Category: Courts

NRA Challenges ‘Engaged In The Business’ Rule In Alabama Court

The National Rifle Association on Monday filed a lawsuit challenging the DOJ/ATF’s Final Rule redefining who is “engaged in the business” of selling firearms.

The NRA, along with two individuals, filed the lawsuit in the U.S. District Court for the Northern District of Alabama. Specifically, Butler v. Garland argues that the rule, which arguably bans most private sales of firearms, violates the Administrative Procedures Act.

Along with the NRA, the individual plaintiffs are Don Butler and David Glidewell. Butler, from Talladega, Alabama, is an NRA member, firearms hobbyist and collector. Glidewell, from Ragland, Alabama, is also an NRA member, firearms hobbyist and collector, according to the complaint.

Randy Kozuch, executive director of NRA’s Institute for Legislative Action, said the lawsuit is a follow-up on the promise made by NRA when the Final Rule was announced.

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House Oversight Chairman Investigating White House Collusion in Chicago’s GLOCK Balk

The head of the U.S. House of Representatives Oversight Committee isn’t playing games when it comes to The White House avoiding answers to questions about potential collusion with antigun groups to target GLOCK, Inc., with a frivolous lawsuit.

Last week, Chairman of the House Oversight Committee James Comer (R-Ky.) fired off a letter in response to The White House’s political gamesmanship. In short, Chairman Comer demanded that Stefanie Feldman, the Director of The White House Office of Gun Violence Prevention, quit stalling and provide answers over “potential collaboration” between Biden administration officials and Everytown for Gun Safety.

Chairman Comer announced an investigation into potential collusion between the Biden administration, gun control groups and the City of Chicago to bring a lawsuit against GLOCK, Inc., alleging the company is responsible for the criminal misuse of firearms when criminals unlawfully attach an illegal “switch” to handguns. The Oversight Committee learned that White House officials met privately with GLOCK representatives to demand a design alteration to their handguns.

Special-Interest Backed Lawfare

“On the very day the suit was filed, Everytown for Gun Safety President John Feinblatt posted on X, ‘Federal officials recently contacted Glock to discuss implementing new ways to modify Glock pistols to make it harder for Glock switches to be installed. Rather than help, Glock falsely insisted there is nothing they can do.’”

Chairman Comer said this indicates that Everytown had inside access to White House meetings. The White House Office of Gun Violence Prevention is staffed by a former Everytown lobbyist, Rob Wilcox. Letters demanding more information were sent to Steven Dettelbach, Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and White House Office of Gun Violence Prevention Director Stefanie Feldman.

Chairman Comer sent these letters demanding answers on June 14. Instead of answering those questions, White House Deputy Counsel Rachel Cotton responded by making counteraccusations that Chairman Comer was shilling for the gun lobby. Cotton provided no answers, only listing off the Biden administration’s gun control efforts and goals, adding Congress “should open a real investigation into an actual danger to our communities: the proliferation of illegal devices that convert handguns into machineguns in a matter of seconds.”

That’s a purposefully misleading attack on not just the House Oversight Committee but also GLOCK. The illegal devices are “autosears,” which are illegal to possess, illegal to attach to a firearm and illegal to use without compliance with the 1934 National Firearms Act (NFA). Cotton, as an attorney, should know that these aren’t produced by GLOCK or any other firearm manufacturer. In fact, they are largely illegally imported from China or illegally manufactured by individuals.

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So That’s Why Chicago Dropped Its Lawsuit Against Glock

Earlier today we reported on the city of Chicago’s odd decision to quietly drop its joint lawsuit with Everytown Law against gunmaker Glock, which came with no fanfare or press releases… unlike the announcement of the lawsuit earlier this year.

Shortly after our story was published, the gun control outfit did issue a press release; this one touting its new and expanded lawsuit against the gun maker. I’m not going to give them the traffic by linking directly to the press release, but you can find it at Everytown Law’s website if you want to take a look. Here’s the most pertinent piece of their statement, however:

The City of Chicago, alongside Everytown Law and Motley Rice LLC, announced the expansion of the City’s first-of-its-kind lawsuit against Glock, the manufacturer of the most popular handguns in the United States. Three additional defendants were named in the complaint submitted yesterday in Cook County Circuit Court – Glock Ges.m.b.H, the Austrian Glock entity and part owner of the U.S. Glock subsidiary, and two Chicago-area gun stores on Glock’s roster of preferred dealers, Eagle Sports Range in Oak Forest, Illinois and Midwest Sporting Goods in Lyons, Illinois.

… The City seeks a court order requiring Defendants to cease sales and marketing of easily converted Glock pistols to Chicago civilians and an order requiring Eagle Sports Range to stop marketing Glocks modified with an auto sear at its location and online. The City also seeks penalties for these actions. The City first filed its lawsuit against Glock in March of this year, and Glock removed the case to federal district court. The City is now filing its expanded lawsuit after voluntarily dismissing the federal court action.

In their latest complaint, Chicago and Everytown Law claim that Eagle Sports Range is actually “marketing a Modified Glock to its customers”. Reading further, however, it sounds like the range is merely offering customers the opportunity to rent and shoot full-auto firearms on-site.

From the beginning, a major component of Eagle Sports Range’s business plan has been promoting its “full auto experience,” which allows customers to rent machine guns and fire them at its indoor range (a range which it has allowed convicted felons to use).

As part of its “full auto experience,” Eagle Sports Range markets the use of a Modified Glock at its range. Eagle Sports Range customers can thus “demo” a Modified Glock at the store’s range, purchase a semi-automatic Glock from the store’s inventory, and then easily and illegally modify their new Glock pistol at home with an auto sear purchased off the internet.

I doubt very much that Eagle Sports Range is offering an illegally modified Glock for use at its range, though if the company has a Type VII FFL it could legally modify a pistol to fire full-auto without running afoul of the law. But as even the city of Chicago reluctantly admits, it would be against the law for any customer to modify a Glock of their own to shoot full-auto. In fact, it’s a crime punishable under federal law by up to ten years in prison.

The only traces of Eagle Sports Range’s “full auto experience” that I’ve been able to find online are a YouTube video from 2017 that’s wracked up a grand total of less than 4,000 views in the seven years it’s been online, and a press release from that same year announcing that the range had a “Glock 18, a Short Barrel M4, AK47, or a 9MM Carbine” available to rent and use at the range itself. The Glock 18 isn’t a “modified Glock”, however. It’s produced as a full-auto pistol; one not available for sale to average consumers.

Chicago and their partners at Everytown Law are trying to stop city residents from being able to purchase some of the most common and popular handguns in the country, so it shouldn’t be a surprise that they’re playing fast and loose with the facts.

I’m looking forward to seeing Glock’s response to the latest iteration of the litigation, as well as what Eagle Sports Range and Midwest Sporting Goods have to say about the legal attacks on their businesses, but keep in mind that this lawsuit could be just the first round of a broader strategy to ban semi-automatic handguns.

As we’ve previously reported, about a dozen blue-state AGs have sent what amounts to a pre-litigation demand letter to Glock, and the White House Office of Gun Violence Prevention has reportedly been pressing the ATF to issue a rule classifying Glocks as machine guns as well. The Supreme Court may have nixed a handgun ban as a violation of the Second Amendment, but the gun control lobby is clearly searching for a way to enact a sweeping gun ban regardless of what the Court has to say about it.

What Do You Mean, You Don’t Know

John Frazer served as NRA General Counsel from January 2015 until May 21st of this year. That is when Doug Hamlin separated the positions of General Counsel and Secretary and appointed Michael Blaz as the new General Counsel. Frazer retained his position as Secretary.

Frazer was on the stand today in the remedial phase of the New York Attorney General’s lawsuit. He was asked about how much money the NRA had paid Brewer, Attorneys and Counselors, since 2018. Additionally, he was asked how much the NRA had paid for the defense of Wayne LaPierre and himself.

As reported by Erik Uebelacker of Courthouse News who has been following the trial:

While I might give Frazer a pass on how much has been paid to Brewer, Attorneys and Counselors, for their work on the NYAG’s case, it is only because the Special Litigation Committee was formed to make decisions on that case – and only that case – due to Frazer and Wayne being named defendants. However, William Brewer and his firm have done plenty of other legal work for the NRA ranging from the multiple lawsuits against AckMac to the Vullo case that went before the Supreme Court. Brewer’s firm even handled the lawsuit against former NRA President Oliver North which is currently on hold pending the outcome of the NYAG’s case.

He certainly ought to have an idea how many billable hours have been spent on his defense by William Fleming of Gage Spencer and Fleming LLP. How hard is it to multiply hours billed times a per hour fee? Moreover, to say he has no idea how much has been paid to Brewer is ludicrous. He might not know the exact figure but he certainly has to know a ballpark figure.

If he doesn’t, then what was he doing as General Counsel all these years? Unless I’m greatly mistaken, doesn’t the Office of General Counsel have to approve bills submitted for NRA legal work before it is passed on to the Accounting Department for payment?

Frazer was never a grifter like Wayne. I will give him that. However, I do expect a certain level of responsibility from an officer of an organization when he is being paid a substantial 6-figure salary. That responsibility includes making sure the members’ dues spent on outside lawyers is well spent. It is impossible to do this if, as Frazer testified, he didn’t know how much was being spent on his defense, on Wayne’s defense, and on the myriad of legal issues being handled by Brewer, Attorneys and Counselors.

To all those who have insisted that membership and revenues are down because Tish James initiated a lawsuit against the NRA, think again. It is down because members, both Life and annual, have had the blinders pulled off their eyes and don’t want to waste their hard earned cash on an organization that seems intent on just pissing it away. Can you blame them when the former General Counsel says he has no idea how much has been spent on legal expenses?

NRA Trial Reveals Reformers Have More Work to Do

When a slate of reform-minded candidates won election to the NRA’s board of directors earlier this year, there was genuine hope that it would make a turning point for the organization, which has seen both membership and revenue plummet over the past few years. But testimony delivered during this week’s civil trial in New York has revealed that the board’s old guard still holds at least some sway over the direction of the organization, and there is much more work to be done to get the NRA back on track.

Take, for instance, the testimony of new NRA president Bob Barr, who was not the reformer’s pick to serve as the top elected official of the organization. While most of the reform-minded board members were cautiously optimistic that Barr would go along with the necessary changes to renew members’ confidence in the organization, Barr revealed that the NRA hasn’t even tried to collect the millions of dollars that Wayne LaPierre owes the group.

It wasn’t just the misspending on the part of top NRA officials like former executive vice president Wayne LaPierre that have caused many gun owners to let their memberships lapse or refuse to donate, it’s definitely a major factor. So why hasn’t the NRA tried to claw back the money the jury says is owed to the group? It’s not like they couldn’t use the cash.

Barr made another revealing comment; this one about new EVP Doug Hamlin, who was the choice of reformers. As John Richardon of Only Guns and Money relayed, Trace reporter Will Van Sant quoted Barr calling Hamlin a “placeholder” during testimony.

The National Rifle Association’s new chief executive Doug Hamlin is a placeholder, according to the testimony of former NRA president Charles Cotton that points to fault lines in the gun group’s leadership.

In May, board members chose Hamlin, who led the NRA’s publications arm, as Wayne LaPierre’s replacement. Hamlin is allied to a small, self-described reform bloc at the group.

“The intent is to try to get, frankly, some high-powered person to take it over,” testified Cotton, a LaPierre defender whom the reformers consider part of an old guard. Cotton made his remarks in a New York courtroom where the final phase of New York Attorney General Letitia James’s lawsuit against the NRA is underway. —Will Van Sant

When I spoke to Hamlin on Bearing Arms’ Cam & Co a few weeks after his election, I asked him about whether he considered himself to essentially be a placeholder, or whether he planned on sticking around. Hamlin replied that he served at the pleasure of the board, but he certainly didn’t sound like someone who took the job on a short-term basis.

Hamlin and Barr have both taken the stand in New York this week, and Hamlin was far more willing to criticize his predecessor for his misuse of NRA funds.

The New York attorney general called each to the witness stand to show how their differences could hold the NRA back from making progress toward financial transparency — part of the state’s broader goal of having a court-appointed monitor oversee the NRA and banning LaPierre from its leadership for life.

For instance, Hamlin was more willing to criticize LaPierre’s reign during his testimony.

“Mr. LaPierre breached the trust of the NRA and its members, correct?” state attorney Monica Connell prodded.

“Yes,” Hamlin replied, adding that he agreed LaPierre’s conduct placed the NRA in a “very difficult decision” and was partly responsible for the group’s declining membership.

Meanwhile, Barr maintained that LaPierre discharged his duties to the NRA in good faith, conceding that LaPierre may have made a few mistakes along the way. He took issue with the attorney general calling LaPierre “corrupt” following the verdict against him in February.

“I believe it was, shall we say, a mischaracterization,” Barr testified Wednesday.

Hamlin and Barr also appeared to be on different pages about the NRA’s potential relocating of its headquarters, a move that Knox and other board members believe should only be done with significant input from the board.

Hamlin, who previously ran the NRA’s in-house publishing arm, testified that he wasn’t even aware of the NRA’s intent to sell its Virginia headquarters until a few weeks ago. He axed plans to sell the Fairfax property when he took the NRA’s reins earlier this year. Barr testified that he thought Hamlin’s decision was “rushed.”

Still, these disputes weren’t an issue for Barr, a former U.S. representative from Georgia, who told the court he could “absolutely” work productively with Hamlin. “It’s similar to working in the Congress,” Barr said. “You have disagreements.”

I’m not sure pointing to Congress as a model of efficiency and comity is a great example, to be honest.

Beyond the trial, Barr has also appointed former NRA president Charles Cotton, who, as Van Sant points out, is considered one of the leaders of the old guard, to serve as chairman of several key BoD committees, including the Ethics and Audit committees. Not only that, as Richardson pointed out, Barr named just one of the Four for Reform candidates to any of these key committees.

I find this disappointing as their election is being used by the NRA in its court filings to assert that things have changed and no special monitor was needed. While Rocky’s appointment is good and proper, why was not Jeff Knox put on Bylaws and Resolutions as he probably knows more about the Bylaws than any member of that committee. Likewise, would not it have been wise to put Judge Phil Journey, the only jurist on the Board, on the Legal Affairs Committee.

With the exception of the Finance Committee which has has four known reformers on it (out of 15 total members), the remaining committees have one and perhaps two known reformers on them. If Barr wanted to signal to the members of the NRA and to Judge Cohen that things had changed at the NRA, this certainly was not the way to do it.

While I don’t have a crystal ball on what will happen in the remedial phase of the New York trial, I think the odds are better than even that a special monitor will now be appointed to oversee the NRA’s finances. It should be noted that this monitor will have nothing to do with functions and programs of the NRA including its political functions.

While this will put me at odds with some friends on the Board who are reformers, I think that the special monitor will be a requirement if the NRA is ever to crawl out of the morass it finds itself in.

I said when Barr was elected that he wasn’t my first choice, but I was hopeful that with reformers elected by the board to every other leadership position he would be a part of the effort to regain the trust of members. After the revelations over the past week, I can’t say I still harbor those hopes.

And honestly, as much as I want to see the NRA succeed, why should any individual or company donate a penny in support so long as the NRA isn’t demanding the return of the millions of dollars LaPierre owes the organization and its dues-paying members? Barr wasn’t asked that question on the stand, but everyone who’s stood by the organization or felt it was time to return to the fold deserve an answer.

Eighth Circuit Court of Appeals: Carry Bans for Under-21s Violate the Second Amendment

Minnesota’s ban on concealed carry for adults younger than 21 violates the Second Amendment, according to a three-judge panel on the Eighth Circuit Court of Appeals, which upheld a district court decision that found the state’s statute unconstitutional.

On Tuesday, the Eighth Circuit affirmed the lower court decision, giving the Second Amendment Foundation, Firearms Policy Coalition, MN Gun Owners Caucus, and several individual plaintiffs a huge victory… as well as teeing up a potential appeal to the Supreme Court by Minnesota Attorney General and longtime anti-2A advocate Keith Ellison.

The opinion, authored by Eighth Circuit Judge Duane Benton, is relatively brief and mercifully short of legalese. First, the panel weighed in on standing, and rightfully allowed the litigation to proceed even though the original plaintiffs have now reached the age where they can apply for a carry license. Plaintiffs aging out is a real problem when challenging restrictions on young adults, but the 2A groups found a 19-year-old to serve as an additional plaintiff in Worth v. Jacobson, and the panel ruled that the “organizational plaintiffs have an unbroken chain of standing” thanks to the addition.

With standing resolved, Duane and the other two members of the panel then turned to the question at hand; whether Minnesota’s prohibition on concealed carry for adults younger than 21 passes constitutional muster. The panel dismissed the claims by the state that young adults aren’t part of “the People”, nor do they possess the full flower of their individual rights until they turn 21. As Benton pointed out, “Reading the Second Amendment in the context of the Twenty-Sixth Amendment unambiguously places 18 to 20-year-olds within the national political community.” And if they’re a part of the national political community, then they possess the right to keep and bear arms.

Unless, of course, Minnesota could demonstrate a national tradition that prohibited some adults from exercising their Second Amendment rights based solely on their age. The state pointed to various ordinances and regulations, including 18th and 19th century prohibitions on college students keeping guns on campus, but the court found all that none of them were a close enough analogue to pass muster.

 Minnesota did not proffer an analogue that meets the “how” and “why” of the Carry Ban for 18 to 20-year-old Minnesotans. The only proffered evidence that was both not entirely based on one’s status as a minor and not entirely removed from burdening carry—Indiana’s 1875 statute—is not sufficient to demonstrate that the Carry Ban is within this nation’s historical tradition of firearm regulation. See Bruen, 597 U.S. at 65 (a “single” “postbellum” “state statute” is insufficient weight to meet the state’s burden).

Minnesota has not met its burden to proffer sufficient evidence to rebut the presumption that 18 to 20-year-olds seeking to carry handguns in public for self defense are protected by the right to keep and bear arms. The Carry Ban, § 624.714subd. 2(b)(2), violates the Second Amendment as applied to Minnesota through the Fourteenth Amendment, and, thus, is unconstitutional.

This is the first Second Amendment case to be decided since the Supreme Court used two fairly dissimilar 18th century statutes to uphold the modern prohibition on gun possession for those subject to a domestic violence restraining order in Rahimi, and it’s good to see that the Eighth Circuit didn’t try to abuse the Court’s narrow decision to uphold the state’s carry ban by citing statutes that barred minors from possessing guns or other historical laws with a tenuous connection at best to the law the plaintiffs challenged.

FPC President Brandon Combs hailed the decision, saying it “confirms that age-based firearm bans are flatly unconstitutional. All peaceable people have a natural right to carry firearms in public, and adults under the age of 21 are no exception,” while Second Amendment Foundation Executive Vice President and founder Alan Gottlieb called the ruling “a significant victory for the rights of young adults.”

Now the ball is is AG Ellison’s court. Will he seek an en banc review of the panel’s decision… and would the Eighth Circuit even grant his request given that both the trial court and the appellate panel are in agreement? Unless Ellison is willing to take the loss, his choices are limited to asking the Eighth Circuit for a do-over with the entire appellate court weighing in, or taking his appeal directly to the Supreme Court. He has a tough decision to make, because now that the Eighth Circuit panel has issued its ruling, it won’t be long before the state is formally enjoined from prohibiting young adults from applying for and receiving their concealed carry license.

Trump Dodges Another Bullet: Jack Smith

Everything really is going Donald Trump’s way in the six weeks since his conviction on May 30. Trump pulled in a vast fundraising haul after the conviction, jumping ahead for the first time in the campaign cash race while his conviction barely dented his standing in the polls. The intermediate appeals court in Georgia issued a stay order halting Fani Willis’s prosecution of Trump.

\The Supreme Court took two big bites out of Jack Smith’s indictment of Trump in D.C., with an immunity ruling and a decision on the obstruction-of-a-proceeding statute that will both require further, time-consuming litigation to see how they have narrowed the case. Acting Justice Juan Merchan delayed Trump’s state-court sentencing in New York from mid July to mid September in order to consider whether Trump’s conviction violated his immunity from having evidence of official acts introduced at his trial. His opponent melted down so badly in their first debate that Joe Biden is still fending off calls to drop out of the race, and has reportedly seen his fundraising dry to a trickle with big donors.

Then, Trump survived an assassination attempt and emerged looking vigorous and defiant. He will probably raise another mountain of cash after the shooting in Butler, Pa., which left a flustered Biden scrambling to pause his attack ads and reconsider the vitriol of his attacks on Trump. MSNBC even sidelined Morning Joe for the day out of fear of going overboard against Trump. And now, rolling into today’s curtain-opening of the Republican convention and announcement of Trump’s running mate, Judge Aileen Cannon has thrown out what once seemed the strongest of the cases against the former president: the retention of boxes of classified and sensitive documents at Mar-a-Lago after Trump left office.

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Trump Scores Major Legal Victory!

Donald Trump received a major legal victory Monday morning when U.S. District Court Judge Aileen Cannon dismissed the Biden administration’s classified documents case against him.

Cannon granted former President Trump’s motion to dismiss the indictment against him, citing the unlawful appointment and funding of Special Counsel Jack Smith. The judge ruled that Smith’s appointment violated the Appointments Clause of the U.S. Constitution, leading to the dismissal of the superseding indictment. Additionally, the court found that Smith’s use of a permanent, indefinite appropriation violated the Appropriations Clause, though it did not address the remedy for this violation.

In early April, Judge Cannon had rejected Trump’s previous attempt to dismiss the case, which was based on the argument that the documents found at his estate were personal records. Trump had filed multiple motions for dismissal back in February, employing various arguments, such as asserting presidential immunity and questioning the legitimacy of Smith’s appointment.

Merrick Garland handpicked Jack Smith in November to investigate former President Donald J. Trump over the alleged mishandling of classified documents and the ridiculous case over the Capitol riot.

Cannon’s new ruling is limited to this specific case.

Garland called Smith the “right choice to complete these matters in an evenhanded and urgent manner.” But in reality, Smith is a hardcore partisan with a shoddy record whose sole purpose was to get the result the Biden administration wanted.

Special Counsel Jack Smith’s case against former President Donald Trump had been on shaky ground for months. As far back as March, it appeared to be falling apart.

In April, Cannon unsealed a trove of new documents in the case, revealing that an FBI agent had testified that the General Services Administration (GSA) was in possession of Trump’s boxes in Virginia before ordering Trump’s team to retrieve them. These same boxes, which the GSA had held and then ordered Trump’s team to retrieve, ended up being the ones containing classified markings. This raised questions about whether the Biden administration had set up Trump.

In May, Smith’s team admitted to misleading Cannon and tampering with the evidence used to support his case against Trump.

The case against Trump was widely seen as political because Joe Biden had classified information that he was never entitled to have stored in boxes in his garage for years but was not charged, even though he had never had the authority to declassify them.

In February, Special Counsel Robert Hur’s report concluded that Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen” and that his actions “presented serious risks to national security.” However, Hur wouldn’t bring charges against him because Biden “would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”

You can read the entire ruling here.

Judge dismisses Alec Baldwin’s ‘Rust’ case amid trial over evidence suppression

In a stunning turn of events, a New Mexico judge dismissed Alec Baldwin’s “Rust” case Friday, on day three of his manslaughter trial.

The judge granted the defense’s motion to dismiss the case, in which they claimed live ammunition that came into the hands of local law enforcement related to the investigation into the deadly on-set shooting was “concealed” from them.

Judge Mary Marlowe Sommer said the state’s discovery violation regarding the late disclosure of a supplemental report on the ammunition evidence “injected needless delay into the proceedings,” approached “bad faith” and was “highly prejudicial to the defendant.”

“There is no way for the court to right this wrong,” Sommer said in granting the motion to dismiss with prejudice, meaning Baldwin cannot be tried again on the charge.

Baldwin reacted emotionally as the judge explained her ruling and could be seen hugging his wife, Hilaria Baldwin, in the courtroom.

He had faced 18 months in prison if convicted.

The decision followed a day-long motion hearing Friday amid the actor’s involuntary manslaughter trial over the death of “Rust” cinematographer Halyna Hutchins, who was fatally shot by Baldwin on the Santa Fe set of the Western in October 2021 when his revolver fired a live round.

The court discussed the defense’s motion in the absence of the jury. In an unexpected move, the special prosecutor on the case, Kari Morrissey, also called herself to testify on the matter.

During cross-examination of Morrissey, it was revealed that the other prosecutor in the case, Erlinda Ocampo Johnson, resigned from the case on Friday. Morrissey said it was because Johnson “didn’t agree with the decision to have a public hearing.”

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Court Holds Federal Ban on Home-Distilling Exceeds Congress’ Enumerated Powers.

Yesterday, in Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau, a federal district court in Texas held that federal laws banning distilled spirits plants (aka “stills”) in homes or dwellings exceed the scope of Congress’ enumerated powers. Specifically, the court concluded that the prohibitions exceed the scope of the federal taxing power and the Interstate Commerce Clause, even as supplemented by the Necessary and Proper Clause. The court further entered a permanent injunction barring enforcement of these provisions against those plaintiffs found to have standing (one individual and members of the Hobby Distillers Association.) The plaintiffs were represented by attorneys at the Competitive Enterprise Institute, and background on the case (and the various filings) can be found on CEI’s website here.

Hobby Distillers Association has the potential to be a significant post-NFIB challenge to the expansive of use of federal power. A few excerpts from the decision are below the jump.

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Former NRA CFO Wilson “Woody” Phillips Ripped Us Off & Now Owes Back Millions

As dedicated NRA supporters, we know it’s maddening to witness the betrayal from within our own ranks. The latest news reveals the agreed-upon settlement that Wilson “Woody” Phillips, the former CFO of the NRA, confessed to unethical conduct, further deepening the trust issues we’ve had with the organization’s leadership.

Phillips’ Deceitful Contract

Without disclosing their relationship, Phillips admitted to awarding a $1.36 million contract to HomeTelos, a tech company run by his then-girlfriend Nancy Richards. This was a blatant violation of NRA policies designed to prevent conflicts of interest. It took whistleblowers raising the alarm for Phillips to finally come clean about his actions long after the contract had ended.

Shielding LaPierre’s Extravagance

Phillips didn’t just stop at self-serving contracts. Among other things, Phillips was accused of approving invoices for LaPierre’s private jet flights to the Bahamas; facilitating payments to contractors owned by LaPierre’s friends; and allowing an arrangement through which the NRA paid back its longtime advertising agency, Ackerman McQueen, for travel, makeup and other expenses it covered for LaPierre and his wife. He was a key player in hiding Wayne LaPierre’s outrageous spending from the NRA’s internal controls. LaPierre, with Phillips’ assistance, misused millions of dollars on luxury travel, and even yacht trips. This was money meant to protect our Second Amendment rights, not fund their extravagant lifestyles.

$2 Million In Damages To The NRA

The Bigger Picture

This scandal is just the latest in a series of revelations about mismanagement at the NRA. We’ve seen how LaPierre, Phillips, and other top executives have abused their positions and our donations. The jury recently found LaPierre guilty of spending millions in NRA funds on personal luxuries and ordered him to repay almost $4.4 million. This betrayal cuts deep, especially for those of us who have invested our time, money, and trust in the NRA’s mission.

As the trial continues, Attorney General Letitia James is pushing for measures to ensure this kind of corruption doesn’t happen again. She’s seeking an independent monitor for the NRA’s finances and wants to ban LaPierre from any leadership roles in New York charities. Manhattan Judge Joel Cohen will decide the remaining issues in the case beginning July 15th, 2024, including whether former LaPierre and ex-general counsel John Frazer should be barred from charitable organizations in the state.

For us, the rank-and-file members. We need to reclaim our organization from these corrupt individuals and ensure our contributions are used to fight for our rights, not to bankroll the lavish lifestyles of a few dishonest leaders. It’s time for a thorough cleanup and a return to the principles that made the NRA a powerful defender of the Second Amendment. Let’s demand accountability and integrity from those who represent us.

Another take on SCOTUS killing Chevron Deference

What SCOTUS’ Chevron Deference Decision Means for Gun Owners and the ATF

Much of the coverage of the U.S. Supreme Court’s recent decision to overturn the Chevron Deference doctrine suffers from one of two problems: Either it’s written by lawyers for lawyers and is therefore unintelligible for anyone without a juris doctor, or it’s written by the corporate media and is chock-full of errors, omissions and untruths.

Bill Sack, director of legal operations for the Second Amendment Foundation, agreed to help clarify this landmark Supreme Court decision, which it turns out is good for gun owners and bad for the ATF.

Q: What is the Chevron Deference doctrine?

A: “By a vote of 6-3, the justices overruled their landmark 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which gave rise to the doctrine known as Chevron Deference. Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.

What the Chevron Deference doctrine did was when administrative agencies write regulations, they often will have their own administrative courts that interpret the regulations the agency has drawn up. For example, if the EPA makes a regulation that says a factory can only put out so much pollution, and there is a question as to whether a specific factory violated the regulation, the first place the factory has to go is the EPA’s administrative court, where an EPA administrative judge will interpret the EPA’s regulations. If the factory is unsatisfied with the EPA judge’s decision, they can appeal to federal court. What Chevron Deference did was this: If the administrative court’s decision was appealed, the federal court was then supposed to be heavily deferential to the findings of that administrative court.

Basically, the doctrine put a thumb on the scale in favor of the administrative agency.

The federal court was supposed to give a lot of deference to what the administrative agency found. From a liberty perspective, this is a separation of powers problem. The administrative agency, as an executive agency, is supposed to enforce the law. It’s not supposed to write the law. It’s not supposed to interpret the law. These alphabet agencies were writing regulations, which is a legislative function. They were enforcing the regulations, an executive function, and then they were interpreting the regulations, which is a judicial function.

The ATF and the alphabet agencies were doing the jobs of all three branches of government and if challenged, the federal courts were supposed to defer to what their administrative courts found. Even if the federal court thought the agency’s administrative court got it wrong, they didn’t always overrule the decision. They believed that these agencies were the experts, who were best at administering and interpreting the own regulations. For example, the courts acted like since the EPA found that the EPA did nothing wrong, we’ll defer to them since they’re the experts.”

Q: What specifically did the U.S. Supreme Court decide?

A: “Chevron was overturned formally based on the Administrative Procedures Act, which sets out the procedures that federal agencies must follow as well as instructions for the courts to review actions by those agencies. The Supreme Court decided that this deference was unlawful. The Supreme Court said federal courts should start from scratch, rather than showing deference to the alphabet agencies. The High Court removed their thumb from the scale.”

Q: How will this decision affect the ATF?

A: “Hopefully, it tones down all of the administrative agencies because it returns power to the judiciary. It should tone down the ATF just like the rest. They can no longer adjudicate their own rules and say, ‘we’re right because we said we’re right.’

The writing has been on the wall for some time that Chevron would get knocked down. In a few of the (Administrative Procedure Act) challenges, the ATF has said they are not relying on Chevron to make their point. I suspect they didn’t want to hang their hat on Chevron. During the pistol brace and bump-stock cases, the ATF specifically said they were not relying on Chevron Deference.

If Chevron Deference were still alive, the ATF could write a rule like pistol braces. If someone was prosecuted for it and believed they shouldn’t have been found guilty in an ATF court, the ATF could rely on Chevron Deference during the appeal.

It was a big tool that every administrative agency had in their quiver.”

Q: How will the Supreme Court’s decision affect cases already in litigation, such as bump-stocks, pistol braces, frame and receiver and who needs an FFL?

A: “I don’t believe it will affect any of the current cases against ATF because the ATF has already disclaimed using Chevron.”

Q: Will this decision have any impact on the hundreds of gun dealers who have had their Federal Firearm Licenses revoked by the ATF for minor clerical reasons? (This question was posed to Adam Kraut, the Second Amendment Foundation’s executive director.)

A: “No. Revocation is entirely within the administrative process. The ATF only has to show a single willful violation. It’s not ambiguous where it would be difficult to ascertain what Congress meant. The courts have defined what willful is — they did something the law said they can’t do. Whether it was intentional, or they transposed some numbers, it’s still willful. There’s no deference in that regard. They don’t have to defer to the ATF to interpret anything,” Kraut said.

Q: Do gun owners still need to go through the ATF’s administrative process or can they now go straight to federal court?

A: “They still have administrative courts. They will still adjudicate violations of their own regulations, but if you want to appeal, the federal court has much greater leeway to overturn the administrative agencies with Chevron gone. The courts should be much better equipped to keep the administrative state in check,” Sack said.

Q: How will the Supreme Court’s decision affect gun owners?

A: “Big picture — for ATF and all of the other administrative agencies — it will hold their feet to the fire to interpret their own regulations fairly.”

 

Gun Rights Groups Challenge California’s New Firearm Tax

The Second Amendment Foundation (SAF), along with several other gun rights groups and individual plaintiffs, has filed a lawsuit in San Diego County Superior Court challenging California’s recently implemented 11% tax on firearms, gun parts, and ammunition.

The lawsuit, named James v. Maduros, targets Nicolas Maduros, director of the California Department of Tax and Fee Administration.

Gun Owners of America Files Suit Against New Jersey’s “One Gun a Month” Law

The pro-Second Amendment group Gun Owners of America (GOA), along with its sister organization the Gun Owners Foundation, filed suit against New Jersey’s Attorney General Matthew Platkin, challenging him to defend the latest attack on Second Amendment rights in the Garden State.

The attack, clearly an act of derision for and challenge to the Supreme Court’s ruling in Bruen (New York State Rifle & Pistol Association, Inc. v. Bruen) in 2022, was instigated by anti-gun Democrats who used a thinly disguised excuse to pass the law: straw purchases.

Supreme Court Sidesteps Pending Gun Cases

The Supreme Court has decided against providing further guidance on the Second Amendment—at least for now.

The High Court released its final orders list for the term on Tuesday. It featured the Justices’ decision to grant, vacate, and remand (GVR) seven cases dealing with laws prohibiting specific people from having guns back to the lower courts for new decisions. They also vacated and remanded a case dealing with New York’s concealed carry restrictions and denied a request to review a collection of cases on Illinois’ ban on the sale of AR-15s and other popular firearms.

The orders list is the earliest indication of how active the Court plans to be on the Second Amendment moving forward. After a session that featured three gun-related cases—but just one Second Amendment case—the Court’s decision to kick the can on addressing a series of outstanding questions suggests a limited appetite among the Justices for further refinement of its Bruen test at this time.

The Court left little concrete evidence of its thinking in deciding against taking up the pending gun cases. Only the petition denial for the six separate lawsuits challenging the state and municipal “assault weapon” and magazine bans in Illinois featured comments. Justice Samuel Alito noted that he would have voted to review the cases immediately. Meanwhile, Justice Clarence Thomas issued a statement urging the Court to take up the issue once it receives a case that has advanced through the entire appellate process.

“This Court is rightly wary of taking cases in an interlocutory posture,” he wrote. “But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment. We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”

The decision to hold off on reviewing the constitutionality of Illinois’ hardware bans is likely to disappoint gun-rights advocates, who have long sought the High Court’s opinion on bans on popular firearms like the AR-15. However, the Court’s decision to sidestep the question of gun rights for felons and other prohibiting categories is also likely to frustrate the Biden administration.

The Department of Justice (DOJ) had previously asked the Court to address whether the federal gun bans for drug users and felons were constitutional after two separate federal appeals courts struck them down as applied to particular defendants. In United States v. Daniels, the Fifth Circuit held the federal drug user gun ban unconstitutional as applied to a specific non-violent marijuana user. In Garland v. Range, an en banc panel for the Third Circuit struck down the felon-in-possession ban as applied to a man with a 30-year-old conviction for lying to get food stamps.

After the Supreme Court upheld the federal gun ban for people subject to domestic violence restraining orders in last month’s U.S. v. Rahimi decision, the DOJ was unsatisfied with the guidance they offered. It again urged the Court to issue a decision on whether it can legally disarm felons under the Second Amendment.

“Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict,” Solicitor General Elizabeth Prelogar wrote.

“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” she added. “Under these circumstances, the better course would be to grant plenary review now.”

Instead, the Justices sent Range, Daniels, and five other related cases back down to their respective circuit courts “for further consideration in light of United States v. Rahimi.”

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In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.

Analysis: The Death of Chevron and the Future of Gun Litigation

Friday brought a rare instance of a no-nonsense Supreme Court decision unambiguously reversing prior precedent in a way that has far-reaching consequences–but maybe not for gun policy.

Loper v. Raimondo saw the Court stating, in no uncertain terms, that Chevron, “a decaying husk with bold pretensions,” is overruled. Twitter–and my email inbox–were ablaze with theories about what this might mean for gun litigation. In all likelihood, though, the impact on Second Amendment cases will be more muted than many expect.

It’s easy to understand why people might think Chevron would have had an outsized impact on the firearm space. After all, it seems as though the ATF–an administrative agency–has been the primary source of tumult for gun owners over the last three administrations. Where an admin agency is the source of pain, it seems natural to presume a legal concept that advantages administrative agencies would be a huge lever in that conflict. But practitioners and astute spectators alike would observe that Chevron hasn’t been invoked in the gun space very often at all.

Simply stated, Chevron’s death won’t be as dramatic as some commentators expect in the gun law arena largely because the ATF has been expressly disclaiming and attempting to avoid its application for years. Likely knowing Chevron was on shaky ground, and because its application to laws with criminal penalties is inappropriate, the government has fairly consistently simply asserted in gun cases that its legal arguments are ordinary legal arguments rather than agency arguments entitled to deference under Chevron.

To understand the tension here, it’s important to understand what Chevron actually did. Even when it was at its strongest, the application of Chevron was limited to situations where the statutory provision being litigated over was ambiguous, and there was a “permissible” agency interpretation. In those instances, the court would defer to the agency’s interpretation of the law, even if the court disagreed with the interpretation.

Chevron was always controversial, as it was in tension with the core legal principle that courts are the only ones who can say what the law is. That’s why the Supreme Court began walking Chevron back almost as soon as it was decided.

In fact, the Supreme Court hasn’t deferred to an agency interpretation under Chevron since 2016.

More pointedly, though, there is a critical reason you won’t see the government arguing that gun laws are ambiguous, which had always been a threshold question in Chevron cases. Why? Because gun laws almost always involve criminal penalties, and the longstanding rule of lenity states that in cases involving criminal consequences, any ambiguities in the law must be resolved in the least restrictive manner. This would make the road to proper reliance on Chevron, on the part of the government, a minefield of instant losses.

That is not to say that the death of Chevron won’t have any impact on gun litigation. But it will most likely be more nuanced than revolutionary.

For example, as explained, the ATF has been making its legal arguments for years now by basically saying, “this is how you ought to read the law, even if you weren’t deferring to us.” Even where Chevron wasn’t supposed to be applied, including in criminal cases, it’s quite likely the overarching idea of Chevron–that administrative agencies are experts and thus know more about the laws they are tasked with–has poisoned the minds of judges all the way down, manifesting as subconscious deference to the agency’s interpretation of the law.

This vestige of Chevron is probably the most lasting, and unfortunately–as the dissent in Loper makes clear–that idea will be very hard to shake. The simple fact is, though, that no matter how technical a statute is, they are meant to have come through the legislature, which is–for better or for worse–a bunch of lawyers. While nerdy, lobster-clawed science-types at the EPA might have nuanced understandings when it comes to sniffing nitrogen, that doesn’t change the fact that laws have to be consistently interpreted.

In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.

So 3, 4 or 5 years down the road, after the cases are appealed at the 7th circuit – again – SCOTUS might take an appeal. The ultimate purpose of the Supreme Court was to decide ‘cases and controversies’, and yet, they kick the can down the road, to what end, who knows.

U.S. Supreme Court Declines to Hear Challenges to Illinois Assault Weapons Ban

The U.S. Supreme Court has declined to hear a series of challenges to Illinois’ ban on assault weapons, leaving the controversial law in place for now but indicating potential future involvement, WTTW and The Center Square are reporting. The decision comes after the Seventh Circuit Court of Appeals upheld the ban last November, stating that “even the most important personal freedoms have their limits.”

In a Tuesday order, the high court denied petitions for writs of certiorari in six cases challenging the ban. Justices Samuel Alito and Clarence Thomas dissented, expressing a willingness to take up the issue once the cases reach final judgment. Justice Thomas wrote, “if the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can — and should — review that decision once the cases reach a final judgment.”

The Illinois ban, part of the Protect Illinois Communities Act, was enacted in response to the tragic mass shooting at a Highland Park July 4 parade in 2022, where a gunman using an AR-15-style rifle killed seven people. The law prohibits the purchase and sale of firearms and accessories classified as assault weapons and imposes limits on magazine capacities for both handguns and long guns. Existing owners of these firearms were required to register them with the Illinois State Police by the end of 2023.

Justice Thomas criticized the Seventh Circuit’s decision, calling it “nonsensical” and arguing that common semiautomatic firearms like the AR-15 are protected under the Second Amendment. He cited his dissent in a similar 2015 case, Friedman v. City of Highland Park, to support his position.

The Supreme Court’s refusal to hear these cases leaves unresolved a significant legal question about the extent of Second Amendment protections. The Seventh Circuit’s ruling found that the guns and high-capacity magazines regulated under the Protecting Illinois Communities Act “lie on the military side of that line and thus are not within the class of Arms protected by the Second Amendment.”

Justice Thomas responded, “In my view, Illinois’ ban is ‘highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes,’” adding that it is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not “Arms” protected by the Second Amendment.

While this decision denies immediate relief to the challengers, it sets the stage for a potential future Supreme Court review. The focus now shifts to the Southern District of Illinois federal court, where four consolidated gun ban challenges are expected to move forward with a bench trial scheduled for September 16 in East St. Louis.

Trump Wins: Supreme Court Says Presidents Covered by Immunity for ‘Official Acts’

The U.S. Supreme Court ruled in favor of former President Donald Trump on Monday, holding in a 6-3 decision that presidents are covered by limited immunity from criminal prosecutions for actions taken while in office.

The decision is here.
The Court held, according to the summary of the decision:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The Court also ruled that a president is entitled to a pretrial hearing on immunity that can be appealed all the way to the Supreme Court before a trial begins. 

This means that any trial of the former president will take place after the November 5, 2024, election.

Chief Justice John Roberts, writing the opinion for the Court’s conservative majority, said:

This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.…

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. 

The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

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So there you are.  A return to the rule of law, being treated as just the opposite.  Par for the course in today’s political discourse, alas.

The Supreme Court, Chevron, and the Political Class’s Worst Nightmare: Accountability.

Goodbye, Chevron deference.  Larry Tribe is already mourning the Supreme Court’s overturning of NRDC v. Chevron, in the Loper Bright and Relentless cases, as a national catastrophe:

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Oh, the humanity!

Well, speaking as a professor of Administrative Law, I think I’ll bear up just fine.  I’ve spent the last several years telling my students that Chevron was likely to be reversed soon, and I’m capable of revising my syllabus without too much trauma.  It’s on a word processor, you know.  As for those academics who have built their careers around the intricacies of Chevron deference, well, now they’ll be able to write about what comes next. And if they’re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.

And that wasn’t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class’s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.

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Sure, Norm, whatever you say.

But how about let’s look at what the Court actually did in Chevron, and in the Loper Bright and Relentlesscases that overturned it, and in SEC v Jarkesy, where the Court held that agencies can’t replace trial by jury with their own administrative procedures, and in Garland. v. Cargill, where the Court held that agencies can’t rewrite statutes via their own regulations.  I don’t think you’ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.

At root, Chevron v. Natural Resources Defense Council is about deference.  Deference is a partial abdication of decisionmaking in favor of someone else.  So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing.  I’ve learned that somehow he always seems to pick the best thing.

Deference doesn’t mean “I’ve heard your argument and I’m persuaded by it,” (though something like that is misleadingly called “Skidmore deference, “ but isn’t actually deference at all).  Deference means “even if I would have decided this question differently, I’m going to go with your judgment instead.”

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