Category: Courts
Colorado Supreme Court Rules Elephants Are Not Human and Must Stay in a Zoo.
One of these days, one of these animal rights nutcases will come before an equally nutty judge and win a case that frees some wild animal from a zoo.
Fortunately, that day has not yet arrived. The Colorado Supreme Court ruled 6-0 on Tuesday that six elephants in the Cheyenne Mountain Zoo cannot be transferred to an elephant sanctuary based on the legal theory that they have the same rights as human beings.
The court said the decision “does not turn on our regard for these majestic animals.”
“Instead, the legal question here boils down to whether an elephant is a person,” the court said. “And because an elephant is not a person, the elephants here do not have standing to bring a habeas corpus claim.”
You have to admit that it’s a very clever fundraising strategy by the Nonhuman Rights Project, which has sued a dozen times over the last decade trying to free elephants and chimpanzees from various zoos. They haven’t once been successful, but that doesn’t matter as long as the cash keeps coming in.
The elephants — Missy, Kimba, Lucky, LouLou and Jambo — had no intelligible comment.
That doesn’t mean they can’t communicate. Researchers have discovered an incredible number of sounds that elephants make at an amazing number of frequencies. We don’t know what they’re saying, of course, but that it’s a sophisticated example of cognitive thinking is undeniable.
However, until elephants can submit a legal brief on their own, they are out of luck in American courts.
Do rights granted under the U.S. Constitution end at the border of one state when a citizen enters another? Generally speaking, no. The privileges and immunities clause of Article IV, Section 2, of the Constitution says that citizens of one state are “entitled to all Privileges and Immunities of Citizens” in other states. This includes the right to travel for employment and recreation. However, there are limitations.
The scope of the Second Amendment’s right to keep and bear arms for self-defense across state lines is the issue at the heart of a case filed on January 7, 2025, against Bob Jacobson, in his official capacity as commissioner of the Minnesota Department of Public Safety.
The complaint challenges Minnesota’s refusal to recognize lawfully issued firearms permits of other states, including those held by plaintiffs David McCoy and Jeffrey Johnson in their home states of Texas and Georgia, respectively. Johnson also holds a permit from Florida, where he used to live.
The plaintiffs are professional long-haul 18-wheel truck drivers who crisscross the country, 300 days a year. According to the complaint, both maintain firearm competency with safety courses and memberships in various firearms organizations. Each regularly passes background checks required by their employment. Neither has any history of violence, felony convictions, or class one misdemeanors. Their backgrounds include experience as firefighters and emergency medical technicians.
The men consider themselves good Samaritans, their “personal ethos” impelling them to “make the road a little safer” by “helping stranded motorists, coming to the aid of accidents, assisting law enforcement and emergency workers.”
While driving, McCoy and Johnson regularly carry firearms for the purposes of self-defense, as well as defense of others, their home, and cargo. But whenever they reach the Minnesota border, Minnesota law requires them to unload their firearms and stow them in a closed, fastened container, rendering them not readily accessible. Other states have analogous restrictions.
2A Breaking: SCOTUS just relisted Snope and Ocean State Tactical as expected for January 24. We need a cert grant by midnight January 24 or we are toast for this term imho
— Mark W. Smith/#2A Scholar (@fourboxesdiner) January 21, 2025
What SCOTUS doesn't have much time for: most Second Amendment questions, even though they have taken very few such cases in their history.
What SCOTUS does have time for: pic.twitter.com/FpwnydnvO1
— Kostas Moros (@MorosKostas) January 17, 2025
Supreme Court Second Amendment Update 1-17-2025
In my last update, I wrote, “If a cert petition reaches its scheduled conference date without a justice requesting a response, then we know it was placed on the deadlist and never voted on. It was simply denied.” That remains true. Every Second Amendment cert petition that went into last Friday’s SCOTUS conference, where the respondents had either filed a waiver or did not file any response, was denied. In one case, the Feds asked for the cert petition to be granted, the lower court’s decision vacated, and the case remanded (GVR’d) back to the lower court for proceedings consistent with US v. Rahimi. With only one exception that I can recall when the Feds ask for a GVR, they get it.
I also wrote The “assault rifle” and “large capacity” magazine cert petitions were today relisted to this Friday’s SCOTUS conference of January 10th.” They survived that conference and were relisted to today’s conference. We won’t know until Tuesday whether they and the other petitions scheduled for today’s conference survived.
A response was requested for one of the petitions scheduled for today’s conference, but the Second Amendment was just one of three questions presented to the justices. I suspect that one of the other questions (most likely question 3) in Jarvis Parker, Petitioner v. Florida No. 24-6146 resulted in a response being requested.
In any event, when a justice requests a response after a waiver has been filed and the response hasn’t been filed before the petition goes to its scheduled conference, the petition survives that conference.
Last Friday’s SCOTUS conference resulted in 13 denials, 1 GVR, and two relists.
The petitions that were scheduled for today’s conference are:
This Gun Store Owner Just Forced the ATF to Reverse an Anti-Gun ‘Zero Tolerance’ Policy
Score another victory for gun rights. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has reversed its “zero tolerance” policy created under the Biden administration to infringe on the right to keep and bear arms.
The policy allowed the ATF to revoke the licenses of firearms dealers who make common clerical errors on their paperwork. Several small gun shops have been forced out of business because of the rule.
Michael Cargill, owner of Central Texas Gun Works, joined with the Texas Public Policy Foundation (TPPF) in a lawsuit against the White House over the unconstitutional measure. The Biden administration capitulated before the lawsuit could be decided in the courts and reverted back to the previous policy, which only allows the ATF to revoke licenses for “willful” offenses, not small clerical errors, according to a press release issued by the TPPF.
SCOTUS Rejects Multiple Second Amendment Cases, Relists Gun Ban Challenges
On a day when gun-rights advocates hoped that the Supreme Court would announce its next big Second Amendment case, it only informed them which ones it was turning away.
On Monday, the High Court denied petitions for certiorari in Maryland Shall Issue v. Moore and Gray v. Jennings. The cases challenged Maryland’s handgun-purchase licensing requirements and the preliminary injunction standard set in the case against Delaware’s sales ban on “assault weapons” and “large-capacity” ammunition magazines.
None of the justices wrote separately to explain or dissent from the denials.
Monday’s orders list dashes the hopes of gun-rights activists looking to overturn lower court decisions upholding the gun-control laws in question. It continues the Supreme Court’s recent streak of rejecting Second Amendment petitions, even as it agrees to hear government requests for review of decisions striking gun laws down. It could fuel further concern among gun-rights activists about the Court’s resolve to expand on the standard it set in 2022’s New York State Rifle and Pistol Association v. Bruen and address state-level gun bans or several other of its longest-standing constitutional concerns.
However, the Court left open the possibility it would take some of the highest-profile gun cases still pending before it. The Court relisted two other closely watched Second Amendment cases, Snope v. Brown and Ocean State Tactical v. Rhode Island, to be considered again at this Friday’s conference. That keeps gun-rights supporters’ hopes alive for a Supreme Court grant of review of state bans on so-called assault weapons and large-capacity magazines.
With no guidance on how the justices feel about those two cases and the possibility that the Court could relist them multiple times before deciding whether to take them up, those wondering about the future of Second Amendment jurisprudence face an uncertain timeline for further clarity. Still, Monday’s order list indicated what areas of gun law the Court won’t expound upon for the foreseeable future.
This isn’t “Doooooom!”.
The Machine Gun Win Now Before the 10th Circuit Court of Appeals
United States v. Morgan (24-3141)
Charles Nichols
Last August, Federal District Court Judge John W. Broomes issued two findings. The first was that the two machine guns the defendant was charged with illegally possessing are ““bearable arms within the original meaning of the [Second” amendment.” The second was “the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant.”
Judge Broomes then dismissed the charges. The Federal government filed a timely appeal, and filed its opening brief on appeal on December 12th. On December 29th, the Brady Center to Prevent Gun Violence filed an Amicus brief in support of the government. On Monday, January 6th, the Defendant filed a disfavored (but unopposed) motion for a thirty-day extension to file his answering brief on appeal. The motion was granted the same day. I am reliably informed that an Amicus brief will be filed in support of the Defendant.
Judge Broomes also said that some kinds of machine guns are not arms protected by the Second Amendment, and his decision says nothing about what restrictions or prohibitions the government could place on the carrying (bearing) of machine guns because the Federal law only makes it a crime to possess unregistered machine guns, not carry them.
Additionally, this is an interesting case because the case was prosecuted in the district court, and the opening brief on appeal was filed by the Biden administration. The reply brief and all further proceedings from January 20th onward will be by the Trump administration. The Trump DOJ attorney can simply acquiesce in the case, meaning he can concede that the law is unconstitutional but assert that President Trump will continue to enforce the law, including in this case. The latter is particularly important because if the President does not aver that he will continue to enforce the law, including against the Defendant, then the Court of Appeals could simply dismiss the appeal without deciding the case for lack of a “live case or controversy.”
Putting machine guns to the side for the moment, this quote from the Defendant’s motion for an extension of time is particularly telling, “The government’s brief is 36 pages long. The table of authorities is an additional 15 pages long and includes citations to roughly 200 cases, statutes, and legal texts. Many of the sources relied on by the government are hundreds of years old and were not cited by the government in the district court.”
The Federal criminal court system is rigged against defendants. Had the Defendant’s attorney failed to cite authorities or make properly worded objections in the proper manner at the appropriate time(s) in the trial court, then his failure would be subject to what is called “plain error review” on appeal, and he would almost certainly lose.
Will the 10th Circuit Court of Appeals afford the Federal government a more deferential standard of review? Will the Court of Appeals contrive some way around the NYSRPA v. Bruen mandate that the burden of proof lies with the government?
Time will tell. The appeal should be fully briefed in two months, after which the Court of Appeals can make a decision at any time.
You can read many of the briefs for free from CourtListener at the following links.
United States v. Morgan (24-3141) 10th Circuit Court of Appeals Docket.
United States v. Morgan (6:23-cr-10047) District Court, D. Kansas Docket.
Lawsuit Challenges Minnesota’s Gun Permit Restrictions For Truckers
The Liberty Justice Center filed a federal lawsuit on Tuesday challenging Minnesota’s refusal to recognize firearm permits from other states, a policy the nonprofit argues violates the Second Amendment rights of interstate truck drivers.
The lawsuit, McCoy v. Jacobson, was filed in the U.S. District Court for the District of Minnesota on behalf of two truckers, David McCoy and Jeffrey Johnson, who claim the law infringes on their constitutional right to bear arms while working across state borders.
David McCoy, a Texas-based trucker, and Jeffrey Johnson, who holds firearm permits from Florida and Georgia, both legally carry firearms for self-defense in many states. However, Minnesota law prohibits them from carrying firearms in public or in their trucks without a Minnesota-issued permit or one recognized by the state.
Minnesota currently excludes permits from 29 states, including Texas, Georgia, and Florida, leaving McCoy and Johnson unable to legally defend themselves while in the state.
SCOTUS Distributes 2A Cases for Friday Conference
The U.S. Supreme Court has distributed a couple of important Second Amendment cases for conference this Friday, and all eyes will be watching to see whether oral arguments are scheduled as a result.
According to SCOTUSblog, the cases of Snope v. Brown and Maryland Shall Issue v. Moore both challenge Maryland’s restrictive gun control laws.
Snope is a case brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, the Firearms Policy Coalition, and private citizen, David Snope. It challenges Maryland’s ban on so-called “assault weapons” and this would be the third time the case has been brought to the high court for review.
SAF, CCRKBA and FPC contend the ban is unconstitutional on the grounds that the Second Amendment makes no distinction between the types of “arms” it protects. The modern semiautomatic rifle, epitomized by the AR-15 and its clones, is the most popular rifle in America. Millions are owned and used b y law-abiding citizens for hunting, competition, recreation, predator control and personal and home defense.
According to a SAF news release Tuesday, “SAF sought cert after the Fourth U.S. Circuit Court of Appeals ruled en banc that the modern semiautomatic rifles banned by Maryland fall outside the protection of the Second Amendment because they are too similar to military arms. SAF and its partners contend this reasoning “is becoming a commonplace misapplication” of Supreme Court precedents established by the 2008 Heller ruling, 2010 McDonald decision and 2022 Bruen decision.
“Snope provides the Supreme Court with an excellent vehicle to correct the widespread misapplication of the Court’s precedent regarding these firearms and the Second Amendment, itself,” said SAF Executive Director Adam Kraut. “The case is on appeal from final judgment with an en banc decision of a circuit court. Moreover, the specific type of firearm in question is commonly owned across the country, placing it well within the scope and protection of the Second Amendment. By granting cert in Snope, the high court can help settle the matter once and for all.”
Moore challenges Maryland’s licensing requirement to even own a gun. As noted by SCOTUSblog, “Moreover, they contend that Justice Thomas’s footnote in Bruen was limited to licenses to carry guns in public and does not apply to laws, like Maryland’s, which require a license to own a gun at all. But in any event, the challengers argue that the state’s requirements are “abusive” because they collectively impose an excessive delay: up to a month for a background check to obtain a license, up to a week for a second background check to purchase a gun, and additional time to complete a firearm-safety course.”
This case should have the attention of gun rights activists and anti-gunners in Oregon and Washington, where the effort is ongoing to require people to get a permit to purchase from the police prior to being able to buy a gun.
If the Court grants certiorari in these cases, the outcome could have a devastating effect on gun control in the United States. Several states have banned so-called “assault weapons,” and a ruling that modern semi-autos are protected by the Second Amendment would almost certainly nullify those bans.
Another case up for consideration is Gray v. Jennings, involving SAF, FPC and others, challenges a ban on so-called “assault weapons” and “large-capacity magazines” in Delaware. There is no small irony in this case, as it seeks to undo a gun control law in the home state of departing President Joe Biden, a career gun control proponent who leaves the White House Jan. 20 as former President Donald Trump returns for a second term.
Appeals court makes ruling on St. Louis County prosecuting attorney appointment
An appeals court sided with Missouri Gov. Mike Parson over St. Louis County Executive Dr. Sam Page on who can appoint the St. Louis County prosecuting attorney, ending a month-long legal battle.
In a ruling Thursday, the circuit court’s judgment was affirmed.
Parson’s pick for prosecuting attorney, Melissa Price Smith, a St. Louis County assistant prosecuting attorney and supervisor for the office’s Sexual Assault and Child Abuse team, will replace outgoing prosecutor and Congressman-elect Wesley Bell.
Price Smith will be sworn in as St. Louis County prosecuting attorney and Bell will be sworn into Congress on Jan. 3.
On Dec. 20, a St. Louis County judge ruled that Parson had the power to replace the prosecuting attorney. The court order barred Page from “taking any further steps to fill the anticipated vacancy.”
Page had filed an appeal on Dec. 27 against the ruling.
The Most Dangerous ‘Gun Control’ Argument You Will Ever Read
We don’t make this statement lightly, but the folks over at Giffords and Brady have filed an amicus brief in a matter, challenging all of Maryland’s new sensitive places, that actually argues that the First Amendment and the Second Amendment cannot coexist, and because of that, the 2A will always take a back seat to the 1A. Washington Gun Law President, William Kirk, discusses one of the craziest and most dangerous pro-gun control argument you could ever imagine in the matter of Kipke v. Moore (aka Novotny v. Moore). So learn more today and arm yourself with education.
<(You can find the Amicus Brief here.)
Another City Learns The Hard Way About Preemption.
It seems like every time I look at the news, I see another city, whether in Pennsylvania, Tennessee or somewhere else, having to take a big loss in the courtroom to accept the fact that state firearms preemption laws mean what they say. The latest was Fargo, North Dakota, where city leaders apparently decided they could make their own gun laws, despite the state preemption law saying the opposite.
According to a report from NRA’s Institute for Legislative Action (NRA-ILA), on December 19, the North Dakota Supreme Court upheld a lower court ruling dismissing a lawsuit brought by the city of Fargo against the state legislature to block a bill passed back in 2023 that strengthened the state’s preemption law.
According to NRA-ILA, Fargo has banned gun sales in residential-zoned areas, even by licensed FFLs, for many years. The city filed suit against HB 1340 shortly after the bill passed in 2023, arguing that the law violated their ability for local control.
Of course, the new law did violate their ability for local control. That’s exactly what the legislature had intended for it to do. In the recent ruling, the state Supreme Court found that infringing upon the Second Amendment does not fall under the purview of local control, much to the chagrin of Fargo leaders.
“HB 1340 enhances North Dakota’s firearm preemption law, stating that the Legislature is the sole authority in the state allowed to regulate firearms,” NRA-ILA wrote. “This prevents localities, like Fargo, from creating a confusing patchwork of gun laws in the state and ensures that citizens enjoy the same abilities to exercise their Second Amendment rights across the whole state.”
In its ruling, the court determined that the preemption law is constitutional, leaving Fargo out in the cold with its gun sales ban.
“We conclude H.B. 1340 does not violate article VII of the North Dakota Constitution,” the ruling stated. “We hold the legislature’s enactment of H.B. 1340 constitutes a valid exercise of its constitutional authority to create political subdivisions and, specifically, to define the powers of a home rule city. We conclude H.B. 1340, as enacted, is constitutional as applied to Fargo’s home rule charter and Fargo Municipal Code §§ 20-0403(C)(5)(e) and 20-402(T)(3). Due to this holding, we need not address Fargo’s argument H.B. 1340 and N.D.C.C. §§ 40-05.1-06 and 62.1-01-03, as amended, are facially unconstitutional.”
In the end, the court ruling stated: “The district court did not err in concluding H.B. 1340 preempts and renders void Fargo Municipal Code §§ 20-0403(C)(5)(e) and 20-402(T)(3). We affirm the judgment.”
The Final Two 9th Circuit Gun Decisions of 2024
Yesterday, Monday, December 30, 2024, the 9th Circuit Court of Appeals published its final two decisions in cases involving guns.
The first decision involved the Federal law that permanently disbars persons convicted of misdemeanor domestic violence from possessing firearms, and the second involved a dispute over what constitutes an arrest when police see a handgun on the floor of an automobile in a state where that is legal.
The first decision is well written and meticulous and leaves no question as to why the three-judge panel reached its decision, a decision they would rather have gone the other way were it not for binding prior precedents.
The second decision does not explain why it reached its conclusion, and more importantly, the decision does not explain how future three-judge panels and district court judges are to comply with what is now a binding circuit precedent. Moreso, given that the facts laid out in the decision do not justify the panel’s conclusion under already binding prior 9th circuit precedents.
First, the well-written decision by 9th Circuit Court of Appeals Judge Morgan B. Christen. She is certainly no friend of the Second Amendment, but if there were a candidate for the most intelligent Court of Appeals judge, she would be the one to bet on. The case is US v. Michal Blake DeFrance No. 23-2409.
The first three paragraphs of the opinion summary succinctly describe the case’s what and why, but I will take a stab at an even simpler explanation. In short, if one is convicted of a state law crime of domestic violence, and that state law crime is broader than the Federal definition, even if the state has never prosecuted someone under the broader definition, then the conviction does not qualify as a crime of domestic violence under Federal law. Not even if the crime one committed, such as beating one’s wife or girlfriend, does qualify as a crime of domestic violence under Federal law. You can view the oral argument below.
You can read the opinion (and concurrence) at this link.
The second case is US v. Larry Send In. The opinion is by Judge Gould and was joined by 9th Circuit Court of Appeals Judge Bumatay and District Court Judge Michael Seabright, the latter of whom is no friend to the Second Amendment.
A fun fact about the Fourth Amendment is that from 1833 to 1961, it did not apply to the states. That did not mean police could stop, search, and/or arrest anyone they wanted. Under American common law, which we inherited from English common law, one could use force, including deadly force, to resist an unlawful arrest. That was the rule in California until 1957 when the California legislature repealed that centuries-old common law right. The California Supreme Court upheld the repeal in 1970.
Incorporating the Fourth Amendment right against the states in 1961 means the courts have had far more opportunities in 64 years to poke holes in the right. The decision in this case is yet another hole punched in the right.
Another fun fact is that California once had a bright-line rule. If you were stopped by the police and not free to go, you were under arrest.
The Federal Courts invented the notion that one can be stopped and handcuffed without it being an arrest. It is a “detention,” in which cases often turn on whether or not the detention was lawful and, in this particular case, at what point an arrest occurs. The California Supreme Court has abandoned its bright-line rule for the murky waters of the Federal Courts.
Of course, police forces as we know them today did not exist in the United States until the early 20th century. Before World War II, most arrests were made by private citizens, and private citizens likewise made most criminal prosecutions.
It was not until the 1970s that the US Supreme Court gave prosecutors and judges “absolute immunity” from civil prosecution in the Federal Courts, but I digress.
Under modern Fourth Amendment jurisprudence, judges look to the totality of the facts in making their decisions. In this case, the district court judge suppressed the gun found in Mr. In’s car, but the panel reversed. Why? I don’t know. Professor Shaun Martin at the University of San Diego School of Law doesn’t seem to know either. He wrote about the case on his blog.
When you read the decision, keep in mind that lying to a police officer is not in and of itself a crime, and Mr. In’s lying to police about having a gun in his car was not probable cause for an arrest, according to the panel. Indeed, none of the facts of the case viewed in isolation or the totality of the circumstances constituted probable cause for an arrest, and if Mr. In had, in fact, been arrested instead of detained for officer safety, then the gun would have been suppressed.
Neither police officer safety nor public safety is a magic talisman. But despite this decision conflicting with prior circuit precedents, it is doubtful that an en banc petition will be granted in this case. There are just too many judges in the 9th Circuit Court of Appeals who don’t care a fig about the Fourth Amendment, especially when the case involves guns.
You can view the oral argument below.
You can read the opinion at this link.
The January 6 prisoners strike back with a $50 billion lawsuit
I am one who believes that the events on January 6 were a set-up. Democrats knew that Trump supporters would be flooding D.C., so they withdrew law enforcement, removed physical guardrails, seeded the crowd with provocateurs, trusted the press of people to steer innocents into trouble, and then used a weaponized Justice Department to destroy people who showed up on January 6 and found themselves near the Capitol. That’s why I happen to think the planned $50 billion class action J6 prisoner lawsuit is a good idea to expose the government’s role in J6.
Take That! Court Tells Biden Admin to Quit Selling Border Wall Materials
Joe Biden is thankfully on his way out, but as he prepares to evacuate the Oval Office and head back to the Delaware beach, he keeps throwing out obstacles for incoming President-elect Donald Trump.
In one of the Biden administration’s more craven moves, they’ve been busy selling off equipment and supplies for the border wall that Trump promised during his first term, which Joe ended when he took office.
Well, take this Christmas present, Joe and Co:
The Biden administration on Friday said it would stop selling off materials slated to be used to build a border wall ahead of the incoming Trump administration, which has promised to bring back tougher efforts to combat illegal immigration.
The Biden administration confirmed to a court that it will agree to a court order preventing it from disposing of any further border wall materials over the next 30 days, allowing President-elect Trump to use those materials, Texas Attorney General Ken Paxton said.
Trump hailed the victory on Saturday:
Meanwhile, Texas Attorney General Ken Paxton let his feelings be known on Friday:
This follows our major victory forcing Biden to build the wall, and we will hold his Administration accountable for illegally subverting our Nation’s border security until their very last day in power, especially where their actions are clearly motivated by a desire to thwart President-elect Trump’s immigration agenda.
Mate v. Westcott – FPC Law Challenge to Louisiana Non-Resident Carry Ban
LAKE CHARLES, La. (December 23, 2024) — Firearms Policy Coalition (FPC) announced Monday that it has filed a new federal lawsuit challenging Louisiana’s ban on firearm carry by non-residents. The complaint in Mate v. Westcott can be viewed at firearmspolicy.org/mate.
“Closing off nonresidents’ ability to obtain a carry license substantially infringes their constitutionally protected right to carry a firearm in public for self-defense,” the complaint says. “There is no well-established and representative historical tradition of restricting the ability to bear arms based on residency.”
“Peaceable people have a constitutionally protected right to carry firearms throughout the United States,” said FPC President Brandon Combs. “Second Amendment protected rights don’t end at a state’s border. This case is an important step towards achieving our goal of restoring the right to bear arms everywhere.”
The Mate v. Wescott case is part of FPC’s high-impact strategic litigation program, FPC Law, aimed at eliminating immoral laws and creating a world of maximal liberty. FPC is joined in the litigation by two FPC members. FPC thanks FPC Action Foundation for its strategic support of this FPC Law case.