Category: Courts

Legislators considering Constitution before passing laws? THE HORROR

When laws are challenged, they’re challenged on constitutional grounds. Is this law in keeping with the Constitution or is this a case of legislative overreach?

In fact, lawmakers are supposed to at least consider such things before passing laws. After all, they swear to support and defend the Constitution, which one would imagine requires them to consider it at a minimum before passing some bill.

But it seems that the folks at the Huffington Post are upset that lawmakers are considering court rulings before passing gun control. They made this pretty clear recently.

In fact, they’re so upset, they said it all over again.

Left In The Legislative Lurch

Eight more states have laws similar to California’s assault weapons ban that could be affected if the Supreme Court ultimately weighs in.

The expectation that these laws may be doomed is already complicating the politics of passing new ones like them.

In New Mexico, Democratic Gov. Michelle Luján Grisham has repeatedly urged the legislature to send her an assault weapons ban to sign this session, but lawmakers tabled the effort — partly over concerns that it wouldn’t withstand scrutiny in federal court.

“There’s absolutely no point to passing new laws which federal courts will strike down and which are clearly going to be deemed unconstitutional,” state Sen. Joseph Cervantes, a Democrat, tweeted last month.

With those lawsuits still playing out, the future of gun policy remains in flux. But that legal panorama makes it hard to imagine clear lanes for reform in the near future.

“We’re in a very difficult spot with that Bruen ruling,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “Even though it was only about concealed carry, it’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”

Now, in fairness, this is only one part of a much longer piece lamenting the rulings and the impact they’re having on gun control.

Still, it’s interesting that they’re still complaining about states not passing gun control because they figure it’ll be tossed by the courts.

I’m sorry, that’s not a bug. It’s a feature.

Huffington Post can be big mad all they want, but the truth of the matter is that gun control isn’t constitutional. The author tries to get hung up on the militia clause at one point–a matter that has been thoroughly and completely debunked–and then laments the text and history test laid down in Bruen, but at no point can they actually make a legitimate case that gun control is within keeping behind the text or spirit of the Second Amendment.

That’s unsurprising, of course.

I’m glad to see legislatures hold up a bit before infringing on people’s rights. I’m upset that they’re only starting to do it just now, but this is a case of better late than never.

If they’re holding up, that’s great, but as the piece also notes, a lot of places aren’t. In truth, that is the real problem, not those exercising a bit of caution and, dare I say, common sense.

Then again, it’s Huffington Post. What can you really expect?

Judge Blocks Feds From Enforcing ‘Ghost Gun’ Ban Against Polymer80

The country’s largest unfinished firearm parts maker is no longer subject to President Biden’s ban on homemade gun kits.

On Sunday, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, a George W. Bush appointee, decided the Bureau of Alcohol, Tobacco, Firearms, and Explosive (ATF) can’t enforce its new “ghost gun” rule against Polymer80. He found the ATF exceeded its authority when it attempted to reinterpret what constitutes a firearm in order to restrict sales of unfinished parts and homemade gun kits.

“The Final Rule’s redefinition of “frame or receiver” conflicts with the statute’s plain meaning. The definition of ‘firearm’ in the Gun Control Act does not cover all firearm parts. It covers specifically ‘the frame or receiver of any such weapon’ that Congress defined as a firearm,” Judge O’Connor wrote in Polymer80 v. Garland. “That which may become a receiver is not itself a receiver.”

The ruling comes just a few weeks after Judge O’Connor issued a similar order in a separate case involving several other major makers of unfinished gun parts. It further restricts the ATF’s ability to enforce its “ghost gun” rule, dealing a blow to President Joe Biden’s attempts to unilaterally implement new gun restrictions through ATF rulemaking. Taken together with the full Fifth Circuit’s decision to strike down the bump-stock ban, it also spells more bad news for President Biden’s more recent pistol-brace ban.

Unfinished gun parts and homemade gun kits have been at the center of the gun-control debate for years because they can be sold without serial numbers or background checks since they require significant finishing to be made into functional firearms. The Biden Administration has sought to expand the definition of “firearm” so that those selling the unfinished part would be considered “engaged in the business” of making and dealing firearms. That would require them to obtain federal licenses to make and sell their products. Gun-rights advocates have opposed the expansion of ATF power because they believe it threatens their Second Amendment rights.

However, this case was not decided on Second Amendment grounds. Instead, Judge O’Connor ruled the ATF’s actions violate the Administrative Procedure Act (APA), which governs how much latitude federal agencies have when interpreting and enforcing federal laws.

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In NCLA Win, Federal Judge Rejects Motion to Dismiss in Government-Induced Censorship Lawsuit.

Washington, DC (March 20, 2023) – In a thorough and well-reasoned decision, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has denied government defendants’ motion to dismiss in State of Missouri, et al. v. Joseph R. Biden, Jr., et al. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents renowned epidemiologists Drs. Jay Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Ms. Jill Hines, in a lawsuit that has exposed an elaborate, multi-agency federal government censorship regime. Judge Doughty wrote, “The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.”

Discovery in the lawsuit unequivocally establishes that at least eleven federal agencies and sub-agencies, including CDC and DHS, directed social media companies to censor viewpoints that conflict with the federal government’s messaging on topics ranging from Covid-19 to elections. Federal officials engaged in a lawless, expansive censorship campaign that employed illicit tactics—including coercion, collusion and coordination—on social media companies to suppress the airing of disfavored perspectives on Covid-19 and other topics. As a direct result of state action, NCLA’s clients were blacklisted, shadow-banned, de-boosted, throttled, and censored, merely for articulating views opposed to government-approved views on Covid-19 restrictions and regulations. Judge Doughty held that “Plaintiffs have plausibly alleged state action under the theories of joint participation, entwinement, and the combining of factors such as subsidization, authorization, and encouragement.”

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Cert. Petition on the First Amendment and Coercive Government Threats in NRA v. Vullo.

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA’s ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it’s a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA’s side in the District Court.) Here’s our Introduction:

The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials “threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with” a controversial speaker, on the ground that disfavored political speech poses a regulable “reputational risk.”

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute “general backlash” against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court’s precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit’s precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actions—including press releases, official regulatory guidance, and contemporaneous investigations and penalties—issued by or on behalf of New York’s powerful Department of Financial Services (“DFS”) against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed “reputational risk” of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo’s actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

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Federal Judge Blocks California Handgun Restrictions

California can’t ban residents from buying modern handguns.

That’s the ruling handed down by Federal District Judge Cormac J. Carney, a George W. Bush appointee, on Monday. He found California’s requirement that all new pistols sold in the state include a series of uncommon or even theoretical safety devices is unconstitutional. He ruled the regulation, which has resulted in no new handgun models being sold to civilians in nearly a decade, violates the Second Amendment.

“Californians have the constitutional right to acquire and use state-of-the-art handguns to protect themselves,” Judge Carney wrote in his preliminary injunction for Boland v. Bonta. “They should not be forced to settle for decade-old models of handguns to ensure that they remain safe inside or outside the home.”

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Monday a big court day for 2nd amendment, gun laws, gun rights

The U.S. Court of Appeals for the Second Circuit, in Manhattan, will hear five second amendment cases Monday.

“My hopes are Monday evening the case is decided and New Yorkers get their gun rights back,” says Oneida County’s assistant pistol licensing officer, Dan Sullivan.

It’s not clear if the judges will rule from the bench, or, reserve decision and issue a written one at a later date. But Sullivan is hopeful for the outcome.

“You’ve got the highest court in the land and you’ve got three federal judges who’ve stated in writing that the carry concealed improvement act is not constitutional, so I’m hoping we get our gun rights back,” says Sullivan.

“I think 70 or 80% of gun owners don’t have a clue what the law is right now,” says Sullivan. “I think there’s an awful lot of people that are carrying like they’ve always carried, and I don’t think they’re doing that out of maliciousness, I think they’re doing that out of simply not knowing what the law is right now”

For now, New York’s Concealed Carry Improvement Act remains intact.

Falls pastor may be headed to U.S. Supreme Court over New York gun law

It’s a case that has already made its way to the United States Supreme Court.

And it’s likely to return there.

But first, Niagara Falls pastor Jimmie Hardaway Jr.’s constitutional challenge to New York’s Concealed Carry Improvement Act (CCIA) faces a Monday morning hearing before a three-judge panel of the U.S. Second Circuit Court of Appeals. The New York City-based court is widely considered one of the most influential appeals courts in the nation.

Hardaway, of Trinity Baptist Church, and Rev. Larry Boyd, pastor of Open Praise Full Gospel Baptist Church in Buffalo, challenged the constitutionality of the CCIA, along with two national pro-gun groups, Las Vegas-based Firearms Policy Coalition and Bellevue, Washington-based Second Amendment Foundation in a lawsuit filed in the U.S. District Court for the Western District of New York. The suit sought to block a provision of the CCIA that bars individuals from bringing firearms into places of worship.

Boyd and Hardaway also sought to have the CCIA struck down in its entirety as unconstitutional.

Hardaway and Boyd have argued in the case that they would suffer irreparable harm, and that their Second Amendment rights would be violated, if the places of worship restriction was not blocked. In an affidavit accompanying the original lawsuit, Hardaway acknowledges that he is a member of the two pro-gun groups involved in the case and that he is licensed to carry a handgun in New York.

“Prior to the enactment and enforcement of the Place of Worship Ban, I would consistently carry a firearm on Trinity Baptist Church’s premises,” Hardaway said in the affidavit. “I would intend to keep carrying for self-defense and to keep the peace at Trinity Baptist Church.”

U.S. District Court Judge John L. Sinatra Jr. conducted an expedited hearing on Hardaway and Boyd’s lawsuit and, just hours after oral arguments in the case, issued a 40-page decision and order that granted a temporary restraining order (TRO) blocking the enforcement of the places of worship restriction.

New York Attorney General Letitia James, whose office defended the CCIA, had sought to remove Sinatra, an appointee of former President Donald Trump, charging that Hardaway and Boyd had engaged in “judge shopping” by having the case directed to Sinatra.

Two weeks later, in a decision and order that followed almost word-for-word and page-for-page his decision on the TRO, Sinatra granted the pastors a preliminary injunction that blocked the enforcement of the places of worship restriction. Weeks later, Sinatra ruled the entire CCIA was unconstitutional.

James appealed Sinatra’s decisions to the Second Circuit and asked the appeals court to block his rulings while they considered them. The attorney general asked the appeals court to overturn, “in each and every aspect,” Sinatra’s rulings.

The Second Circuit judges issued a stay on Sinatra’s decisions, which effectively reinstated the CCIA and the places of worship restriction.

Hardaway and Boyd asked the U.S. Supreme Court to intervene and overturn the stay. They argued that their rights under the Second Amendment had been “indefinitely suspend(ed).”

“Applicants, along with countless others like them, are being irreparably harmed each day this patently unconstitutional law remains in place, eviscerating the right of ordinary, law-abiding New Yorkers to carry firearms in public for self-defense,” Hardaway and Boyd’s lawyers told the high court. “Additionally, this case presents issues of national importance with respect to states that enact laws in explicit defiance of this court’s decisions.”

In January, the court, without any noted dissents, allowed the stay to remain in place while the Second Circuit proceedings continued.

The appeals court panel will hear up to 20 minutes, 10 minutes for each side, of arguments in the case. The case has attracted friend of the court briefs from both pro-gun control and pro-gun rights groups, as well as the attorneys general from a dozen states opposed to the New York law.

In his decision and order, Sinatra wrote that the State of New York had responded to the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen by enacting “even more restrictive legislation” than what the high court had declared unconstitutional.

“The court reiterates that ample Supreme Court precedent addressing the individual’s right to keep and bear arms — from Heller and McDonald to its June 2022 decision in Bruen — dictates that New York’s new place of worship restriction is equally unconstitutional,” Sinatra wrote.

During oral arguments in the case, Sinatra appeared dismissive and openly hostile to the arguments being made by lawyers for the state.

“In Bruen, the (Supreme Court) made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation’s historical tradition,” Sinatra wrote in his decisions. “New York fails that test. The State’s exclusion is, instead, inconsistent with the Nation’s historical traditions.”

Hardaway has maintained that his church has an “open-door policy” that carries risk over “who will walk in the door for services.” The pastor also claims that the “horrific murders” of nine parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in 2015, has “stiffened (his) resolve to carry for self-defense and to keep the peace at Trinity Baptist strong

Should the Fifth Circuit Reconsider Rahimi En Banc?

The Fifth Circuit’s decision in United States v. Rahimi, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. On March 2, a month after it initially released its decision, the Fifth Circuit panel withdraw its original opinion and substituted a revised version.

The end result is the same, and the updates to the controlling opinion appear to be modest, but Judge Ho significantly expanded his concurring opinion, in which he sets out to “explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.” Judge Ho emphasizes that “[t]hose who commit violence, including domestic violence, shouldn’t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated.”

But because the law at issue in Rahimi “disarms individuals based on civil protective orders—not criminal proceedings,” the panel found no “analogous historical tradition sufficient to support” it. That was especially true, given the way that civil protective orders are used (and abused) in our system, including by a common practice of issuing “mutual restraining orders” in domestic violence cases, a practice that results in the federal prohibition actually disarming domestic violence victims.

Judge Ho’s concurrence also highlights the importance of the Fifth Circuit getting this case right. He notes that before Bruen, circuit courts routinely misapplied Heller despite frequent criticism from the members of the Supreme Court that they were “disfavoring the Second Amendment.” And he correctly recognizes that Bruen was a response to the lower courts’ intransigence: “The Supreme Court has now responded by setting forth a new legal framework in Bruen. It is incumbent on lower courts to implement Bruen in good faith and to the best of our ability.”

Of course, the issue is fraught, so Rahimi has received a lot of attention. Given that it invalidated a federal statute, it seems like a likely candidate for catching the Supreme Court’s attention too. In fact, it appears that the Justice Department views this as a particularly good vehicle to ask the Supreme Court immediately to consider (or reconsider) some of the effects of its decision in Bruen. Attorney General Merrick Garland made a statement over a month ago, vowing to “seek further review of the Fifth Circuit’s … decision,” but there is no indication he intends to seek that review from the Fifth Circuit.

For those of us who believe Bruen got it exactly right, Rahimi may be a bad vehicle for the Supreme Court to flesh out its decision in Bruen. As much as the Justices may try to focus on the bigger-picture legal issues, bad facts make bad law, and Rahimi is full of bad facts. Even if the law that kept him from possessing firearms in this case is unconstitutional—and the panel opinion makes a compelling case that the law lacked support from the founding era—it seems clear that Mr. Rahimi is exactly the sort of person who should be able to be disarmed consistent with the Second Amendment. He was involved in five shootings in two months, including one instance when he “fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”

The Fifth Circuit should consider rehearing the case en banc. This would have the advantage of setting the clearest possible precedent to govern future Second Amendment challenges under Bruen and, perhaps just as importantly, permitting other Second Amendment challenges to get to the Supreme Court first. The federal rules of appellate procedure say a case is a good candidate for reconsideration if it “involves a question of exceptional importance.” The issue in Rahimi meets that standard several in different ways.

The Third Circuit recently heard en banc argument in United States v. Range, a case raising the constitutionality of the federal law against felon possession of a firearm—a separate subsection of the same law at issue in Rahimi—and it decided the issue was worth en banc treatment just three days after receiving the petition for rehearing was filed. More recently, the Eleventh Circuit issued a decision in National Rifle Association v. Bondi, holding that a Florida law restricting the Second Amendment rights of 18-to-20-year-olds to purchase a firearm was constitutional under Bruen. That same day, before any petition for rehearing could be filed, a judge of that court apparently called for an en banc poll, because the court entered an order withholding issuance of the mandate.

Under Fifth Circuit Internal Operating Procedures, any judge may initiate a vote to take a case en banc, even without a petition. And since it appears no petition for rehearing is forthcoming from the Justice Department, the judges of the Fifth Circuit should exercise that prerogative here. Rahimi may well wind up at the Supreme Court anyway, but given the importance of the issues, and Judge Ho’s (correct) assessment that Bruen has tasked the courts of appeals with fleshing out its method first, the Fifth Circuit may do well to consider Rahimi as a whole court first.

The Buckeye Institute Urges Court to Overturn New York’s Unconstitutional Gun Law
Mar 14, 2023
Columbus, OH – On Monday, The Buckeye Institute filed an amicus brief in Christian v. Nigrelli with the U.S. Court of Appeals for the Second Circuit on behalf of Project 21, a national network of black political, civic, and business leaders. In its brief, The Buckeye Institute argues that New York’s Conceal Carry Improvement Act violates the right of the citizens of New York, particularly black New Yorkers, to keep and bear arms, which the U.S. Constitution guarantees.

“For decades, African Americans and other racial minorities were the targets of firearms regulations that prevented them from exercising their right to bear arms, regulations that were often enacted with racial animus,” said David C. Tryon, director of litigation at The Buckeye Institute. “But as The Buckeye Institute argues on behalf of its client, ‘Historical regulations designed to oppress racial minorities or show distrust or animus towards “disfavored” groups, cannot be the basis for infringing on the right to bear arms.’”

In New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court clearly told New York that it was unconstitutional to deny people their Second Amendment rights by forcing citizens to prove they have a “special need” before they could obtain a license to carry a firearm. In its brief, The Buckeye Institute shows that New York has simply substituted “special need” with “moral character” to deny members of disfavored groups—such as minorities and the urban poor—their constitutional right to keep and bear arms.

Here’s how progressive lawyers are using public nuisance lawsuits to outlaw guns
O.H. Skinner says public nuisance lawsuits are the next ‘Trojan horse’ for the progressive agenda

EXCLUSIVE – A consumer protection group is warning Republican governors against attempts by left-leaning lawyers to use public nuisance lawsuits as a backdoor way to outlaw guns.

The Alliance For Consumers (AFC), a nonprofit organization aimed at “ensuring consumer protection efforts, class action lawsuits, and attorney general enforcement actions benefit consumers,” sent a letter to all GOP governors Friday saying that since the many state legislatures have recently flipped to a Republican majority, they should be on the lookout for progressive activists attacking gun rights through these legal actions.

“With victories through the legislative process becoming harder to achieve, the progressive left is increasingly looking to an alliance of activists, officials, and trial lawyers to weaponize the judicial system against conservatives and impose key policy priorities by way of public nuisance lawsuits,” AFC president O.H. Skinner wrote.

“Under the guise of compensation for injuries to the overall public interest, these lawsuits open the door to courts imposing sweeping policy solutions outside the traditional governmental processes or otherwise reshaping the economy through massive money transfers,” Skinner added.

Public nuisance laws vary from state to state. Historically, they have been used to protect consumers and the public against things like polluted waterways or hazardous public spaces.

However, Skinner said “activists have found a way to use the court system as a weapon to force companies and consumers to comply with a progressive worldview without legislative oversight or public scrutiny.”

“If you hear someone say, ‘We should bring a nuisance case,’ that is a Trojan horse to accomplish something that you probably don’t agree with.” Skinner said in an interview with Fox News Digital.

Skinner claims that “the true goal of most nuisance suits over things like plastics, fossil fuels or firearms is seemingly to remove products and services from in the market that do not align with the progressive agenda.”

Skinner said that progressive trial lawyers will try to make the case that just as fossil fuels and plastics are bad for the environment that is shared by the public, guns can also cause public harm, and therefore, courts should curb their use because of this “public nuisance.”

Once example of this already taking place, Skinner noted, is a case from 2022 brought by a leading personal injury law firm – Napoli Shkolnik— that filed public nuisance suits on behalf of New York cities Buffalo and Rochester.

According to Skinner, that suit claimed that major American firearms manufacturers’ work to design, produce, market and sell has “created, contributed to, and maintained the public nuisance of unlawful possession, transportation and disposition of firearms, and the utilization of guns in the commission of an offense.”

“Activists have largely been able to hide the ideological aspects of public nuisance litigation,” Skinner said. “But make no mistake: public nuisance claims are about liberal control, not just about money, and certainly not about helping consumers.”

Montana Attorney General Austin Knudsen told Fox News Digital that while public nuisance laws “have their place” and are a “tool that needs to exist,” governors and state legislators should consider making changes to such laws so they are not abused.

Fourth Circuit panel appears skeptical of Maryland’s “handgun qualification license”

Back in 2013, as part of its Firearms Safety Act, the Maryland legislature created a Handgun Qualification License, which does not actually permit you to possess a handgun. Instead, it’s a permission slip to undergo a background check and go through the process of purchasing a firearm at retail. Not only does the law impose an additional and extraneous burden on would-be gun buyers, it adds to the cost of exercising your right to keep and bear arms by mandating a four-hour training class at a live-fire range as well as paying for your fingerprints to be taken and submitted to the state police.

The law is the subject of litigation filed by Maryland Shall Issue, and on Friday majority of a three-judge panel in Richmond seemed skeptical of Maryland’s argument that the law should be upheld despite the fact that the Attorney General’s office could find no analogue to the HQL in the historical record.

“The historical tradition is the substantive limitations that are furthered by the HQL law,” Assistant Attorney General Ryan Dietrich said. “Those are ensuring that dangerous, subversive, non-virtuous folks do not get deadly firearms.”

Dietrich argued that firearm competency is a tradition that was alive and well during the founding era. Dietrich cited a law from that time requiring citizens to pledge their loyalty to the United States or be disarmed as an example of the long tradition of limitations on the Second Amendment.

U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, disagreed with the example, stating that the loyalty test has to do with taking away firearms while the Maryland law relates to preclearance.

Richardson used numerous hypothetical situations to try to get Dietrich to concede that the HQL requirement infringes on Second Amendment rights.

“Is your argument that that time period where he cannot buy a firearm to protect his family and his home is not an infringement?” the judge asked.

Dietrich responded that although the law affects law-abiding citizens’ Second Amendment rights, it does not infringe upon them.

Richardson had fun with Dietrich’s bizarre claims, asking if anyone’s Fourth Amendment rights would be infringed upon if they and every other resident in their city were confined to jail for a month while police determined if any of them were bad actors. As Richardson pointed out, the Fourth Amendment protects against “unreasonable” searches and seizures, but the Second Amendment doesn’t talk about any “reasonable infringements.” Any and all infringements are unconstitutional under the Second Amendment’s language, and that would presumably include needless delays or extraneous licensing procedures.

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Federal Court Issues Flawed Decision Striking Down Missouri Gun Sanctuary Law
The ruling has significant shortcomings and may be overruled on appeal. The Biden Administration’s position in this litigation is wrong for much the same reasons as the Trump Administration was wrong to target immigration sanctuaries.

On Tuesday, federal district court Judge Brian Wimes issued an important ruling striking down Missouri’s Second Amendment Protection Act (SAPA). SAPA is a “gun sanctuary” law that restricts state and law-enforcement cooperation with efforts to enforce federal gun control laws.

Gun sanctuary laws enacted by red states are in large part modeled on immigration sanctuary laws enacted by numerous blue states and localities, in order to limit state cooperation with enforcement of federal immigration laws. During the Trump Administration, the federal government lost numerous lawsuits challenging the legality of immigration sanctuaries (I went over those cases in detail in a Texas Law Review article, and a piece for the Washington Post). Imitation is the sincerest form of flattery, and several red states have decided to imitate the blue states’ success. Courts—including both liberal and conservative judges—were right to rule in favor of immigration sanctuaries, and Judge Wimes should have applied the same principles in the gun context, as well.

Judge Wimes correctly recognizes that “Missouri cannot be compelled to assist in the enforcement of federal regulations within the state.” Longstanding Supreme Court precedent holds that the federal government cannot “commandeer” state officials to help enforce federal law. That precedent played a key role in the Trump Administration’s defeats in various immigration sanctuary cases, most notably in the California “sanctuary state” case, which is closely analogous to the Missouri gun litigation. Judge Wimes could have saved himself a lot of time and effort by simply applying the same logic here.

Instead, the court concludes that SAPA violates the Supremacy Clause of the Constitution (which mandates that constitutionally authorized federal law is supreme over state law) because the Missouri law goes beyond merely refusing to help the feds and actually “regulate[s] federal law enforcement” and  “interfere[s] with its operations.” But, in reality, SAPA does no such thing. Its provisions merely impose constraints on state and local officials. To the extent that may not be true, Judge Wimes should have struck down applications of the law to federal officials, while leaving intact the constraints it imposes on state ones.

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Bid to block Illinois’ new assault weapons ban now before federal appeals court

CHICAGO – The federal appeals court in Chicago has its first opportunity to weigh in on Illinois’ controversial assault weapons ban, as challenges to the law continue to advance.

Naperville gunshop owner Robert Bevis asked the 7th U.S. Circuit Court of Appeals for an injunction against the law late Tuesday. He wants the order in place while he appeals a recent ruling from U.S. District Judge Virginia Kendall who found the law to be “constitutionally sound.”

Bevis asked that the injunction, if granted, apply to everyone affected by the state law.

The case appears to be the first to challenge the ban in the federal appellate court. The 7th Circuit now has the opportunity to block the measure signed by Gov. JB Pritzker on Jan. 10 — which immediately banned the sale of military-style weapons and high-capacity magazines — or to side with Kendall.

The court could also resolve Bevis’ request on other grounds.

An appellate court has upheld a Temporary Restraining Order (TRO) against Illinois’ assault weapons ban, and expanded it to cover the entire state.

Kendall ruled last month that “because assault weapons are particularly dangerous weapons … their regulation accords with history and tradition.” But Bevis’ lawyers have accused Kendall of error. Under previous Supreme Court rulings, they said weapons must be found to be “dangerous and unusual” in order to be banned.

“An arm that is commonly possessed by law-abiding citizens for lawful purposes is, by definition, not unusual,” they wrote in their court filing Tuesday. “Thus, such an arm cannot be both dangerous and unusual and therefore it cannot be subjected to a categorical ban.”

They told the 7th Circuit the matter “is not a close case.”

McHenry County’s State’s Attorney Patrick Kenneally requested an emergency restraining order to block the law from taking effect in McHenry County.

It’s unclear how quickly the appeals court might rule. But Bevis’ lawyers insist his business has suffered since the assault weapons ban went into effect. They wrote that 85% of the firearms sold by his business, Law Weapons & Supply, are banned by the state law and a similar Naperville ordinance.

“Cash reserves have been depleted, and as a result, [Law Weapons & Supply] has had to lay off employees and ask Bevis’ family to work without pay,” Bevis’ lawyers wrote. “Bevis has extended his personal credit, missed personal payments like home and car payments, maxed his credit limits, and taken out loans to pay the monthly bills.”

They wrote that Law Weapons & Supply will not be able to abide by its property and equipment leases “if these bans remain in effect any longer.”

“In short, [Law Weapons & Supply] will be put out of business if these laws are enforced,” they wrote.

Bevis’ lawsuit is one of several challenges filed in state and federal courts since Pritzker signed the law. Four federal challenges have been consolidated in southern Illinois’ federal court, where state lawyers recently argued the weapons restricted by the new law aren’t commonly used for self-defense.

“By design and in practice, they exist for offensive infliction of mass casualties,” they argued in a recent brief.

Meanwhile, the Illinois Supreme Court agreed this week to give accelerated consideration to issues that have been raised in state court. The move was prompted by an order last week by a Macon County judge.

That judge followed the lead of earlier Illinois appellate court rulings and found that the assault weapons ban violates the state constitution’s equal protection and special legislation clauses.

Bruen’s “chaos” is a much-needed correction

Ahead of four decisions on California gun laws that are expected to soon be released by U.S. District Judge Roger Benitez, the Los Angeles Times is advancing the narrative that the Supreme Court’s Bruen decision is sowing “chaos” in the courts. But as we discuss on today’s Bearing Arms’ Cam & Co, upending the untenable status quo is a good thing, particular given how the judiciary has abused “interest balancing” tests to regularly uphold infringements on a fundamental right.

Reporter Kevin Rector’s coverage of how the courts have dealt with the Supreme Court’s edict that those interest balancing tests are inappropriate is clearly slanted; not only in the front-page story itself, but he promoted his piece on social media.

Yes, SCOTUS has rejected the interest-balancing tests that many lower courts adopted after the Heller decision in 2008, but as Justice Clarence Thomas made clear in Bruen, that was never the appropriate test when it comes to gun control laws”

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.

What Rector (and the vast majority of the sources he spoke to) object to is the fact that the Court’s explicit instructions to discard those interest-balancing tests in favor of a text, history, and tradition test puts laws like California’s ban on so-called assault weapons on shaky legal ground. No longer can the courts decide that even though a particular gun control law intrudes on the Second Amendment rights of citizens, it’s okay because the government has an interest in promoting public safety. Now those laws must be justified through the historical record; something that is going to be difficult given that the gun control movement is a fairly modern creation.

“This new ‘history and tradition’ test that the Supreme Court established last June is wreaking havoc on America’s gun laws,” said Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law. “Instead of having a reasonable debate over whether a ban on assault weapons is good policy or not, we have to debate whether a ban on assault weapons has historical antecedents.”

With all due respect to Winkler, the courts aren’t the right venue for a “reasonable debate” on the policy of a gun ban. Legislators can and will continue to debate banning “assault weapons”, but it’s up to the judiciary to determine if those laws are constitutionally sound. And as much as the law professor complains that Bruen is wreaking havoc on gun laws, I’d argue that when appellate courts like the Ninth Circuit refuse to ever find a gun control law unconstitutional the judiciary is wreaking havoc on a fundamental civil right.

The Bruen decision will not lead to every gun control law being overturned, as disappointing as that might be for Second Amendment advocates. Heck, the Court said that “shall issue” concealed carry regimes are presumptively constitutional, and the justices pointed to places like schools, legislative assemblies, and polling places as locations that could likely be labeled “sensitive places” without much legal trouble. But the Court’s opinion should also take an “assault weapons” ban and many other modern inventions of the gun control lobby off the table, at least if judges are willing to abide by what SCOTUS had to say.

As we’ve seen in places like Oregon, though, some judges are still finding new and creative ways to uphold gun control laws by stretching the boundaries of an historical analogue beyond credulity. Bruen may have put the lower courts on notice, but as valuable a course correction on Second Amendment jurisprudence as it might be, it can’t and won’t be the last word for the Court on our right to keep and bear arms.

Federal judge rules Missouri state gun law is unconstitutional
The Justice Department filed a lawsuit in February 2022 over the state law that declared “invalid” several federal gun regulations that don’t have an equivalent statute in Missouri.

WASHINGTON — A Missouri state law that declared several federal gun laws “invalid” is unconstitutional, a U.S. federal judge ruled on Tuesday, handing the U.S. Justice Department a victory in its bid to get the law tossed out.

At issue was a measure Republican Governor Mike Parson signed into law in 2021 that declared that certain federal gun laws infringed on the rights of individuals to keep and bear arms under the U.S. Constitution’s Second Amendment.

U.S. District Judge Brian Wimes in Jefferson City, Missouri, said the state’s Second Amendment Preservation Act (SAPA) violates the U.S. Constitution’s Supremacy Clause, which holds that federal laws take priority over conflicting state laws.

Wimes, an appointee of former President Barack Obama, in a siding with Democratic President Joe Biden’s administration called the practical effects of the Republican-led state’s law “counterintuitive to its stated purpose.”

“While purporting to protect citizens, SAPA exposes citizens to greater harm by interfering with the federal government’s ability to enforce lawfully enacted firearms regulations designed by Congress for the purpose of protecting citizens,” he wrote.

Missouri Attorney General Andrew Bailey, a Republican, in a statement promised an appeal, saying he was committed to “defending Missourians’ fundamental right to bear arms.”

“If the state legislature wants to expand upon the foundational rights codified in the Second Amendment, they have the authority to do that,” he said.

The Justice Department did not immediately respond to requests for comment.

Under the Missouri law, also known as H.B. 85, state or local law enforcement agencies could face a $50,000 fine if they knowingly enforced federal laws that the state measure purportedly nullified.

In a lawsuit filed in February 2022, the Justice Department argued the law had caused many state and local law enforcement agencies to stop voluntarily assisting enforcing federal gun laws or even providing investigative assistance.

The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.
Cockrum v. State of Texas 1859