Says the Second Amendment Protects Guns, But Not Knives

The phrase “shall not be infringed” has a way of revealing who actually believes it — and who only supports it when it is politically convenient.

That tension is now on full display inside the Trump Administration itself.

While the Department of Justice has aggressively challenged gun control laws in blue states and territories, it is simultaneously telling federal courts that the Second Amendment does not protect switchblade knives. According to the DOJ, Americans may have a constitutional right to own AR-15s and carry handguns, but automatic knives are a bridge too far.

That position has landed the administration squarely at odds with Second Amendment advocates — and exposed a familiar fault line in how the federal government treats “arms” it finds uncomfortable.

The Case at the Center of the Fight

The issue is playing out in Knife Rights v. Bondi, a case currently before the Fifth Circuit Court of Appeals. Knife Rights, a national advocacy group, is challenging the constitutionality of the Federal Switchblade Act — a 1958 law that restricts interstate commerce in automatic knives and bans their possession on certain federal, tribal, and territorial lands.

Rather than backing the challenge, the Trump DOJ is defending the law.

In its appellate brief, the Department argues that switchblade knives are “well-suited to criminal misuse” and fall outside the scope of the Second Amendment altogether. According to the government, history supports broad regulation of “inherently concealed” weapons, and automatic knives fall under that category.

The DOJ’s conclusion is blunt: there is no constitutional right to carry or possess them.

A Narrow View of “Arms”

To justify its position, the Justice Department leaned heavily on 19th-century laws regulating the concealed carry of weapons such as Bowie knives, dirks, daggers, and pocket pistols. Those laws, the DOJ argues, demonstrate a long-standing tradition of restricting weapons deemed particularly suitable for concealment.

According to the brief, the Federal Switchblade Act fits neatly within that tradition because it targets only knives whose blades are concealed inside the handle and deploy automatically. Fixed-blade knives, the DOJ noted, remain unregulated under federal law.

In the Department’s view, that distinction is enough to survive constitutional scrutiny.

What the DOJ did not address is why concealability alone strips an object of Second Amendment protection — especially when concealed carry of firearms is now constitutionally protected nationwide.

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Montana Accidentally Made Things Right on Gun-Free School Zones

I don’t think that schools should be totally gun-free zones. While I get that Bruen said that sensitive places could be gun-free, and schools are probably about as sensitive a place as you can name, I don’t think that barring lawful carry in schools for staff and parents is a winning strategy. After all, how many school shootings have we seen despite the schools having this status?

Yeah, plenty.

But the truth is that in most places, schools are as off-limits as they come. At least they are when it’s K-12 schools. Colleges are a different matter in many states, but below that level? The rules are firm.

And those rules include a “buffer zone” of sorts that prohibits the carrying of firearms around the school, regardless of most any other factor.

And Montana accidentally exposed a loophole and made things right, even if that’s not quite what they were trying to do.

Sometimes the most consequential gun control stories don’t start with a bill banning firearms. They start with lawmakers trying to expand freedom — and discovering that the Constitution doesn’t bend the way critics expect it to.

That is exactly what just happened in Montana.

In an effort to strengthen the right to carry, Montana lawmakers may have effectively erased gun-free school zones everywhere except on school property itself. Not through activism. Not through litigation designed to gut federal law. But through their own permitless carry statutes — and a federal court noticed.

The result is a ruling that has left gun-control advocates furious, school administrators uneasy, and Second Amendment supporters pointing out an inconvenient truth: when the state recognizes the right to carry as a right, federal carve-outs start to fall apart.

It all boils down to a guy who would go for a walk near a school. Sometimes, he’d carry a gun openly, and other times, it would be concealed. Local police told the school that he wasn’t breaking any state law, so they couldn’t do anything about it. The school moved kids away from the man and tried to erect visual barriers so no one would see him.

Eventually, the feds stepped in, arrested him, and saw the whole thing thrown out.

Why?

The U.S. Ninth Circuit Court of Appeals ruled that because Montana statutorily authorizes concealed carry for eligible citizens, those citizens qualify for the federal licensing exception.

In plain terms: if everyone is licensed by law, then everyone qualifies for the exemption.

The court dismissed the charges and made it clear that the outcome wasn’t an accident; it was the logical result of Montana’s legislative choices.

The ruling emphasized that Montana did not delegate licensing authority to agencies or local officials. The Legislature itself granted the authority. Congress, the court said, did not clearly prohibit states from doing that.

As a result of that ruling, though, gun-free school zones are confined exclusively to the school itself, not the area around the school.

If schools are going to be gun-free zones, this is how it should be. The idea that the area around the school is also gun-free is a major problem because, frankly, people travel by those schools all the time. They have to in order to get to where they’re going, and unless they’re licensed under state law, they may be committing a felony.

The “buffer zone” thing has always been wrong, but Montana accidentally fixed it for residents there. Instead of just saying a license isn’t needed, they licensed everyone, which had an unintended but positive effect regarding the whole school zone thing.

Maybe other states should address this via their own constitutional carry laws. Most didn’t take quite the same approach as Montana, but they could make that happen and change things once and for all.

It would be a win for gun rights, sanity, and everything else decent in the universe, and the anti-gunners would still have their allegedly gun-free schools.

Again, not that it seems to do much good.

I don’t understand Lowy’s particular brand of stupid, but I do admire his total commitment to it.

Anti-Gun Attorney Behind Mexico’s Lawsuit Against Gun Makers Brings the Stupid Back to SCOTUS

Jonathan Lowy, the former litigator for Brady who’s now the head of something called Global Action on Gun Violence, was on the receiving end of a 9-0 Supreme Court decision against his client in Smith & Wesson v. Mexico, where SCOTUS unanimously concluded that the Mexican government’s attempt to sue U.S. gunmakers for aiding and abetting cartel violence was not only foreclosed by the Protection of Lawful Commerce in Arms Act, but was based on a number of implausible allegations that Lowy failed to prove.

Lowy gets good money from anti-gun groups like Everytown to tilt at windmills, though, so that embarrassing loss isn’t keeping him away from the Supreme Court. Global Action on Gun Violence recently submitted an amicus brief in Wolford v. Lopez arguing that Hawaii’s “vampire rule” prohibiting concealed carry on all private property unless property owners explicitly allow it should be upheld because SCOTUS was wrong in Heller when it concluded that the Second Amendment protects and individual right to keep and bear arms.

The Second Amendment uniquely states its“well-regulated militia” purpose in its text, and, for over two centuries, courts faithfully and consistently interpreted it in light of that text and purpose. In modern parlance, it was read, logically, as its author, James Madison, intended; essentially, “Because a well-regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms in state militias shall not be infringed.” The history surrounding the Second Amendment’s drafting and ratification make clear that Madison and the other Framers were animated only by anti-federalist concerns that the new federal government could neuter state military forces.

… The Court in District of Columbia v. Heller replaced Madison’s vision with an ahistorical, atextual reading of the Second Amendment that renders its first half an inconvenient irrelevancy and injects a modern purpose of private, armed self defense with handguns that was nowhere mentioned in the Amendment’s text or history. After Heller, the courts have been required to interpret the Second Amendment essentially (and nonsensically) as:

“Because a well-regulated militia is necessary to the security of a free State, the right of the people (including those who have nothing to do with the militia and may even oppose the state) to possess arms for private self-defense (wholly unrelated to militias) shall not be infringed.” That interpretation is wrong.

Lowy’s argument was thoroughly rejected by the majority in Heller, which rightfully noted that the prefatory clause of the Second Amendment doesn’t make the right to keep and bear arms contingent on service in the militia.

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