Category: Courts

The Perennial Problem With ‘in Common Use’.

In his majority opinion in Heller, the late Justice Antonin Scalia encoded a concept of “in common use.” Basically, guns that are “in common use” for any lawful purpose cannot be banned or restricted to such a point that they’re unusable for those lawful purposes. Self-defense is the most cited lawful use, and some judges seem to think that’s the only one, but it’s not. It’s any lawful use.

And, to be fair, in the here and now, the phrase “in common use” is a useful shield.

However, there’s a perennial problem with the phrase, and that’s because the world of technology isn’t static.

I’ve repeatedly noted that I’m a science fiction nerd. While I also hold tradition important and think things of the past should be preserved, I also think that the world marches ever forward and that’s a very good thing. People tend to focus on communication or transportation as big advances coming down the line, but firearm technology will also continue onward. That includes some things that are, mostly, science fiction now but won’t be forever.

For example, I’m fascinated by rail guns. The idea of firing a projectile at ridiculous speeds using electromagnets is awesome, and the test firing of the Navy’s examples shows a round going so fast it ignited the air around it. While Uncle Sam seems to have abandoned its rail gun project, at least for now, hobbyists are still piddling with them.

Sooner or later, someone is going to come up with something, even if it’s not a rail gun, that will take weapons technology in an exciting new direction. It’ll probably be expensive to start with, and primarily for the military, but consumers will want their own versions, too.

The problem? Because it’s a new technology, it’s not in common use anywhere. It’s too new, too expensive, and too rare for many people to have one, and that’s the problem.

The weapons not “in common use” are, at least theoretically, free to be restricted as “dangerous and unusual” weapons. In fact, because they’re weapons, they’re going to be dangerous, and because the technology is fresh onto the market, they’ll be unusual.

Anti-gun lawmakers will leap onto this little fact and start passing laws banning this new technology. Don’t want to believe me? Well, look at “ghost guns.”

People were building their own firearms for years before anyone ever uttered a word about them. Most criminals got their guns via the black market, theft, or straw buys. The idea of making guns was too much work for them.

But the moment that a lawmaker decided it was a problem, the push to ban them started. 3D printing just sped up the push because now, people were making them, selling them, and using them. Numerous states started banning them…but between 2017 and 2023, despite tens of thousands of homicides by firearm, so-called ghost guns accounted for just 1,700. That’s an average of around 242 per year. It wasn’t a problem, but it was scary, so lawmakers demanded legislation.

Now, let’s think about something new, like, say, personal rail guns or something else that represents a significant leap in firearm technology. Because they’re new but scary, do you think the anti-gunners won’t try to make a thing about them? They’ll blast the airwaves about how these rail guns are too dangerous for civilian hands, and because they’re too new to be “in common use,” they might actually survive legal challenges that they shouldn’t survive.

That’s the problem.

Our Founding Fathers didn’t say anything about “in common use” because, in their minds, that wasn’t the basis for which rights are governed. It wasn’t about how many people had some new bit of technology; if that technology pertained to one of the rights enumerated in and protected by the Bill of Rights, then it shouldn’t be touched.

So yes, “in common use” represents a very real problem, and one that I hope the Supreme Court addresses very soon. I’d hate to see a force of tyranny somewhere down the road have firepower, particularly on an individual soldier basis, that the citizenry cannot match.

Well, he’s 98 – 99% ‘there’.

The AR-15 and the Second Amendment

By David Deming

There is late news from the US Supreme Court. Last June 30, the Court granted certiorari in Viramontes v. Cook County and Grant v. Higgins, consolidating challenges to gun bans in Connecticut and Cook County, Illinois. After years of frustration and denials, the Supreme Court has finally agreed to review and decide if state and local bans on semi-automatic rifles, such as the AR-15, are constitutional.

Many of us can remember a time when the federal courts altogether ignored the Second Amendment and would not concede that it guaranteed any individual right whatsoever. That changed in District of Columbia v. Heller (2008), when the Supreme Court unambiguously concluded that there is an individual right to “keep and bear arms,” and that this right is not established but protected by the Second Amendment. Subsequent cases have clarified and strengthened Second Amendment case law. In McDonald v. City of Chicago (2010), the Court held that the Second Amendment restrains not only the federal government, but also state and local governments.

In Caetano v. Massachusetts (2016), the Court declared that the Second Amendment refers to all modern arms (including stun guns), not just weapons in existence in 1791 when the Bill of Rights was ratified. In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court ruled that under the Second Amendment there is a right to carry a handgun in public for self-defense. In Bruen, the Supreme Court also did away with interest-balancing tests and established a history and tradition standard for evaluation of Second Amendment claims.

Under Bruen, any restriction on gun rights must be consistent with our nation’s historical tradition of firearm regulation. Because the US has almost no history of firearm regulation prior to the National Firearms Act of 1934, the unavoidable implication is that almost all gun control laws will eventually be found to be unconstitutional.

Unfortunately, inferior courts, including US District and Appeals Courts, have largely failed to follow Supreme Court guidance or precedent. In Bianchi v. Brown (2024), the Fourth Circuit Court of Appeals upheld Maryland’s ban on AR-15s and other semi-automatic rifles on the grounds that “they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” In Bevis v. Naperville (2023), the Seventh Circuit Court of Appeals concluded that “assault weapons and high-capacity magazines” are not protected by the Second Amendment because they “are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense.”

This is utter nonsense. There is no objective definition of what is meant by “military style,” nor is the semi-automatic AR-15 even in use by any military force anywhere in the world. Armed forces use select-fire weapons capable of fully automatic operation. If this sort of reasoning had been applied during the late eighteenth century, citizens would not have been able to own either muskets or rifles and unable to fulfill their obligation of militia service. Furthermore, the Second Amendment is not limited to arms useful for “self-defense.” Indeed, a plausible reading of the militia clause implies that only military weapons are protected! And there are several circumstances in which the AR-15 and other semi-automatic rifles are ideally suited for self-defense. In 2017, a homeowner in Broken Arrow, Oklahoma, used an AR-15 to decisively stop three home invaders. The shooting was ruled a justifiable act of self-defense.

The fact that arms bans remain in effect in several states and municipalities tells us that the Supreme Court has yet to provide clear and unambiguous guidance on specifically what types of weapons fall under the umbrella of the Second Amendment. In Heller the court ruled that the Second Amendment protects weapons that are “in common use,” for lawful purposes, while precluding “dangerous and unusual weapons.” From this, inferior courts, as described above, have concocted the fiction that only weapons in common use for self-defense are protected, not those suitable for sporting activities or militia service. But Heller never concluded that the only weapons protected by the Second Amendment were those useful for self-defense.

In Caetano, Justice Alito emphasized that the phrase “dangerous and unusual” from the text of Heller is a conjunctive test. For an arms ban to be constitutional, a weapon must be both “dangerous” and “unusual,” not just “dangerous.” It should therefore be beyond cavil that any ban on AR-15s is unconstitutional. Not only are they in common use, the AR-15 is the single most popular centerfire rifle sold and possessed in the US. Approximately 20-30 million AR-15s are in civilian hands.

And what are we to make of the term “dangerous” in Heller’s proscription? All guns are obviously dangerous. Kitchen knives are dangerous. Common objects and tools of all types can be dangerous. Baseball bats (which we provide to small children without hesitation) and hammers can be used to murder. So can bricks, sticks, stones, and hands and feet. FBI Uniform Crime Report statistics indicate that every year more murders are committed by means of “hands, fists, and feet,” than rifles of all types, including AR-15s. For the term “dangerous” to have intelligible validity there must be context. “Dangerous” can only mean the danger inherent in a weapon of mass destruction such as a nuclear bomb or poison gas, not an ordinary firearm.

Sometimes I read the comment on social media that all gun laws are unconstitutional under the Second Amendment. I disagree. Anyone who makes this assertion has not considered the consequences. If all gun laws are unconstitutional, the concomitant but absurd implication is that prisoners in jail will be allowed to have weapons. Even from the founding era of the US, it has been common practice to disarm violent felons and people with severe mental illnesses.

In these exceptional instances a person must be afforded due process of law before losing their rights. And I do not believe that the Second Amendment covers weapons of mass destruction that really are “dangerous” and would ordinarily never be owned by an individual. I have no problem with ordinary people possessing machine guns, mortars, hand grenades, or any small arm routinely issued to an infantryman, but individuals should not be in possession of nuclear weapons.

Eventually I do believe that the Supreme Court will rule the National Firearms Act of 1934 to be unconstitutional, and we will have the right again to own machine guns, as we did prior to 1986. The Supreme Court is not there yet, but overturning bans on AR-15s in common use is an important step on the path.

David Deming is a geophysicist and professor of arts and sciences at the University of Oklahoma.

New Supreme Court Rulings Strengthen TJ Roberts’ Challenge to the NFA

A federal challenge involving longtime Texas Gun Rights ally TJ Roberts has gained new legal support from three recent U.S. Supreme Court decisions.

Texas Gun Rights previously reported that Roberts v. ATF is one of several lawsuits challenging the federal government’s continued registration of suppressors and short-barreled firearms after Congress reduced the related National Firearms Act taxes to zero.

The latest development is not a new lawsuit or a repetition of the original challenge. Instead, attorneys in Roberts v. ATF, Brown v. ATF, and Jensen v. ATF have filed supplemental notices explaining how three Supreme Court rulings issued in June strengthen their existing constitutional arguments.

Those decisions may make it considerably harder for the federal government to defend the registration system Congress left behind.

Continue reading “”

Trump Dropped the Election Receipts, the Court Opened the Door, and the Fraud Machine Started Screaming

President Donald Trump released disturbing information Thursday night on just how badly America’s election system is compromised by foreign enemies and domestic traitors.

Trump described mass Chinese theft of U.S. voter data; voting machines vulnerable to China, Iran, North Korea, and Russia; American media taking foreign bribes; Deep State actors hiding evidence of voter fraud; and networks to manufacture fake ballots. The Chinese Commies were even involved in a scheme to boost Joe Biden’s votes, and the Obama administration tried to burn evidence of fraud. Of course, Trump’s explosive speech made waves.

The Republican National Committee is all geared up to help the president address the problem of voter fraud ahead of the midterm elections. “Americans deserve elections we can trust,” RNC Chairman Joe Gruters said. “The greatest nation on earth should never tolerate broken systems that leave our elections vulnerable to foreign interference and undermine voter confidence. That’s why the RNC is working in lockstep with President Trump to protect the ballot box through the largest election integrity operation in our party’s history. Now more than ever, Congress must pass the SAVE America Act.”

Trump-endorsed Minnesota gubernatorial candidate and election integrity warrior Mike Lindell enthused, “Everything we said is true! We have to get rid of the electronic voting machines ! Help save our country.” Investigative journalist Catherine Herridge emphasized the huge implications of the information. “CCP [Commie China] used all elements of government power, trade, diplomacy, social media, open source reporting to undermine his re-election. President Trump called it ‘the largest compromise of election data in history,’ resulting in China’s acquisition of 200 million US voter files,” she posted. “CCP could use this data for multiple purposes: voter fraud, identity theft and to target Americans for recruitment.”

Some conservatives rushed to the White House website to dig into the newly unclassified documents the Trump administration published.

Naturally, mainstream media outlets rushed to cover their sorry backsides after covering for election fraud for years.

Read more

The Washington, D.C. Circuit Court of Appeals has ruled that the United States Postal Service can move ahead — for now — with a rule change with major implications for mail-in ballot reform and state compliance with federal review.

The court granted the motion for stay in the case of the NAACP v. USPS, based on the strength of the appellants’ arguments. In other words, the court agreed that USPS is likely to win its case based on the Constitution and on the timeframe which the Postal Service has to implement a framework for ballots ahead of the midterm elections.

Bill Essayli, first assistant U.S. attorney for the central district of California, posted, “This ruling is a win for election integrity and would have significant implications for states like California that refuse to submit their voter rolls to verify compliance with federal election laws.”

The decision came July 17, the day after President Donald Trump revealed disturbing evidence of mass election fraud in the United States, both from domestic actors and foreign governments. One of the areas where Trump emphasized that our election system is extremely vulnerable to manipulation is through mail-in ballots.

All the USPS is attempting to do is to demand from states certain data and certain envelopes related to mail-in ballots in order to ensure a more secure chain of custody and fewer opportunities for falsified ballots. The NAACP is screeching and wailing about it, but all it is doing is displaying its own determination to facilitate fraud. The only reason one would be horrified at a requirement for submission of voter lists and serialized ballot barcodes is if one knows there is some hanky-panky ongoing, and wants to ensure it continues.

The exact quote from the circuit court decision is below:

Read more

Breaking: Third Circuit Says Ban on ‘Assault Weapons’ and ‘Large Capacity’ Magazines Is Unconstitutional

In a long-awaited opinion, the Third Circuit Court of Appeals has released its en banc decision in a trio of cases challenging New Jersey’s ban on so-called assault weapons and large capacity magazines, holding that the ban violates the Second Amendment’s protections for the right to keep and bear arms.

Besides the majority opinion, there are five opinions concurring either in whole or in part, along with three dissenting opinions, so Second Amendment attorneys and amateur law nerds like myself will have a lot of reading to do this weekend. Here’s the most important part of the majority opinion as an appetizer.

Applying the framework announced in New York State Rifle & Pistol Association v. Bruen, we agree with the District Court that New Jersey’s ban on Colt AR-15s violates the Second Amendment. However, because the record supports the same result for all semi-automatic rifles—not only Colt AR-15s—we will MODIFY the District Court’s order so that it deems the Assault Firearm Provisions unconstitutional with respect to the full class of semi-automatic rifles. We will AFFIRM that part of the order as modified.

The LCM Provisions also violate the Second Amendment, so we will REVERSE the District Court’s order with respect to those. Because the LCM Provisions violate the Second Amendment, we need not address the Takings Clause challenge.

While other circuit courts have upheld “assault weapon” bans by claiming they’re “dangerous and unusual” (or “unusually dangerous”), are not commonly-used for self-defense, and so close to machine guns that they’re not even protected by the Second Amendment, the Third Circuit rejected each and every one of those claims.

Continue reading “”

Government Throws in Towel on Defending Post Office Gun Ban

The U.S. Justice Department this week signaled it would no longer defend against a challenge to the federal ban on firearm possession, storage, and carry at U.S. Post Offices.

The government filed a motion with the U.S. Fifth Circuit in New Orleans to voluntarily dismiss its appeal of FPC v. Blanche, a gun rights group’s victory against the post office gun ban. A lower court in Oct. 2025 found the ban unconstitutional, citing that the first mail service in America was established in 1639, but the USPS waited until 1972 to specifically prohibit firearms on postal property.

Until this week, the government was still doggedly standing by the ban on appeal.

“The Trump DOJ spent far too long defending an immoral and unconstitutional ban that treated peaceable Americans like criminals,” said FPC President Brandon Combs in a statement. “Now, after losing on the merits and failing to gut the relief protecting our members, the government is finally waving the white flag. Good.”

For now, the victory in FPC v. Blanche protects members of the FPC and the Second Amendment Foundation, pending further challenges, rulings, and possible repeal of the ban by the USPS.

MOTION FOR SUMMARY JUDGMENT FILED IN CASE CHALLENGING UNLAWFUL SEARCH

BELLEVUE, Wash. — July 16, 2026 — The Second Amendment Foundation (SAF) has filed a motion for summary judgment in a case challenging the unconstitutional search of an 18-year-old high school senior’s vehicle that was based solely on the knowledge that he is a legal gun owner.

The case, Harrington v. Crawford, stems from an unlawful search of Hillsboro-Deering High School student Jack Harrington’s vehicle while it was parked on school grounds. Based only on an overheard conversation that Harrington lawfully owned a firearm, he was subjected to aggressive interrogation which culminated in his vehicle being searched without consent. No firearm was found during the illegal search as it was safely stored at his home, nowhere near the school campus.

“Entirely lawful and constitutionally protected conduct cannot be the grounds for a search,” said SAF Senior Director of Legal Operations Bill Sack. “School officials, especially when accompanied by law enforcement as was the case here, need at minimum reasonable suspicion to search a student’s vehicle. Here, those officials learning that our client was a gun owner gave them that suspicion. They are mistaken. If that were the case, student gun owners all over the country could be subject to repeated and endless harassment.”

As noted in the motion, “Defendants relied upon a week-old, stale report of a single comment made by Jack and overheard by an assistant coach…relating to Jack’s storage of his handgun in the glove box of his truck while at a gas station nowhere near campus – indisputably legal and constitutionally protected conduct. At no point during the interrogation, the search, or at any time since, have defendants brought forth a single shred of evidence of unlawful conduct by Jack. Moreover, defendants confirmed that they did not view Jack as a threat to school safety; they did not believe Jack had a weapon on his person during the interrogation; and Jack had no previous disciplinary issues.”

“District officials – and even a school resource officer who should know better – took it upon themselves to violate the constitutional rights of a peaceable, adult, firearm owner for no other reason than they learned of his status as a gun owner,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This young man was interrogated and coerced into allowing school officials to search his vehicle because he chooses to exercise his rights as a private citizen. Law enforcement and school officials are required to understand the law and to follow it, and in this case, it appears they failed at both.”

No Tax, No Excuse: NFA Suppressor and SBR Registry Gun Rights Next Target

New filings argue that three Supreme Court decisions have stripped away the government’s excuses for maintaining a zero-tax federal gun registry. The tax is gone. The registry remains.

The Second Amendment Foundation (SAF) and its partners have opened a coordinated, three-court attack on the National Firearms Act registration requirements for suppressors and short-barreled firearms. Supplemental filings in Brown v. ATF, Jensen v ATF, and Roberts v. ATF argue that three recent Supreme Court decisions leave the federal government with neither a valid taxing-power excuse nor an easy escape from the Second Amendment.

The Jensen filing is part of the consolidated Silencer Shop Foundation v. ATF litigation in Texas, where Silencer Shop Foundation and allied plaintiffs are pursuing a parallel challenge to the NFA registry.

Congress Zeroed the NFA Tax but Kept the Registry

Congress reduced the NFA making and transfer tax on suppressors, short-barreled rifles, short-barreled shotguns, and “any other weapons” to zero in the One Big Beautiful Bill. Washington, however, kept the paperwork, fingerprints, registration, prior approval, and felony penalties.

That creates the question now confronting federal courts: If the registry existed to collect a tax, what constitutional authority supports it when Congress no longer collects that tax?

SAF says the Supreme Court’s decision in Landor v. Louisiana Department of Corrections & Public Safety reinforces the answer: none. Congress cannot stretch the Necessary and Proper Clause into an independent police power, then impose a burdensome registration scheme on Americans who owe no tax.

The Jensen filing puts the point bluntly. Maintaining registration on untaxed citizens, plaintiffs argue, would permit Congress “to regulate in minute detail the activities of untaxed Americans.”

That should concern every gun owner. A federal agency should not be able to preserve a national weapons database merely because the database once accompanied a tax.

Supreme Court Rulings Strengthen the Second Amendment Challenge

The Second Amendment attack may be even more consequential. SAF argues that Wolford v. Lopez and United States v. Hemani require courts to apply the Supreme Court’s text-and-history test instead of inventing special exemptions for NFA regulations.

According to the filing, a suppressed firearm is a form of an arm, while a short-barreled rifle is “indisputably” a form of an arm. Once protected conduct is implicated, the government bears the burden of proving that its restriction is consistent with America’s historical tradition of firearm regulation.

The filing also takes direct aim at the Fifth Circuit’s decision in United States v. Peterson, which treated NFA registration as comparable to a presumptively lawful shall-issue licensing system. The plaintiffs contend that Wolford “leaves no room for a carveout” from the required Second Amendment analysis and therefore abrogates Peterson on that point.

That licensing comparison was always strained. Licensing evaluates whether a person is legally disqualified. Registration creates a government record of particular weapons and their owners. As the Jensen filing explains, “Registration, by contrast, focuses on tracking firearms and who owns them.”

Three NFA Lawsuits Target the ATF Registry

In a press release, SAF Senior Director of Legal Operations Bill Sack said: “When the Supreme Court rightly ruled in favor of Landor, Wolford, and Hemani, the precedent set had a direct impact on SAF’s ongoing NFA challenges.

With those rulings in hand, we are now able to better explain to the courts exactly why the remaining registration scheme left in the NFA lacks constitutional authority and is a direct violation of Americans’ Second Amendment rights. We are hopeful these cases will move expeditiously and rightfully restore the full constitutional rights of gun owners across the nation.”

“There is no doubt the Supreme Court’s rulings this past term have direct bearing on our current challenges to the NFA’s remaining registration scheme,” said SAF founder and Executive Vice President Alan M. Gottlieb.

“The relevant district courts should recognize the rulings for what they are – binding precedent that bolsters SAF’s arguments in these three cases.

The One Big Beautiful Bill eliminated the tax for suppressors and short-barreled firearms, and it’s now time to remove the registration burden so citizens can exercise their right to keep and bear arms without fear of being placed on some government list.”

The burden is now where Bruen put it: on the government. ATF must identify a historical analogue, not wave at modern licensing practices and demand judicial deference. The government now faces a problem it cannot solve with slogans about licensing or administrative convenience.

No tax means no taxing-power excuse. Protected arms mean the Second Amendment applies. And a government list of firearms and their owners is exactly what it looks like: registration.

Supreme Court Ducks the 1791 vs. 1868 Second Amendment Fight—Again

“The United States Supreme Court has now refused again to decide this big fight between when you interpret the Second Amendment, whether it’s the year of our Lord 1791 when it was written, or is it 1868 after the Civil War, with the adoption of the 14th Amendment,” constitutional attorney and host of The Four Boxes Diner Mark W. Smith informed his followers Monday. “After the Civil War, there were three constitutional amendments that were adopted to basically expand the Bill of Rights … to all Americans, not just as applied against the federal government, preventing the federal government from stopping you from exercising these rights, but also making sure that states and local governments could no longer impact or infringe on your rights as well.”

The technical holdup is essentially one of emphasizing due process and ignoring privileges and immunities, which to a layperson seems a bit like arguing how many angels can dance on the head of a pin. Legal precedents aside, there’s a more basic argument: The Constitution and Bill of Rights were ratified based on the understanding of the people and their representatives with debates based on arguments posited in the Federalist and Anti-Federalist essays. There has never been a magic crystal ball that allows decisions to be based on what will happen in the future.

And while it’s inarguable that the Fourteenth Amendment mandates “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” another basic question needs to be explored:

Would the Framers have thought it necessary?

“The Founders Intended for the Bill of Rights to Apply to the States,” Second Amendment writer Brian Puckett concluded back in 2001. “[I]f we set aside any Supreme Court decisions relating to that matter, we are left with the writings of the Founders and – most important of all – the actual legal document they produced, the Constitution and its first ten Articles of Amendment.”

“Who is this guy and what are his legal qualifications to make such an assertion?” seems a legitimate question only if one ignores the arguments he makes and the questions he raises, which then makes such a challenge ad hominem, that is, a logical fallacy. What has to be refuted and dismissed are his assertions, not the man, and he offers some that naysayers need to refute, if they can.

Proof of this understanding is contained in a passage from William Rawle. In his book View of the Constitution, published in 1829, Rawle wrote about the Second Amendment: “No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.” [emphasis added].

In other words, Rawle says that the Second Amendment may be used as a legal argument to quash an attempt by either Congress or a state legislature to disarm the people.

It cannot be any clearer that Rawle – a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General – understood that the Second Amendment (and by extension the entire Bill of Rights) applied to the state governments as well as to the federal government. Keep in mind that View of the Constitution was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860.

Rawle’s was not the only voice.

“The man most involved in writing the Constitution, James Madison  [argued] for adding a national bill of rights by pointing out that some states have insufficient bills of rights,” Puckett added. “The logical implication is that this national bill of rights will correct the problem of states that have insufficient bills of rights. Therefore, he is acknowledging that the national bill of rights will apply to the states.”

There’s another historical/legal example – from the Supreme Court — that predates the Fourteenth Amendment that must also be considered, and that was in the Dredd Scott decision, which noted:

 “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished;

and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” [Emphasis added]

Stipulating that I’m not a lawyer versed in the intricacies of case law, just a citizen who somewhat knows how to read, I’ve seen those who are qualified admit stare decisis über alles may not be what the Founders intended, particularly when it comes to the Bill of Rights. So don’t take this as a critique of  admittedly more formally educated Second Amendment scholars. I’m not trying to start a fight.

Consider it instead a hope that they’ll add the Rawle, Madison, and Scott examples to the arguments they’ll want the High Court to consider – or cogently explain to the rest of us why they’re irrelevant in determining Founding intent.

BLUF
Nearly two decades after recognizing a constitutional right to arms, the Supreme Court is beginning to address lingering questions about its contours. Control-happy politicians probably will not like the answers.

Supreme Court Begins Answering Lingering Questions About Constitutional Constraints on Gun Control

After upholding the Second Amendment rights of drug users and carry permit holders, the justices will address the constitutionality of “assault weapon” bans.

Over the course of 12 days last month, the Supreme Court upheld the gun rights of cannabis consumers, rejected Hawaii’s default rule against firearms on private property open to the public, and agreed to address the constitutionality of “assault weapon” bans. That flurry of Second Amendment activity underlines the point that supposedly sensible gun regulations are not necessarily consistent with the right to arms as it was historically understood.

When Congress enacted the Gun Control Act in 1968, legislators took it for granted that an “unlawful user” of marijuana, depressants, stimulants, or narcotics should not be allowed to own a gun. They reaffirmed that judgment in 1986, changing the wording to encompass unlawful users of “any controlled substance.”

Although the latter law was dubbed the Firearms Owners’ Protection Act, it obviously did not protect gun owners with a taste for politically disfavored intoxicants, or even gun owners who dared to use medications prescribed for friends or relatives. It treated all those people as felons.

That policy, the Supreme Court unanimously ruled on June 18, is unconstitutional unless there is evidence that a particular drug user’s gun possession would pose a danger to himself or others. It rejected the Trump administration’s attempt to prosecute a Texas cannabis consumer who owned a pistol, saying the government may not strip people of their Second Amendment rights simply because they are marijuana users.

The justices reached that conclusion based on “this Nation’s historical tradition of firearm regulation”—the lodestar of the Court’s Second Amendment jurisprudence. Applying the same test a week later, six justices said Hawaii had violated the Second Amendment by making it illegal for carry-permit holders to bring guns into a private business without the owner’s explicit permission.

As Hawaii presented it, that presumptive gun ban merely aimed to protect preexisting property rights. But as Justice Samuel Alito noted in the majority opinion, Hawaii’s law “departs sharply from the standard common-law rule on access to private property held open to the public.”

Under that rule, “everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so,” Alito wrote. “By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner’s express authorization.”

That switch, Alito noted, imposed “severe restrictions on the daily activities” of residents with carry permits. Nor was that effect incidental, since Hawaii was attempting an end run around the Supreme Court’s 2022 decision recognizing a constitutional right to carry handguns in public for self-defense.

Five days after it overturned Hawaii’s law, the Court agreed to hear a pair of cases involving bans on widely owned rifles that politicians tendentiously describe as “assault weapons.” A dozen states, beginning with California in 1989, have enacted such laws, which hinge on arbitrarily prohibited features such as folding stocks, pistol grips, and barrel shrouds.

The rifles targeted by these laws are rarely used by criminals but commonly used by law-abiding Americans, who own more than 30 million of them. The latter point is constitutionally relevant because the Supreme Court has said the Second Amendment applies to “bearable arms” that are “in common use” for “lawful purposes like self-defense.”

The long-simmering question posed by these cases is whether the Second Amendment guarantees “the right to possess AR-15 platform and similar semiautomatic rifles.” If so, other restrictions on the arms Americans are allowed to buy, such as magazine limits and California’s handgun specifications, may be vulnerable to constitutional challenges.

The decided cases also have potentially broad implications. If drug use, by itself, does not justify disarming someone, what about a nonviolent felony conviction? And if Hawaii’s broad restriction on public gun possession was unconstitutional, the far-reaching, location-specific bans imposed by states such as California and New York likewise seem legally dubious.

Nearly two decades after recognizing a constitutional right to arms, the Supreme Court is beginning to address lingering questions about its contours. Control-happy politicians probably will not like the answers.

United States v. Rose: A Second Amendment Skeptic Embraces the Present-Danger Rule

“Judge Frank Easterbrook, a Reagan-appointed federal appeals judge, with a long record of ruling against the Second Amendment has just ruled favorably for 2A. By applying the Supreme Court’s present-physical danger rule to an individual facing a lifetime gun ban due to a long-ago mental illness, Judge Easterbrook has broadened the scope of 2A protections. This decision is proof that Second Amendment jurisprudence is taking hold even among its skeptics. United States v. Rose is the latest stop on the incremental march restoring the right to keep and bear arms to anyone who is not, right now, a genuine threat of physical violence to themselves or to others.” – Professor Mark W. Smith, Four Boxes Diner host

A prominent federal appeals judge with a long record of ruling against Second Amendment claims has reached a legal conclusion that the gun-rights community has waited years to hear.

In United States v. Rose, the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Judge Frank Easterbrook, held that the lifetime firearms disability in 18 U.S.C. § 922(g)(4) — which bars anyone ever committed to a mental institution — may be constitutionally invalid as applied to someone no longer mentally ill or physically dangerous. The court vacated the dismissal of the charges against Jonathan Rose and remanded for further fact-finding.

The Facts Behind United States v. Rose

In September 2009, Jonathan Rose was involuntarily committed to a mental hospital in Indiana; the record does not identify his diagnosis. He was released in January 2010 and was never recommitted. In 2022, Rose purchased several firearms from licensed dealers; other attempted purchases were denied after a database match flagged his 2009 commitment.

In 2023, a federal grand jury indicted Rose under § 922(g)(4) for possessing firearms after a mental-health commitment, and under § 922(a)(6) for lying on ATF Form 4473 by denying in writing the commitment ever occurred. The district court, applying Bruen’s “text first, historical-tradition second,” test dismissed the § 922(g)(4) count for lack of any evidence Rose is a present danger. The § 922(a)(6) counts survived; circuit precedent already treated a false statement to a dealer as compatible with the Second Amendment. The Biden DOJ then appealed on behalf of the federal government.

Continue reading “”

Lawsuit challenges Denver, state over gun & magazine bans.

DENVER–A Colorado gun rights groups and three Denver-area gun owners on Tuesday filed a federal lawsuit challenging Denver’s decades-old ban on so-called “assault weapons,” as well as Colorado’s statewide prohibition on standard-capacity ammunition magazines, arguing both laws violate the Second Amendment.

The suit was filed in U.S. District Court by the Colorado State Shooting Association (CSSA), the Firearms Policy Coalition (FPC), and individual plaintiffs Ray Elliott, Trevor Alley and Michael Vitco, all Denver residents.

CSSA is the Colorado state affiliate of the National Rifle Association (NRA).

At issue is Denver’s 1989 ordinance banning the sale, manufacture and possession of firearms the city labels “assault weapons,” and Colorado’s 2013 law banning magazines that hold more than 15 rounds. The complaint argues both laws are, in practice, magazine restrictions as Denver’s ordinance defines a banned “assault weapon” chiefly by whether it accepts a magazine over 15 rounds.

Continue reading “”

The Black Codes Are a Cautionary Tale, Not a Useful Precedent

It has not been a great few months for Neal Katyal. As Charlie Cooke has detailed, Katyal and Hawaii got trounced, and properly so, in Wolford v. Lopez, which sought to masquerade a state law by which the government criminalizes having a gun on any private property as merely private conduct, because it allows the property owner to explicitly permit guns to be carried. Nobody in the 6–3 majority was fooled.

The really contemptible thing in this case was Katyal trolling the Court’s consideration of history and tradition in gun regulation by arguing that Hawaii was just following in the path of Southern states that adopted strict “Black Codes” during Reconstruction that limited the right of freedmen to carry guns. As I explained after the argument in January, this is the worst possible use of history:

It was left to Justice Thomas to ask the obvious rejoinder: “If you’re going to cite the Louisiana black codes of 1865, don’t you also have to cite the subsequent adoption of the Fourteenth Amendment that was in part generated because of laws like that?”

Thomas is right. It’s not just that the Black Codes were later found to be unconstitutional; it’s that the people who wrote and ratified the 14th Amendment were specifically responding to those laws. . . .

The history of the Black Codes [should be read] not as proof of our history and tradition, but as proof of what defenders of that history and tradition were aiming to abolish by enacting the 14th Amendment.

. . . Reading the Black Codes into the 14th Amendment is like reading the law of slavery into the 13th Amendment or reading bans on black voting into the 15th. It has the whole point of the amendment precisely backward.

Alito dismissed Katyal’s troll with the scathing contempt it deserved, saying that it “cannot be taken seriously” given the actual history. But Justice Ketanji Brown Jackson was taken with the argument, and as has happened several times of late when Jackson decides to promote some nonsense about the methodology of the Court’s work, Justice Amy Coney Barrett felt compelled to respond.

Jackson — joined by Justice Sonia Sotomayor but, pointedly, not by Justice Elena Kagan  — leaped at the analogy to the Black Codes as a club to wield in her continuing campaign against the use of history and tradition in reading the Second Amendment. That’s why Katyal was offering her the argument — not because he seriously believed that anybody applying the Court’s existing tests in good faith would fall for this hackish fallacy, but so that the Court’s test itself could be attacked. That’s also why commentators such as Mark Joseph Stern like the argument: “Virtually all of the laws that SCOTUS credits as relevant to the Bruen analysis were written by racist white men . . . by and for heterosexual white males.” Here’s Jackson:

As I see it, there are two potential reasons to use—or exclude—the Black Codes in Bruen’s history-and-tradition test. First, it could be that the Black Codes regulated guns consistent with the Second Amendment but States chose to exercise their regulatory authority in a discriminatory fashion. . . . Under this framing, those gun regulations are not examples of an unconstitutional abridgment of the right to bear arms, but rather exemplify a violation of a different constitutional Amendment—the Fourteenth.

Alternatively, it could be that States did not have the constitutional authority under the Second Amendment to enact such regulations but did so anyway for discriminatory reasons. Under that framing, not only did the States violate the Constitution by acting on the basis of race; they also violated the right to bear arms. Only the second set of circumstances justifies removing these laws (and the experiences of those they targeted) from the body of evidence that determines the historical reach of the Second Amendment under Bruen.

Jackson writes this as if she is completely oblivious to both the cause-and-effect relationship between the Black Codes and the enactment of the 14th Amendment and the fact that states could violate the Second Amendment with impunity before 1868 because until then it only bound the federal government. (Of course, nearly all such states had their own state constitutional guarantees, but Jackson just blows past the distinction.)

Continue reading “”

Supreme Court Lets SAF 2A Victory Stand in Pennsylvania Case

By Dave Workman

Editor-in-Chief

The U.S. Supreme Court on Tuesday let stand a ruling by the U.S. Third Circuit Court of Appeals which found young adults ages 18-20 are members of “the people” protected by the Second Amendment, handing another victory to gun rights advocates in a case brought by the Second Amendment Foundation.

The high court declined to review a case known as Bivens v. SAF (formerly known as Lara v. Paris), in which the Third Circuit had twice ruled in SAF’s favor.

SAF founder and Executive Vice President Alan Gottlieb told TGM via telephone that this year’s court rulings, combined with Tuesday’s announcement that two SAF cases challenging bans on modern semiautomatic firearms in Connecticut and Cook County, Illinois have been granted certiorari translate to a winning year so far. Topping it off was the decision to let the Third Circuit ruling stand.

In a prepared statement, SAF Executive Director Adam Kraut observed, “While a cert grant on this case could have meant an opportunity for the Supreme Court to take our win in the Third Circuit and apply it nationally, we are still content that our victory in this case is now permanent and final. Adults under 21 enjoy all the same constitutional rights as their older adult counterparts, and the rights protected by Second Amendment are no different. This victory serves as a major stepping stone to striking down additional unconstitutional portions of Pennsylvania state law and those like it around the country.”

The original lawsuit dates back to October 2020, so it has been litigated for almost six years. This is not unusual for Second Amendment cases, which seem to cause many district courts to shift into low gear. Likewise, anti-gun-rights losers tend to file appeals on whatever grounds they can find, while occasionally asking for delays, which stretches out the calendar even more.

“The Third Circuit ruled not once, but twice, that 18-20-year-olds have the same rights as their peers older than 21,” noted Gottlieb. “Those over 18 in this country can buy property, join the military and get married just like those over 21-years-old. Why then should they be forced to wait to enjoy their Second Amendment rights? There is no reason – they are adults under the law and should therefore be afforded their full constitutional rights.”

Another way to look at it.

Cheer Up! The Birthright Citizenship Case Moves Us Toward Inevitable Victory.

Would I have loved Justice Barrett or Chief Justice Roberts to have defied their natural judicial conservatism—in the non-political sense—and embraced the new thinking today? Yeah, that would’ve been great, but it wasn’t in the cards. Instead, we got two votes that I frankly didn’t expect. And those two votes position us for victory. If one of those five majority justices goes away and President Donald Trump appoints the replacement, it’s very likely we will have a 6–3 majority that supports limiting the current idea of effectively unlimited birthright citizenship under the 14th Amendment.

Let me put it in sportsball terms. We didn’t score a touchdown today, but we moved the ball down the field and put ourselves in position for a field goal or maybe even a touchdown in the next couple of plays.

So don’t freak out, don’t cry, don’t scream and yell. There’s no reason to. This result was better than we had any right to expect at this juncture in the process of changing the way the 14th Amendment’s citizenship clause is viewed under the law. And this is why keeping the Senate in 2026 is more important than ever.

Cheer up. Don’t doom. We did better than we had any right to expect, and in the end we’re going to win.

Supreme Court upholds birthright citizenship, rejecting Trump’s proposed limits

WASHINGTON (AP) — A divided Supreme Court on Tuesday upheld a broad conception of birthright citizenship, rejecting President Donald Trump’s executive order declaring that children born to people who are in the United States illegally or temporarily are not American citizens.

By a 6-3 vote, the court struck down Trump’s order. A bare majority of five justices, in an opinion written by Chief Justice John Roberts, held that the long-settled understanding of the 14th Amendment, adopted after the Civil War, makes a citizen of anyone born in the country, with very limited exceptions,

“Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,’” Chief Justice John Roberts wrote for the court, citing congressional debate over the amendment, “We keep that promise today.”

A sixth justice, Brett Kavanaugh, disagreed about the constitutional ruling, but pointed to a federal law that he said broadly conveys birthright citizenship.

Supreme Court takes up challenges to AR-15 bans

Washington — The Supreme Court on Tuesday said it will consider whether the Second Amendment guarantees the right to have AR-15-style rifles.

In a brief order, the high court agreed to take up a pair of cases challenging local and state laws outlawing AR-15s and similar semi-automatic rifles. One involves an ordinance in Cook County, Illinois, and the other centers on Connecticut’s law.

The justices will hear arguments in the cases in its next term, which begins in October.

The cases are the first in which the high court will weigh the legality of laws restricting access to certain types of firearms. In a landmark 2022 decision, the Supreme Court recognized for the first time that the Second Amendment guarantees the right to carry a gun in public for self defense. But the justices had — until now — declined to take up challenges involving bans on AR-15s and similar semiautomatic rifles in Illinois and Maryland, leaving the laws in place.

Continue reading “”

Supreme Court’s Wolford Decision Could Blow A Hole In New Jersey’s AR-15 Ban Defense

The Supreme Court’s decision in Wolford v. Lopez was about Hawaii’s attempt to turn most private property open to the public into gun-free zones by default. But the ruling may have just handed gun owners in New Jersey a powerful new weapon in the fight against the state’s ban on so-called “assault firearms.”

On June 26, attorneys for the Cheeseman plaintiffs in Association of New Jersey Rifle and Pistol Clubs v. Attorney General notified the Third Circuit that Wolford directly affects the pending challenge to New Jersey’s semiautomatic firearm ban.

Their point is simple: New Jersey cannot force gun owners to prove at the starting line that banned firearms are “in common use” before the Second Amendment even applies. Under Wolford, the first question is much more basic.

Does the law regulate “Arms”? If yes, the Constitution is already in play.

 

Wolford Reaffirms The Plain Text Test

Justice Samuel Alito, writing for the Court in Wolford, explained that Bruen’s first step asks whether the law falls within the Second Amendment’s plain text. That includes whether the law concerns “Arms,” meaning weapons “customarily used for offensive or defensive purposes,” according to the Court.

Phrasing matters. The Second Amendment does not protect only whatever gun a state lawyer is willing to admit is useful for home defense. It does not protect only handguns. It does not protect only muskets. It protects “Arms.” And Wolford confirms that the category includes weapons customarily used for offensive or defensive purposes. That is a problem for New Jersey.

That matters in Cheeseman because New Jersey’s ban plainly regulates firearms. Not accessories. Not conduct divorced from arms. Firearms.

The Cheeseman letter seizes on that language, telling the Third Circuit that “the only predicate question” is whether the law concerns “Arms.” The plaintiffs argue that the answer is “beyond dispute,” meaning the Second Amendment presumptively protects possession of the banned firearms. From there, the burden shifts to New Jersey.

That is the part anti-gun states hate. They want gun owners trapped in a never-ending preliminary debate over whether AR-15s, modern semiautomatic rifles, and similar arms are common enough, useful enough, or favored enough by judges to count. Wolford makes that harder.

Continue reading “”