Category: Courts

Texas gun shop owner sues ATF, accuses agency of abusing federal law

Central Texas Gunworks owner Michael Cargill has filed a federal lawsuit agains the Bureau of Alcohol, Tobacco, Firearms, and Explosives alleging that the government agency is abusing its powers under the Gun Control Act of 1968 to shut down federally licensed firearm retailers for minor clerical and paperwork errors; a practice that Cargill’s attorneys say ignores the actual law.

According to the text of the GCA, the ATF has to find evidence of “willful” misconduct on the part of these FFLs; something that Cargill and his attorneys say is missing from many of the recent revocation notices the ATF has been handing out.

According to the lawsuit, the new policy under President Biden’s team at ATF has turned longtime record-keeping requirements that are supposed to prevent criminals and other dangerous people from buying guns into a weapon against the firearm industry.

“The act allows the federal government to revoke gun dealers’ license to sell firearms — commonly called federal firearms licenses or FFLs — when dealers willfully violate federal or state gun laws,” Mr. Curtis said.

In a statement to The Washington Times, the ATF said it would not comment on specific litigation but defended the agency’s use of the Gun Control Act.

An ATF spokesman maintained that the agency can only revoke a license for “willful violations” of the Gun Control Act.

“The GCA does not define ‘willful,’” the spokesman said, citing a statement from its website. “Federal courts have held that a willful violation of the GCA’s regulations occurs when the FFL commits the violation with an intentional disregard of a known legal duty or with plain indifference to their legal obligations.”

For decades, Cargill says, license revocations were an “exceedingly rare” step reserved only for the “worst actors,” noting, for instance, that in 2013 the ATF recommended license revocations for just 81 of the more than 10,000 shops that were inspected. Starting in the summer of 2021, however, things changed, and Cargill points to Joe Biden’s White House announcement that the GCA would be enforced against “rogue” gun dealers, even those who never willfully intended to make minor paperwork mistakes.

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An in depth and surprisingly ‘even handed’ look at the new Oregon gun control law.

Can the lawsuit trying to block Oregon’s new gun laws actually succeed?

PORTLAND, Ore. (KGW) — While votes were still being counted after Election Day this month — and well beyond — the fact that gun control initiative Measure 114 was projected to narrowly pass proved enough for some of Oregon’s arcane administrative mechanics to begin churning.

According to the Secretary of State’s office, laws passed via initiative petition like this one go into effect precisely one month after the election: midnight on Thursday, Dec. 8. Even the authors of Measure 114 said that they thought it would become effective a month after the vote was certified.

When and if Measure 114 becomes law in its current form, it would require a permit in order to buy a gun. Buyers would have to get a permit that’s expected to cost around $65 and complete an approved firearms safety course, which would also likely come at a cost. The permits also require submission of a photo ID, fingerprinting and a criminal background check.

Permit applications would be handled by the local police department or county sheriff’s office, and Oregon State Police would handle background checks — which they already do for firearms purchases. All of that information would then go into a database.

Measure 114 also bans the sale of magazines that hold more than 10 rounds.

Immediately after the measure passed, a few Oregon sheriffs released statements about their feelings on the matter. Most were critical of the measure, but a few took that a step further and said that they refused to enforce certain aspects of it — also expressing hopes that a lawsuit would block the law before it could go into effect.

The short timeline between Election Day and the Dec. 8 effective date meant that an inevitable legal challenge to Measure 114 would need to coalesce quickly. And it did, less than two weeks after the election.

On Friday, a Marion County gun store owner, the Sherman County Sheriff and a group called the Oregon Firearms Federation filed a lawsuit. It argues that the new law violates the Second Amendment to the U.S. Constitution, taking special aim at the magazine capacity portion of the law.

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Christian v. Nigrelli – FPC Law 2A Challenge to New York “Sensitive Location” Carry Bans

Summary: Federal lawsuit challenging “sensitive location” carry bans in New York as unconstitutional under the Second Amendment.

Plaintiffs: Brett Christian, Firearms Policy Coalition, and Second Amendment Foundation

Defendants: New York State Police Superintendent Steven Nigrelli and Erie County District Attorney John Flynn

Litigation Counsel: David Thompson, Peter Patterson, John Tienken, and Nicolas Rotsko

Docket: W.D. NY case no. 1:22-cv-00695 | CourtListener Docket

 

The Supreme Court grants cert for trademark lawsuit over chewable dog toy designed to mimic Jack Daniel’s whiskey bottle

 

Now accepting the point that trademark law is an important part of U.S. business, I still find it near ridiculous that SCOTUS will take such a case, and give it the same consideration, and time, that is given any other case they decide to take, instead of likely bypassing one or more of the 2nd amendment cases that undoubtedly come their way during the current session.

I mean…a doggie toy?

Jack Daniel’s Seeks to Take Dog Toys Battle to Supreme Court

Nov. 20, 2020 [NOTE THE DATE! SCOTUS has had this for two years!

Along with weighty matters of state like the presidential election and the future of health care, the U.S. Supreme Court’s tasks could include deciding whether trademark law has an exemption for potty humor.

Jack Daniel’s Properties Inc. is petitioning the high court to reverse a ruling by the U.S. Court of Appeals for the Ninth Circuit that a maker of dog toys could sell one shaped like the company’s familiar whiskey bottles. The appeals court held that VIP Products LLC’s pun-laden chew toy expressed a humorous message, involved the First Amendment, and satisfied the so-called Rogers test for incorporating trademarks into creative works.

That upset a balance between trademark law and free speech by dramatically and baselessly over-extending the Rogers test for evaluating trademark use in “artistic expression,” Jack Daniel’s and trademark groups argue. VIP Products this week secured a four-week extension of its Wednesday deadline to file a response asking the high court to reject the Jack Daniel’s petition.

The Ninth Circuit’s interpretation “would completely gut the trademark and dilution statutes,” trademark attorney James H. Donoian of McCarter & English LLP said. He said he couldn’t understand the basis for the dog toy being deemed an artistic expression, bristling at the court finding mere “humor” to be enough.

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Analysis: The Supreme Court Probably Won’t Save Non-Violent Felons’ Gun Rights

A federal appeals court has upheld the ban on non-violent felons owning guns using some questionable reasoning, but don’t expect the Supreme Court to intervene.

The Third Circuit found the ban is consistent with the nation’s historical tradition of gun regulation in the United States, as required by the Supreme Court’s standard in New York State Pistol and Rifle Association v. Bruen. The Third Circuit took something of a scattershot approach to justifying its decision, relying on evidence with varying degrees of

In 1995, Bryan Range was convicted of defrauding the government out of $2,458 in food stamps. He never served a day in prison. However, his non-violent crime was punishable by up to five years in jail. So, under the Gun Control Act of 1968, he has been barred from buying or even possessing guns for life.

The Third Circuit said this permanent prohibition has several historical analogues. It started by citing 17th and 18th-century English bans on gun ownership by disfavored religious groups, especially Catholics. While those bans did survive to the early American republic, the Court argued they demonstrated that the tradition of disarming people based on their inclusion in a group perceived as dangerous, even if they haven’t committed any violent crimes, is deeply rooted.

It went on to cite a handful of bans on disfavored racial groups owning guns during the founding era as evidence this idea was popular in America as well.

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms,” the court’s per curiam opinion reads. “Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence.”

The Third Circuit did not invent this line of thinking. Justice Amy Coney Barrett cited the concept in her Kanter dissent, although she came to the opposite conclusion about the constitutionality of gun bans for non-violent felons. But it would be rather disturbing if the legal underpinning for some of the nation’s most significant gun laws, which continue to be disproportionately enforced against minorities, were justified by explicitly bigoted historical laws.

Frankly, I doubt the Supreme Court would actually buy this analysis, given how thoroughly it has rejected racist gun laws from America’s past in its Second Amendment rulings thus far. Instead of viewing them as viable historical analogues for understanding the limits of Second Amendment protections, it has used them as examples of infringements on Americans’ gun rights that help illuminate the expansive nature of those protections.

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Md. handgun licensing lacks historical roots, gun group tells 4th Circuit

Maryland’s licensing requirement for would-be handgun buyers infringes upon the constitutional right of people to keep arms for personal protection in their home and has no historical roots from either 18th- or 19th-century America, gun rights advocates told a federal appeals court Wednesday.

Maryland Shall Issue made its argument as the 4th Circuit considers whether the state’s handgun qualification license, or HQL, comports with the Second Amendment and its most recent interpretation by the U.S. Supreme Court.

In June, the high court ruled 6-3 that gun restrictions are valid only if in keeping with the constitutional text, history and tradition of state firearm regulations when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.

Maryland Attorney General Brian E. Frosh told the 4th Circuit last month that the history and tradition of ensuring gun owners are trained in firearm use dates to 1792 – the year after the Second Amendment’s ratification — when Congress enacted the Uniform Militia Act. Several states passed similar statutes shortly after, Frosh stated in papers filed with the appellate court.

In its response, MSI distinguished the militia laws from Maryland’s HQL.

“Whereas the HQL requirement requires nearly everyone to complete the firearm safety course before acquiring a handgun, militia laws required militia training only after the militia men had acquired a handgun or other firearm,” MSI wrote in its 4th Circuit filing. “No state required militia training before firearm acquisition or tied this training to firearm acquisition.”

In addition, the militia laws and Maryland’s licensing mandate were passed for wholly different reasons, stated MSI, which was joined in the HQL challenge by gun seller Atlantic Guns Inc. and two Marylanders.

“Maryland enacted the HQL requirement to encourage safer gun storage practices in the home and reduce handgun violence in urban areas,” MSI stated.

“Militia laws, by contrast, were enacted to train young men for military service so they would be prepared for armed defense against foreign or domestic threats,” MSI added. “Militia laws did not condition the exercise of anyone’s right to acquire a firearm on compliance with the militia requirements.”

Those challenging the licensing requirement are represented by MSI President Mark W. Pennak; Cary J. Hansel III, of Hansel Law PC in Baltimore; and John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.

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Gun makers fire back, sue states over “public nuisance” laws

Over the past couple of years a handful of states, starting with New York, have put laws on the books that allow citizens to sue gun makers over the third-party actions of criminals; an attempt to do and end-run around the federal Protection of Lawful Commerce in Arms Act, which was approved on a bipartisan basis in 2005 in an effort to curb these exact kinds of junk lawsuits meant to bankrupt the firearms industry. The most recent states to adopt these public nuisance statutes are New Jersey and Delaware, and they’re now the subject of brand new litigation aimed at overturning the regulations on the grounds that they violate the Supremacy Clause of the Constitution as well as many other portions of our founding document.

“These laws enacted by the Delaware and New Jersey flout the will of Congress and undermine the U.S. Constitution,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “These state laws are at odds with bedrock principles of American law, which does not hold manufacturers and sellers legally responsible for the actions of criminals and remote third parties over whom the manufacturer and seller have no control when they misuse lawfully sold products.”

Delaware and New Jersey’s laws also violate the First Amendment, Second Amendment, Due Process Clause and Commerce Clause. These laws would impose liability on industry members for firearms lawfully sold in other states that later find their way into Delaware or New Jersey through the independent actions of remote third parties and criminals.

Basically, any time a criminal uses a gun in the commission of a crime Delaware and New Jersey want a gunmaker to be sued for their supposed liability. Even if the gun was stolen, even if the buyer passed a background check, even if the gun had been purchased 20 years ago; if there was a gun involved, the gun maker should pay.

It’s an absurd legal standard, and one that anti-gun politicians only want to apply to the firearms industry. Brewers, distillers, and automotive makers aren’t subject to lawsuits every time a drunk driver criminally misuses their product and harms or kills someone as a result. Heck, both the New Jersey and Delaware laws specify that these public nuisance standards apply to gun makers only. If someone uses a knife in the commission of an armed robbery, the company that crafted the blade can’t be sued. But if the robber uses a pistol, then victims can fire off those lawsuits at will.

Joe Biden has made the repeal of the PLCAA a regular part of his gun control talking points, but now that Republicans have secured a majority in the House of Representatives that’s off the table. Instead, expect to see a flood of blue states create their own “public nuisance” laws in the coming months to get around the PLCAA’s prohibition on these junk lawsuits.

The NSSF has already filed suit against New York’s law, and the case is currently in the Second Circuit. Attorney Paul Clement, who successfully argued for the New York State Rifle & Pistol Association in the Bruen case, is representing the firearms industry trade group and individual gun manufacturers in both the New York case and the new lawsuit taking on the Delaware and New Jersey statutes. Clement is a brilliant legal mind, and his initial complaint in the latest lawsuits are fun reads with solid arguments in favor of overturning the laws and preventing them from being enforced while the issue is litigated.

Here’s a taste (emphasis is mine):

A1765 is breathtaking in its scope. Although criminal misuse of a firearm triggers the statute’s application, A1765 does not regulate the use of firearms. Nor does A1765 impose liability on individuals who misuse firearms to the detriment of themselves or others. Instead, the statute regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products. In other words, A1765 regulates commerce in and speech relating to arms—even when it takes place entirely outside of New Jersey, as will often be the case.

The statute also removes traditional elements of tort law that ensure that judges and juries do not impose liability on private parties for constitutionally protected conduct. For instance, speech-based torts traditionally required proof of reliance. A1765 not only does away with that bedrock requirement, but allows judges and juries to impose liability based on truthful, non-misleading speech about lawful products. Making matters worse, A1765 redefines proximate cause to include criminal misuse by third parties with whom a defendant never dealt—which is not proximate cause at all.

None of this is constitutional, argues Clement.

The Commerce Clause prohibits states from regulating commerce (selling, manufacturing, marketing, etc.) that takes place beyond their borders, even when that commerce has effects within the state. The First Amendment prohibits states from punishing wide swaths of truthful speech about lawful products, even if the products are dangerous or the speech is unpopular. The Second Amendment protects commerce in arms. And the Due Process Clause prohibits states from punishing one private party for the conduct of someone else.

All of that is reason enough to invalidate New Jersey’s new statute. But there is an even more obvious problem with A1765: It is squarely preempted by federal law. In the late 1990s and early 2000s, several state and local governments sought to use novel applications of common law theories like negligence and nuisance to impose civil liability on manufacturers and sellers of firearms and ammunition when third parties misused their products. Congress saw these lawsuits for what they were: unconstitutional efforts to stamp out lawful and constitutionally protected activity. To end such incursions, Congress enacted the Protection of Lawful Commerce in Arms Act (“PLCAA”) in 2005 by wide margins on a substantially bipartisan basis. The PLCAA expressly prohibits and preempts state-law civil actions “brought by any person against a manufacturer or seller of [firearms or ammunition] … for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of [firearms or ammunition] by the person or a third party.”

These public nuisance statutes are intended to go around the PLCAA, and lawmakers have explicitly acknowledged that. As Clement pointedly notes, “while the state may get credit for its candor, that does not make its law any more consistent with the protections afforded by Congress and the Constitution.”

These public nuisance laws have been a giant middle finger to the gun industry, the Constitution, and Congress, and as long as the courts New York, New Jersey, and Delaware to get away it more Democrat-controlled states will decide to do the same. The end goal isn’t about accountability for those responsible for criminal acts. It’s an end to the firearms industry, one blue-state verdict and gun company bankruptcy at a time.

An additional take on the morning’s mendacity by the 3rd circuit court

Appeals Court Cites Bigoted Historical Laws to Uphold Ban on Non-Violent Felons Owning Guns

The federal government can continue to block non-violent felons from possessing firearms.

That’s what a three-judge panel for the Third Circuit Court of Appeals ruled on Wednesday. It found the federal law barring those convicted of non-violent felonies from possessing guns is consistent with the country’s history and tradition of gun regulation. The court specifically relies on historical laws that disarmed disfavored minority groups to reach that conclusion, despite referring to that history as “repugnant” and “unconstitutional.”

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms,” the court’s per curiam opinion reads. “Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence.”

The ruling is the first from a federal appeals court to deal with the federal prohibition on felons having guns after the Supreme Court created a new standard for reviewing gun cases in New York State Rifle and Pistol Association v. Bruen, which requires modern gun laws to be substantially similar to those in place near the ratification of the Second Amendment in order to be considered constitutional. An established circuit precedent upholding felon-in-possession crimes, even for non-violent offenders, could prove influential as courts flesh out how the new Bruen standard affects modern gun laws.

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Portland’s Antifa ‘Justice’ Strikes Again

A Portland “anti-fascist” activist has been found not guilty of being a fascist by roughing up a journalist and stealing his phone because he didn’t like what the reporter said about his Antifa friends. After the Portland judge let off the notorious Portland Antifa attacker, he delivered a lecture to the victim, reporter Andy Ngo.

There’s your justice, Portland.

Ngo sought justice in court for three-and-a-half years against John Hacker, one of a mob of activists that has made a point to follow, chase, hassle, and attack Ngo multiple times.

 

The Post Millennial reported that Hacker confronted Ngo in a Portland area 24 Hour Fitness where he assaulted the reporter, poured water on him, and stole his phone. Ngo captured part of John Hacker’s attack on video.

“The shaky video is less than 30 seconds long, but prosecutors say it’s a key piece of evidence showing Hacker approaching Ngo, grabbing the device, and yelling, “I will break your f*cking phone,” the news website reported.

The Deputy District Attorney argued before the judge that Hacker had conducted a “harassment campaign targeting Ngo for years.”

Indeed, Hacker was part of a mob that chased Ngo in downtown Portland, forcing the journalist to seek a hiding place at a posh hotel.

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Texas judge rules that disarming those under protective orders violates the Second Amendment

A Texas federal judge declared it was unconstitutional to disarm someone who is under a protective order, setting into motion a likely legal fight over who can possess firearms – a move that advocates say could have wide-ranging impacts on gun access across the county.

The video featured above is from a previous report on a Judge ruling those under felony indictment can buy guns.

U.S. District Judge David Counts, who was appointed by former President Donald Trump, ruled last week that banning those under a protective order from possessing a gun infringes on their Second Amendment rights.

Judges who deem people a danger to family members or intimate partners can take the extra step to issue a protective order requiring people to relinquish the guns they already have. Federal law currently prohibits domestic abusers who are charged with a felony, misdemeanor or are under a protective order from possessing a gun.

The ruling comes months after a landmark U.S. Supreme Court case on the Second Amendment, the effects of which, legal experts say, are just beginning to be felt.

This June, the high court’s ruling in New York State Rifle & Pistol Association vs. Bruen, written by Justice Clarence Thomas, struck down the state’s concealed carry law and held that courts going forward should uphold gun restrictions only if there is a tradition of them in U.S. history.

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SCOTUS turns away bump stock, gun seizure cases

For the third time this year the Supreme Court has rejected a case dealing with the ATF’s administratively imposed ban on bump stocks, denying cert in a challenge to the ban brought by a group of federally licensed firearm retailers and several individuals who argued that the ban was an unconstitutional violation of the Fifth Amendment’s Takings Clause by forcing existing bump stock owners to destroy them without any kind of compensation on the part of the federal government.

Today’s decision follows the denial of two other challenges to the bump stock ban, which was imposed by the Trump administration following the Route 91 Harvest music festival shooting in Las Vegas in 2017. Previously, the ATF had determined that bump stocks should not be considered “machine guns” under federal law, given that even with bump stocks attached it took a pull of the trigger to release a single round.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a U.S. Justice Department agency, reversed a previous conclusion and classified bump stocks as machine guns under a 1934 U.S. law called the National Firearms Act. The policy took effect in 2019.

Two sets of plaintiffs filed lawsuits seeking compensation for having to destroy or surrender their bump stocks in the Court of Federal Claims, which hears monetary claims against the U.S. government. A judge dismissed the actions, finding the policy to be a lawful exercise of the federal government’s power to outlaw dangers to public health and safety.

“The Washington-based U.S. Court of Appeals for the Federal Circuit upheld those decisions last year for a different reason, ruling that a property right in the devices was inherently limited given the existing federal prohibition on machine guns.

We don’t know why SCOTUS rejected these challenges, just that there weren’t four justices willing to accept any of these cases. And while the odds of any particular case being granted cert by the Court are low (about 1-in-10,000), gun owners are rightfully going to be concerned about the Court’s inaction, especially with the Biden administration using the Trump tactic to pursue administrative bans against unfinished frames and receivers, pistol stabilizing braces, and potentially even semi-automatic handguns and rifles.

Today’s decision doesn’t mean that these same justices will stand by and let future abuses of executive authority slide, but as long as SCOTUS doesn’t object the Biden administration is likely to take their silence as a green light for more rule-making of dubious constitutionality.

The other case turned away by the Supreme Court today dealt with the seizure of a New York man’s firearms; a case that the attorneys for Wayne Torcivia argued was virtually identical to a similar search and seizure that the Court ruled unconstitutional in Caniglia v. Strom. 

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Opponents prep lawsuit over Oregon gun control measures

Measure 114, the sweeping ballot initiative that will impose a ban on “large capacity” magazines and establish a “permit-to-purchase” system that includes mandatory training, a waiting period, extensive background investigations, and a database of all prospective gun owners, is likely to be officially certified on December 15th, which will start the clock on the 30-day window before the new measures officially take effect.

Already, however, we’re seeing signs that might not be enough time for backers of Measure 114 to draft all of the associated policies and technical language needed to enforce the provisions within the anti-gun laws… and opponents are gearing up for a lawsuit as well. In fact, the speculation in Oregon now isn’t whether Measure 114 will pass, but whether it will ever actually be enforced.

We’re very humbled by this, but it wasn’t a victory over anybody. It was a victory for our children that we can all celebrate,” said one of the chief petitioners, the Rev. Mark Knutson from Portland’s Augustana Lutheran Church.

Lawyers advising the Oregon Firearms Federation, the Second Amendment Foundation and other gun rights advocates disagree.

They’re preparing to ask a judge for a temporary restraining order and preliminary injunction to prevent the measure from taking effect until a judge can weigh whether it meets constitutional muster.

“The first draft of our complaint has been written. We’re still adding plaintiffs to the suit, and we’ll be ready to pounce,” said Alan Gottlieb, founder of the Second Amendment Foundation, based in Bellevue…

While the passage of Measure 114 shows the strength of the gun safety movement right now, it’s too early to tell whether the law will survive constitutional scrutiny in the wake of the major U.S. Supreme Court ruling in late June overturning a New York gun safety law, said Adam Winkler, a constitutional law professor at UCLA School of Law.

“There’s no doubt the U.S. Supreme Court has declared war on gun safety legislation,” Winkler said. “We don’t know which exact laws will be upheld.”

He suspects part of Measure 114 may withstand review, such as the move to require completed background checks before a gun sale, but others may not, such as the ban of magazines that hold more than 10 rounds of ammunition.

“It’s going to be awhile,” Winkler said, “before this law goes into effect, if it ever does.”

If the passage of Measure 114 shows the current strength of the gun control movement, then it’s not particularly strong. Measure 114 will likely receive the approval of about 52% of voters this cycle; far below the 80-90% support that gun control advocates claim to have for their infringements on the Second Amendment rights of the people. And as Oregonians get a first-hand look at how the new laws will be implemented, I suspect that support is going to decline even further.

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Dangerous Use of Serial Numbers Found Unconstitutional

U.S.A. –-(AmmoLand.com)-– The most dangerous use of a serial number on a firearm is as a registration number. In effect, gun registration is gun confiscation. It was not the intent for which serial numbers were made. They were created to track firearms with production changes and as a way for government arsenals to track the production and military use of weapons.

A federal court recently held a law passed in 1990, which makes possessing a firearm with a removed serial (registration) number illegal, is unconstitutional.

This is an important decision. It has relatively minor effects at this time. The law was a step toward universal firearms registration.

Finding the law unconstitutional subverts the push for government control over firearms.

Suppose a person cannot be punished for merely possessing a firearm from which a serial number has been removed. In that case, the entire scheme for government control over legally owned firearms falls apart.

There cannot be effective gun registration if a person cannot be punished for possessing a gun with the serial number removed.

The legal ability to possess firearms without serial numbers buttresses the deterrent effect of an armed population.

If government agents demand a person turn in a firearm that is registered to them, they can remain silent.

If the firearm appears at some later date, and the serial number has been removed, it becomes difficult to connect the firearm to the person it was registered to.

It becomes difficult to punish a person for an act someone else commits with a firearm originally purchased by them.

A unique serial number is a key to efforts to register and control firearms by the administrative state. Nelson T. “Pete” Shields of Handgun Control, inc. laid out the plan in 1976:

 “We’ll take one step at a time, and the first is necessarily – given the political realities – very modest.  We’ll have to start working again to strengthen the law, and then again to strengthen the next law and again and again.  Our ultimate goal, total control of handguns, is going to take time.  The first problem is to slow down production and sales. Next is to get registration.  The final problem is to make possession of all handguns and ammunition (with a few exceptions) totally illegal.”

When people may not be punished for possessing a firearm whose serial number has been removed, the plan falls apart.

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Michigan Supreme Court kicks campus carry ban case back to lower court

A challenge to the University of Michigan’s ban on firearms on campus is still underway after the state’s Supreme Court sent the case back to the Court of Appeals with instructions to re-consider its ruling in light of the Bruen decision.

At first glance, this looks like a relatively easy case. The Supreme Court said that “schools” were among those few “sensitive places” where there’s a historical tradition of banning firearms, so that must mean that the university’s gun ban is in-line with the Constitution, right? As Michigan Supreme Court Justice David Viviano wrote in a concurrence to the order sending Wade v. University of Michigan back to the court of appeals, it’s not nearly as cut and dried an issue.

To support its threshold analysis, the Court of Appeals relied on the statement in Dist of Columbia v Heller, 554 US 570, 626-627 (2008), that the Second Amendment did not disturb “longstanding prohibitions on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” In the present case, the Court of Appeals’ entire “historical analysis” was to examine one dictionary from 1828 to determine whether universities were considered “school[s]” in 1868.

Even if one concludes that the Court of Appeals reached the correct result, this paltry review of the main question is inadequate. Moreover, it is not at all apparent that Heller’s brief discussion of sensitive places was intended to establish a rule that all entities historically known as “schools” could permissibly ban firearms, meaning the only question that would remain for future cases is whether the entity at issue was considered a “school.” Nor is it even clear that the Court meant to include universities and colleges in its reference to “schools,” let alone to say that such locations can completely ban firearms. See Note, Guns on Campus: Continuing Controversy, 38 J C & U L 663, 667-668 (2012) (noting that Heller did not address guns on university campuses or define “schools” to include higher education).

Viviano went on to describe two different areas of historical analysis that he’d like to see from the appellate court. First, whether there were any similar regulations dealing with bearing arms on university and college campuses at the time the Second and Fourteenth Amendments were ratified. Viviano notes that in his own initial analysis he’s found some laws that contain “partial restrictions”, but none that come close to the complete ban in effect on the University of Michigan campus.

The second line of historical analysis suggested by Viviano is whether or not traditional college campuses are even a good historical analogue for “large modern campuses like the University of Michigan’s.” Viviano wonders whether modern campuses are “so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?”

The University of Michigan itself occupies nearly one-tenth of Ann Arbor. Many areas on campus, such as roadways, open areas, shopping districts, or restaurants, might not fit the “sensitive place” model suggested by Heller—they may instead be more historically analogous to other locations that did not have gun restrictions. And because the campus is so entwined with the surrounding community, the ban might also burden carrying rights on locations outside campus, as many individuals will regularly go from campus to off-campus environments, even in a single trip; because they cannot bring a gun on campus, they will not feasibly be able to bring the gun to the off-campus locations either.

It’s an excellent point, and one that strikes at the heart of several of the post-Bruen restrictions on the right to carry that we’ve seen implemented or introduced in blue states over the past four months. Bans on concealed carry in public transportation, for example, not only prevent those who rely on it from being able to bear arms while on a city bus or subway, but throughout the course of their daily routine as well.

With the case going back to the court of appeals it will likely be several months before we get a decision, and Justice Viviano’s concurrence suggests that upholding the U of M gun ban won’t be as easy as gun control activists are hoping for. We’ll keep an eye on this case for any future developments, but in the meantime Michigan gun owners should be aware that the ban remains in effect for the time being.

I say use a chainsaw, like Marcel Ledbetter did. 

Firearms Policy Coalition

Yesterday, a Texas federal judge struck down 922(g)(8)

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.
A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality.
That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.
And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw.

…this Court’s opinion says nothing about whether a state court could remove someone’s guns through conditions of release or a restraining order.

“But if the Second Amendment can be read separate from the First as the Government argues, the history of disarming someone because of political allegiance oaths could be used to justify disarming political dissidents today.

Another problem is that § 922(g)(8) prohibits possession of a gun even if the state court order doesn’t. Indeed, § 922(g)(8) does not require that the court order prohibit possessing a gun.

Federal Judge Strikes Down Biden Student-Loan ‘Forgiveness.’

A federal judge in Texas on Thursday blocked President Biden’s student-loan “forgiveness” plan in response to a lawsuit from the Job Creators Network Foundation (JCNF).

The conservative advocacy group filed a suit in October arguing that the Biden administration violated federal procedures by not allowing borrowers to provide public comment before the program was unveiled.

Judge Mark Pittman of the Northern District of Texas called the plan an “unconstitutional exercise of Congress’s legislative power” and noted the program failed to go through standard regulatory processes.

“No one can plausibly deny that it is either one of the largest delegations of legislative power to the executive branch, or one of the largest exercises of legislative power without congressional authority in the history of the United States,” Pittman wrote in a 26-page opinion.

Continue reading “”

One Year Later: The sky did not fall after the Supreme Court exited the abortion debate.

Exactly one year ago, the Federalist Society held its National Lawyers Convention. And exactly one year ago, the Supreme Court was enmeshed in the abortion debate on two fronts. First, Jonathan Mitchell, also known as “The Genius,” foisted the impermeable fetal heartbeat law on the judiciary. Second, Mississippi’s fifteen-week abortion ban was slated for oral argument. At the time, we were warned about the parade of horribles that would fall if the Supreme Court allowed either of these laws to go into effect.

One year later the story looks very different–especially after election day. In Kansas, voters rejected a ballot measure that would have reversed a state supreme court decision that protected abortion. And all the justices who joined that opinion, as well as several other justices appointed by the Democratic governor, were retained. Voters in several states also rejected efforts to scale back abortion rights. In Kentucky, 53% of voters rejected a referendum that would have stated there was no right to abortion under the state constitution. In Montana, 53% of voters rejected a “born alive” amendment to the state constitution. In Michigan, 56% of voters approved a referendum that protects a right to abortion, and wipes out a 1931 law that banned the procedure.

Justice Scalia’s clarion call in Casey rings true three decades later:

Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Justice Breyer should be proud that Dobbs is making democracy work.

As a general matter, I no longer pay attention to predictions that the sky will fall after a conservative Supreme Court victory. The sky did not fall after Heller. The sky did not fall after Citizens United. The sky did not fall after Shelby County. The sky did not fall after Hobby Lobby. The sky did not fall after Rucho. And so on. The sky will not fall after Dobbs.

What’s left standing after judge guts NY carry laws?

As my colleague Tom Knighton reported this morning, U.S. District Judge Glenn Suddaby has halted enforcement of many aspects of New York’s Concealed Carry Improvement Act, from the “good moral character” requirement to the state’s designation of a host of publicly-accessible places as “sensitive” locations off-limits to concealed carry holders.

The 184 page order is mostly great news for gun owners, but Suddaby is still allowing several components of the CCIA to remain in place, like the requirement that concealed carry applicants provide a list of four character references, take part in an in-person meeting with law enforcement, and provide proof of 18 hours of training (16 hours of classroom training and 2 hours of range time) before concealed carry licenses “shall” be granted.

In upholding those provisions of the CCIA, Suddaby pointed to several statutes in place near the time of the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868. For the character references, Suddaby noted that at least five colonies “had gun laws based on a reputation-based perception of an individual (Pennsylvania, Maryland, North Carolina, Virginia and New York).” Suddaby also found “three historical statutes (one from a state and two from cities) requiring an applicant to provide character references to be permitted to carry a gun,” and determined that “together, these eight laws (five of which came from states in 1777, including Virginia) were sufficiently established and representative to constitute a historical tradition of firearm regulation based on reputation (for example, by a reasonable number of character references).” Though the judge did note in an aside that “it seems overreactive (and a bit offensive) to literally analogize the need to regulate concealed-carry applicants to the need to regulate ‘groups deemed dangerous’, that’s pretty much what he ended up doing.

In upholding the state’s expansive training standards, Suddaby said the financial burden on applicants is “troubling,” but ruled that the provisions can remain in place for now because of “the analogousness of a historical requirement that those persons without familiarity of firearms must become familiar with them if those persons are to exercise their right use firearms to defend themselves in public,” adding that [i”]n addition, as the Court stated in its Decision and Temporary Restraining Order of October 6, 2022, it has been persuaded by Defendants that historically Americans’ familiarity with firearms was far more common than it is today.” The problem with that line of reasoning is that most of the statutes that Suddaby points to in upholding the training mandate are directly related to militia service; something that is not required in order to exercise your right to keep and bear arms.

Moreover, it’s incredibly difficult for would-be carry holders in some parts of the state to find access to the state-mandated training. There are few ranges located in and around New York City, for example, and applicants are forced to travel for some distance, perhaps even staying in another location overnight and incurring additional costs, in order to meet the state’s requirement.

Interestingly, Suddaby suggested that he’d be amenable to halting enforcement of the in-person meeting requirement for concealed carry applicants, and even laid out a better argument than the one used by plaintiffs.

Granted, again, it seems a stretch to analogize the modern need to regulate concealed carry applicants to the historical need regulate “groups deemed dangerous.” And the need to personally see that the members of one’s military are competent to handle firearms during a time of war seems greater than the need to look all concealed carry applicants in the eye (and maybe exchanged a few words with them) after they have provided four character references and completed 18 hours of firearms training. However, Plaintiff Sloane has not yet adduced evidence of the inconvenience he would incur as a result of such an in-person meeting. (See generally Dkt. No. 1, Attach. 4 [Sloane Decl.].)

Conceivable examples of such evidence might include (1) the need to take time away from work or family to appear before a licensing officer, or (2) any delay experienced in having an appointment scheduled due to the CCIA’s imposition of this requirement on every applicant. Instead, Plaintiff Sloane has relied only on a possible infringement of his Fifth Amendment right to remain silent. (Id. at ¶ ¶ 5, 17-19.)

The problem with this sole reliance is that, even setting aside the argument that an applicant is not “in custody” during such an in-person meeting, Plaintiff Sloane’s Fifth Amendment injury stemming from an “interrogation” appears too speculative at this point in the litigation. Simply stated, without more evidence, the Court must find that the burdensomeness of this modern regulation appears proportionate to the burdensomeness of its historical analogues.

In this regard, based on better briefing by the State Defendants (and in the absence of testimony at the Preliminary Injunction Hearing), the Court reconsiders its prior ruling on this issue (in its Decision and Temporary Restraining Order of October 6, 2022), and denies Plaintiffs’ motion for a preliminary injunction with regard to this regulation.

Suddaby’s decision also allows the prohibition on concealed carry in playgrounds (but not parks), daycare centers, libraries and nursery schools; finding that those places are close enough to historical prohibitions on carrying firearms on school grounds to withstand constitutional scrutiny.

While the judge’s decision isn’t perfectly in line with what plaintiffs were asking for, it’s still a big win for Second Amendment advocates. Now the question is what will the Second Circuit do with Suddaby’s opinion? The state’s appeal will likely come quickly, and then the appeals court will have to decide whether to let the injunction stand as it is or reverse some or all of the district court decision. In the meantime, life will be a little easier for those who already possess a permit to carry in New York, but those hoping to exercise their right to bear arms for the first time are still going to deal with some unreasonable (and I’d argue unconstitutional) demands.