Reading the 2A tea leaves in SCOTUS vaccine mandate ruling

On the surface, there aren’t a lot of similarities between the Biden administration’s vaccine mandate put on ice by the Supreme Court on Thursday and the New York City carry laws that SCOTUS is currently considering. Beyond the obvious difference between a vaccine and a firearm, one case revolves around an OSHA rule while the other is challenging a state law that turns the Second Amendment on its head.

Despite the differences, however, I think we might actually be able to glean a couple of things from Thursday’s ruling, starting with the fact that we had three separate opinions handed down. There was the majority opinion staying the enforcement of Biden’s mandate, but in addition to the dissent by the progressive wing of the court, we also saw a concurring opinion authored by Justice Neil Gorsuch and joined by Clarence Thomas and Samuel Alito that’s much stronger in its criticism of Biden’s attempted power grab than the per curium opinion released by the Court.

Both the majority and concurring opinions agree that the OSHA regulation goes way too far by introducing a workplace rule that extends beyond the workplace, but Gorsuch’s opinion brought home the threat to individual liberty posed by Biden’s vaccine mandate.

The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.

In other words, even in states of declared emergencies, our rights don’t shrivel up and shrink down to the size of a raisin.

Of course, for the progressive wing of the court, our rights must always take a back seat to the interests and desires of the state. I was talking with Mark Walters of Armed Armerican Radio on Thursday, and he made an excellent point about the dissenting opinion and how it relates to the Bruen case challenging New York’s carry laws. Read the opening paragraph of the dissent and replace “COVID-19” with “gun violence,” and you can see the line of argument that Breyer, Sotomayor, and Kagan are likely to take a few months from now.

Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.

I don’t know about you, but I can easily see these same three justices proclaim that “every day gun violence poses grave dangers to the citizens of this country, and in particular those who live in densely populated urban areas,” which therefore justifies the extraordinary position taken by the state of New York; nobody has the right to bear arms in self-defense, and only those who can justify their “need” to do so can get permission from the state to carry a gun.

After seeing SCOTUS’s decision on Thursday, I still feel good about what the Bruen decision will say, but I will admit to being a little more concerned about the prospect of multiple opinions from the conservative wing of the Court. I hadn’t thought much about the idea of six justices agreeing on some basic fundamentals in striking down New York’s law, with the Thomas/Gorsuch/Alito wing offering up a concurring opinion that would go even further, but it’s definitely a possibility when the decision comes down later this year.

BREAKING: Supreme Court Rules on Biden’s Vaccine Mandates

The Supreme Court ruled Thursday to strike down President Joe Biden’s Wuhan coronavirus vaccine mandate for private businesses. Justices upheld his executive order requiring vaccination for healthcare workers at facilities receiving federal funding.

Native Nations and The Right to Bear Arms in a Post McGirt World

In 2012, I published an article examining the interplay between Indians (Indigenous Americans) and guns.[1] That article traced the relationship between Indians – individually and as members of Native Nations – and firearms, stretching from the earliest days of contact between Natives and colonizers, up to present day. The complex historical and legal dynamics discussed therein were animated by three intertwined theories, articulated as exceptionalism, citizenship, and race, respectively. Since that article was published almost a decade ago, there have only been a few scholarly works that have contributed to the conversation around guns and gun rights in Indian country. But, as the United States continues to set itself apart as a nation in which gun rights seemingly flow in one direction – more guns and greater gun rights – the issue of how Indian tribes govern the ownership, use, and control of guns remains relatively unexamined.

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BLUF:
Sotomayor [might as well add Breyer in as well, ed] may not make a blunder as obvious as this one again, but the thought process—or lack thereof—that led to it will not change.

At Minimum, Sotomayor Should Recuse Herself From All Decisions Regarding COVID.

Sonia Sotomayor’s ludicrous claim before her Supreme Court peers during oral arguments that one hundred thousand children were “in serious condition” from COVID-19 when three thousand would have been more accurate, is far more than just an embarrassment to the justice.
How could such an ill-informed person be a justice of our highest court? What else doesn’t she know—or, perhaps more exactly, doesn’t want to know?
Her full quotation makes it sound still worse.
“We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition, many on ventilators.”
None of those are true. We are currently going through a bump in cases of the vastly weaker Omicron variant, which many have compared to a cold and in the vast majority of instances can be treated at home with therapeutics.
Even extreme vaccine enthusiast CDC director Rochelle Wallensky admitted that hospitalizations for other age groups were fifteen fold greater than the pediatric—and those weren’t much.
Sotomayor wasn’t alone on the court with her what some might euphemistically call “mischaracterization.” Justice Stephen Breyer claimed “750 million new cases” of coronavirus had been reported in our country when the entire population is well less than half that.
Can you get two cases of COVID-19 at once? Who’d a thunk it?
What’s going on here? Are the two Supreme Court justices taking stupid pills? Is the “Wise Latina” not so wise after all?
She may not be a legal genius but that’s not the problem. The problem is what I have called “want-to-believe.”
Sotomayor and Breyer are so convinced of liberal/conservative ideology that they are unable even to see the arguments of the other side, sometimes to the extent that they do not even know they are there, that they exist.
This is even true when the arguments are about science, not politics—when facts, not opinions, are most important.

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Man Who Bought Gun for Kyle Rittenhouse Pleads ‘No Contest’

Dominick Black, the man who bought the rifle Kyle Rittenhouse carried and used in Kenosha, Wisconsin, on August 25, 2020, is pleading “no contest” to “contributing to the delinquency of a minor.”

The Associated Press notes Black purchased the rifle when he was 18 and Rittenhouse was 17. (At 17 years of age, Rittenhouse was too young to purchase the rifle.)

On November 9, 2020, ABC 7 reported Black was arrested and placed in jail for allegedly buying the rifle for Rittenhouse.

ABC 7 cites an affidavit claiming Black allegedly took money from Rittenhouse, “then on May 1st he drove 300 miles north from Kenosha to a hardware store in upper Wisconsin to buy the [AR-15].”

The AP observed that the case against Black was weakened once Judge Bruce Schroeder, during the Rittenhouse trial, agreed to drop the charge that Rittenhouse possessed his rifle illegally at age 17.

On Friday, Black pleaded “no contest” to “contributing to the delinquency of a minor,” which is “non-criminal.” If Judge Schroder accepts the plea, Black will pay a $2,000 fine and all felony charges will be dropped.

Not that having a deep intellect – or any brains at all for that matter – is a requirement to be seated on the court.


Today’s deep question: Will Twitter suspend Sotomayor for COVID misinformation?

A wise axiom warns us not to deduce Supreme Court decisions based on the questions asked by its justices during oral arguments. Perhaps, however, we can deduce their relative wisdom and grasp of reality from the questions they pose. In today’s debate over the legality of the Biden administration’s vaccine mandates imposed by OSHA, a few of the justices appear to have little grasp of the current facts of the pandemic.

Justice Sonia Sotomayor led the way on misinformation. Sotomayor was hardly alone in causing jaws to drop, but she was the clear leader. The transcript isn’t yet available, but observers shared their amazement on Twitter. First, Sotomayor misses the rationale for a mask mandate entirely:

Ahem. COVID-19 is a respiratory illness. If it were a blood-borne disease, no one would need to wear a mask, and there would be little need for a vaccine mandate in workplaces. That’s rather basic to the question of whether OSHA’s vaccine/mask mandate serves a rational purpose for a legitimate state interest.

That, however, was only the start of the nonsense. Here are more of Sotomayor’s bon mots……………….

 

NSSF Sues New York AG for Violation of Constitution, PLCAA, and Due Process

On July 6, 2021, New York Governor Andrew Cuomo signed SB 7196 into law. The law is specifically designed to overrule the federal Protection of Lawful Commerce in Arms Act (PLCAA).

On December 16, 2021, the National Shooting Sports Foundation (NSSF) and 14 additional plaintiffs (including, I am glad to say, a local gun store, Sprague’s of Yuma, Arizona) sued the Attorney General of New York, Letitia James, to stop implementation of the law, designed to violate the Constitutional rights of all Americans. From the lawsuit:

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GOA SECURES VICTORY IN PHILADELPHIA HOMEMADE FIREARM CASE

PHILADELPHIA, Pa. — Yesterday, the Court of Common Pleas of Philadelphia County issued a preliminary injunction against the City of Philadelphia, halting the City’s enforcement of its recently enacted ordinances banning the making of homemade firearms and the use of 3D printers to make guns and gun parts. Gun Owners of America (GOA) sued the City in Pennsylvania state court last May, challenging the ordinances.

Yesterday’s injunction prohibits Philadelphia from enforcing several illegal and unconstitutional firearm restrictions, including a ban on individuals making homemade firearms, restrictions on selling or transferring “firearm finishing devices” and “unfinished frames and receivers,” and even a prohibition on the use of a 3D printer to create a firearm or “firearm attachment.”

GOA’s Senior Vice President, Erich Pratt, had this to say: “Fortunately, the state of Pennsylvania has a strong preemption law that explicitly protects the right to keep and bear arms, and prohibits localities like Philadelphia from enacting gun laws more restrictive than state law.” GOA’s lawsuit challenges the City’s ordinances on that basis, along with alleging state constitutional violations, including the right to keep and bear arms.

Yesterday’s victory follows closely on the heels of the win against Philadelphia that GOA reported back in October, when a federal court remanded GOA’s case back to state court, after Philadelphia had frivolously removed the case.

And, just a couple of weeks ago, GOA wrapped up another lawsuit against Philadelphia, after forcing the City’s Gun Permit Unit to begin issuing Licenses To Carry Firearms within the statutory deadline. Currently, the City is issuing carry licenses faster than at any time in its history.

While it is unfortunate that GOA (once again) has been required to bring suit in order to protect the right to keep and bear arms in the “City of Brotherly Love,” yesterday’s injunction is a victory for the City’s gun owners, who may now continue to exercise their constitutional rights to privately manufacture firearms for personal use, without fear of reprisal from the City of Philadelphia.

The Racial Justice Gambit

Racial justice has become a pawn in Second Amendment litigation. In New York State Rifle & Pistol Association, Inc. v. Bruen, both petitioners and respondents raised the racialized history of gun regulation to support their positions on the constitutionality of New York’s concealed carry licensing scheme. Moreover, groups from across the ideological spectrum filed amicus briefs touting racial justice arguments in support of both parties. The briefs offered competing views on what the history of race and guns in America portends for present day Second Amendment controversies. And both sides had differing takes on what loosening gun regulation would mean for Black people and other people of color today. As the briefing in Bruen shows, no matter what side of the ‘v.’ one finds themselves, there is a racial justice angle available to exploit.

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California gun owners sue state to block release of personal information

Last September, California Gov. Gavin Newsom signed a bill into law authorizing the release of gun owners’ personal information to researchers and others who’ve been given access to a state-run database that’s chock full of identifying details of those who legally own firearms. Now, several anonymous gun owners in the state have filed suit in federal court hoping to block Attorney General Rob Bonta from from enforcing AB 173 and its provision requiring the state’s Department of Justice to disclose the information to the California Firearm Violence Research Center at UC Davis and all other “research institutions” that request it.

The five gun owners, listed as Jane Doe #1 and John Does 1-4, argue in their complaint that the new law runs afoul of the U.S. and California Constitutions, as well as state law protecting the right to privacy, by granting researchers access to the state’s Automated Firearms System, which includes a lot of personal information; “name, address, place of birth, telephone number, occupation, California driver’s license or ID number, race, sex, height, weight, hair color, eye color, and, in some instances, social security number” according to the plaintiffs’ attorneys.

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Another New York Gun Rights Showdown
A lawsuit challenges Albany’s law against out-of-state firearm manufacturers and sellers.

Can New York target out-of-state businesses that make or market guns with “public nuisance” lawsuits if those guns are used in a crime? We’re about to find out, as 14 gun makers and sellers have challenged the state law’s constitutionality in federal court.

Albany passed the law in July, but it is part of a decades-long effort to make it too expensive for these companies to stay in business. Twenty years ago, as secretary of Housing and Urban Development, Andrew Cuomo characterized his anti-Second Amendment strategy as “death by a thousand cuts.” As New York Governor he signed the law before he resigned in disgrace amid multiple sexual harassment claims.

The New York law runs headlong into the federal Protection of Lawful Commerce in Arms Act of 2005, which is meant to stop this kind of state mischief. The plaintiffs challenging the state law claim that it violates the U.S. Constitution’s Supremacy Clause, which prohibits states from interfering with the federal government’s constitutional powers.
They also cite a violation of the Commerce Clause because New York is regulating gun sales outside the state while leaving most New York gun businesses unaffected. The suit throws in a Fourteenth Amendment due process claim because it says the law is “impossibly vague.”

A Memo of Law filed by the National Shooting Sports Foundation in support of the complaint adds that the statute “implicates the exercise” of “manufacturers’ and sellers’ First Amendment right to market firearms, and customers’ Second Amendment right to purchase them.” David Rivkin, a contributor to these pages on legal matters, says the New York law is akin to allowing people hit by a drunk who was driving a Mustang to sue Ford.

The Supreme Court has winked at this abuse by declining until recently this year to follow up its landmark Heller (2008) and McDonald (2010) decisions—which affirmed that the Second Amendment is an individual right enforceable against the states. The Court recently heard oral arguments in New York State Rifle & Pistol Assn. v. Bruen, about New York’s restriction on the right to carry a firearm outside the home.

The new challenge to Albany’s harassment of out-of-state businesses may offer the High Court another chance to reinforce the Second Amendment. Both laws deserve to be sent packing, constitutionally speaking.

Biden Judicial Nominee Said ‘Proof of Citizenship’ is ‘Voter Suppression’

A left-wing activist with ties to the American Civil Liberties Union (ACLU) and Southern Poverty Law Center (SPLC) nominated by President Joe Biden to be a federal judge has argued photo ID and proof of citizenship constitute “voter suppression.”

Nancy Gbana Abudu, the deputy legal director at SPLC, was picked by Biden in December to serve on the United States Court of Appeals for the 11th Circuit. The 11th Circuit covers parts of Alabama, Florida, and Georgia. The vacancy came about upon the retirement of Judge Beverly B. Martin — a President Barack Obama appointee.

Abudu worked for the ACLU from 2005 to 2019 and was an 11th Circuit staff attorney from 2002 to 2004. Along with U.S. District Judge J. Michelle Childs, she was part of Biden’s twelfth round of judicial nominees, according to a White House memo.

Biden put forth 75 judges in 2021. The memo states that his nominees “reflect the diversity” Biden “promise[d]” in courts and that Abudu “would be the first African-American woman judge ever to sit on the Eleventh Circuit.”

‘Voter Suppression’ Remarks

In a 2011 interview dug up by The Daily Wire, Abudu asserted that “95 percent” of her work with the ACLU at the time involved “voting rights.” She notably said “photo ID” and “proof of citizenship,” two long-established requirements to vote, are indicative of “voter suppression:”

Obviously, we do a lot when it comes to voter suppression, which includes five priority areas: photo ID, proof of citizenship, restrictions we see when it comes to registration … early voting as well as absentee voting and the restrictions we see when it comes to criminal convictions. We also do a lot with student voting.

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Texas AG gains federal injunction against another Biden vaccine mandate
Federal ruling halts COVID-19 protocol conditions for funding Head Start programs

Texas Attorney General Ken Paxton scored what he considered to be a “win for the children of Texas” after a federal judge ruled against vaccine and mask mandates for Head Start programs initiated by the Biden administration.

The ruling from Judge James “Wesley” Hendrix of the U.S. District Court Northern District of Texas orders a halt in required COVID-19 protocol conditions for the funding of Head Start programs.

The new rules issued last month require children over 2 in Head Start programs to wear masks, while the U.S. Department of Health and Human Services is requiring staff, contractors and volunteers in the program to be vaccinated by the end of January.

 

‘The right to self defense has just been reaffirmed’: Case dismissed in Staten Island Christmas Day death

STATEN ISLAND, N.Y. — A grand jury Thursday dismissed the case against a man accused in a fatal Christmas Day encounter in Concord.

The jury chose not to indict Emmanuel “E.J.” Diaz, 32, in the death of 36-year-old Rafael Ramos on charges that included second-degree murder, first-degree strangulation and criminal obstruction of breathing.

Diaz’s lawyer, Mark Fonte, said Sunday after his client’s arraignment that Diaz acted in self defense when Ramos came to his Clove Road apartment armed with a box cutter.

On Thursday, Fonte credited the office of District Attorney Michael McMahon for its professionalism and for presenting the facts of the case to the grand jury.

“The right to self defense has just been reaffirmed on Staten Island. An armed intruder entered my client’s residence Christmas morning and slashed my client’s face,” Fonte said. “He had every right to protect his wife, two small kids and himself. If self defense isn’t warranted here it would be a travesty.”

McMahon concurred.

“Following a thorough investigation of all of the facts and evidence in this case, my office presented that evidence fairly and impartially to the grand jury, as is our obligation and duty to the People of Staten Island,” he said.

“We regret the tragic circumstances that led to this incident culminating in the death of Mr. Ramos, and extend our deepest condolences to his family, who have suffered the loss of a loved one during this holiday season.”

In the moments surrounding the violence, multiple tenants in the Elbee Gardens Apartments in Concord called 911, stating a man armed with a sharp instrument — who turned out to be Ramos — was banging on apartment doors, an NYPD spokesman said Monday.

Some of Ramos’ family members said he would bounce between the apartment of his longtime girlfriend and their children in the same Concord apartment building, and a family member’s house in Dongan Hills.

Ramos’ mother said Monday her son was under the impression Diaz and his girlfriend were romantically involved.

She recalled that Diaz — who she described as a loving father, and her right-hand — recently had attended a child’s birthday party at Ramos’ apartment.

She added that her son had a contentious past with his girlfriend’s mother, including an altercation that had to be resolved in the court system. She noted that her son was known to have a temper.

Police said the altercation on Christmas Day between Ramos and Diaz occurred on the second floor of the building.

Diaz was slashed in the face while struggling with Ramos, but ultimately applied a choke hold that resulted in Ramos’ death, Richmond County prosecutors wrote in the criminal complaint. Ramos’ family said he was struck in the head with a nebulizer during the altercation.

Jalissa Carrasco, Diaz’s spouse, was there the day of the incident and outside the courthouse Thursday waiting to greet her husband. Diaz’s parents — Yamel Diaz and Mark Diaz — along with his friends and family —Tricia Jaccoma, Austin Willard, Angel Pagan, and Eddie Martinez — joined Carrasco outside the courthouse.

Diaz’s mother said that she was glad her son was coming home, but expressed remorse for the man who lost his life and his family.

Bruen Concealed Carry Case, What Impact Could It Have On “may issue” Jurisdictions

A ruling on New York State Rifle and Pistol Association vs. Bruen likely won’t be handed down until next summer, keeping many New York gun owners and applicants for concealed handgun carry licenses in limbo for months. And it will be months longer still for the State and the New York City Licensing Division to redraft its concealed handgun carry license Rules, assuming a Bruen ruling requires that to happen.

And what would be the impact of a ruling on Bruen in all other “may issue” jurisdictions?

Would those jurisdictions construe the rulings in Bruen narrowly or broadly: applicable to those jurisdictions as well, or as having no impact on them?

Given what we have seen to date, many jurisdictions blatantly ignore Heller whether the Heller holdings and reasoning are construed broadly or not.

So, why then would or should one expect other “may issue” jurisdictions to give Bruen any credence?

They ought to, of course. The right of armed self-defense, as a natural right, is not to be taken lightly in the United States, even as it goes unrecognized in other western nations, including the Commonwealth Nations and countries of the EU. And it is unrecognized by the UN, as we pointed out in prior articles.

The breadth and depth of High Court rulings are not to be considered a matter of academic interest to legal scholars and legal historians only—as rulings to be adhered to or not, or as stringently or not, as this or that lower Federal and State Court wishes.

U.S. Supreme Court holdings often do have or should have, real impact on our Nation even as many jurisdictions routinely misconstrue them. But is this inadvertent or not? Do these jurisdictions deliberately twist, contort and distort Second Amendment Heller and McDonald holdings and reasoning they don’t like?

Do these jurisdictions alter Heller and McDonald rulings and reasoning to suit their personal fancy about guns and gun possession, thus allowing Anti-Second Amendment agendas can continue to be pursued, unimpeded? It would seem so.

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California mag ban on hold, awaiting SCOTUS review

The Ninth Circuit Court of Appeals has agreed to stay its decision upholding a California gun control law prohibiting the possession of ammunition magazines that can hold more than ten rounds while the case is appealed to the Supreme Court. The decision, which was anticipated by the plaintiffs in the case, became official on Monday, and gives the attorneys representing the gun owners who are challenging the law time to officially file their cert petition with the Court.

If the cert petition is filed within 150 days (which will absolutely happen), then the Ninth Circuit will keep the stay in place until the Supreme Court decides what, if anything, to do with the gun control law, which has been overturned and upheld at various points in its long and winding road to Washington, D.C.

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Will SCOTUS Accept Challenge To Maryland Ban On “Assault Weapons”

The Supreme Court is set to issue a major opinion on the right to bear arms next year, but Second Amendment advocates and gun owners are hoping that won’t be the only 2A-related topic that justices address in the coming months. On Thursday a coalition of gun rights groups and individual plaintiffs filed a petition for certiorari with the Court in the case of Maryland’s ban on modern sporting rifles; one of several that have been upheld by appellate courts around the country.

The Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms (full disclosure: I serve as an unpaid member of CCRKBA’s board), the Firearms Policy Coalition, and several individuals are arguing that the lower court decisions upholding state-level bans on AR-15s and other semi-automatic rifles have abused the Court’s decisions in Heller and McDonald, with the Fourth Circuit’s defense of Maryland’s gun ban representing “the most extreme” example of the practice.

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Glock, Smith & Wesson Sue N.Y. AG James Over Gun Liability Law

Glock Inc., Beretta U.S.A. Corp., Smith & Wesson Brands Inc. and other gun makers filed a federal lawsuit challenging a controversial New York statute that gives the state the ability to sue firearms manufacturers and sellers over gun violence.

The companies, along with the National Shooting Sports Foundation, allege in a suit filed Thursday in federal court in Syracuse that New York passed the law in July with the “express purpose” of circumventing Congress and trying to regulate tens of thousands of businesses operating in every state.

The gun companies allege the law clashes with the federal Protection of Lawful Commerce in Arms Act of 2005, which prohibits most lawsuits against firearms manufacturers over violence by people who use their products. Several legal attempts by New York to sue the industry have failed.

The suit, filed against New York Attorney General Letitia James, alleges the state “is now trying to accomplish through legislation what it was unable to accomplish through litigation.”

James, a Democrat who has frequently clashed with the gun industry and is suing to dissolve the National Rifle Association over allegations of financial fraud, said she’ll fight the suit.

“Once again, the gun lobby is trying to exert total control over this country and thwart common-sense efforts to protect lives,” James said. “Make no mistake: We will aggressively defend this law and won’t back down against their continued attempts to endanger New Yorkers.”

James also took aim at the 2005 federal law, saying Congress had usurped state rights and given gun manufacturers and distributors “blanket immunity for gun violence perpetrated as a direct result of their marketing and distribution of firearms.”

Other companies in the New York suit include Sig Sauer Inc. and Central Texas Gun Works LLC.

The case is National Shooting Sports Foundation Inc. v. James, 1:21-cv-01348, U.S. District Court Northern District of New York (Syracuse).