Pennsylvania Man Fined, but Spared Prison for Bringing Ammo to Turks and Caicos

The first American tourist to be sentenced for accidentally bringing ammunition to the Turks and Caicos Islands since a February ruling took effect that raised the penalty for the “crime” to a minimum of twelve years in prison was spared incarceration on Friday. Instead, Pennsylvanian Bryan Hagerich can leave the country once he pays a $6,700 fine.

Hagerich had faced a possible 12-year sentence, the country’s minimum for possessing guns or ammunition, under a strict law in place aimed at addressing rising crime and gang violence. However, the judge found exceptional circumstances and that the mandatory minimum of 12 years was unjust and disproportionate to the crime committed.

Hagerich has been stuck in the Turks and Caicos for more than 100 days; sharing a condo with several of the other tourists who are still awaiting trial and wondering when he’d get the chance to return home.

Hagerich had stray ammo from a previous hunting trip in one of the compartments of a large suitcase his family had loaded their belongings into for a family vacation.

“I never in a million years thought I’d be in Turks and Caicos for over 100 days for a simple mistake,” Hagerich said.

[Ryan] Watson had stray ammo, also left over from a hunting trip, in the lining of his carry-on bag. [Sharitta] Grier had stray bullets in the lining of her bag after she recently purchased a firearm for her own protection. She told Fox News Digital that her brother owns a store that she sometimes closes at night and wanted a firearm in case of an emergency.

The governors of Oklahoma, Virginia, and Pennsylvania wrote a letter to the Turks and Caicos governor asking for clemency on behalf of those detained, while a congressional delegation visited with officials in person earlier this week to lobby for their release. Senator Markwayne Mullin of Oklahoma was among the members of Congress who expressed frustration after the meeting, but that meeting may have more of an impact than he realized.

While Hagerich’s release is good news, there’s no guarantee that the other tourists trapped in the Turks and Caicos Islands will receive the same leniency. The Turks and Caicos Sun newspaper has been highly critical of the efforts to intervene in the cases, and I wouldn’t be surprised if today’s decision results in a bit of a backlash from locals.

Not to be overlooked in this burning and sensitive matter, was the April 23 press statement by the Attorney General which made it clear our system already tempered justice with for violations of this nature, in “exceptional circumstances”, but with a mandatory minimum prison sentence. The Court of Appeal upheld and strengthened this position by insisting the court had no jurisdiction to impose a non-custodial sentence.

This jurisdiction has also let it be known that the provisions of the Firearms Ordinance routinely apply to all, irrespective of status, origin and nationality.

We faithfully adhere to the Latin legal maxim “Fiat justitia ruat caelum”; Let justice prevail though the heavens may fall.”

In this case justice did prevail, at least to the extent that a simple mistake won’t result in more than a decade in prison. What justice would be served by sentencing Hagerich or any of the other defendants to 12 years or more behind bars when there’s no evidence that any of them intentionally took ammo to the “gun-free” islands? The ammo wasn’t even discovered until these tourists were about to leave the Turks and Caicos Islands, but instead of confiscating the ammo and putting them on the next plane out authorities have forced them to remain in the British protectorate until their cases are resolved.

Virginia resident Tyler Wenrich is scheduled to be sentenced next Tuesday, and I hope he too will be able to resolve his case with a hefty fine instead of being detained for more than a decade. Mistakes may have been made, but it would be an injustice to punish Wenrich with incarceration, especially now that his fellow detainee will soon be headed home.

 FPC, NRA File Briefs With Supreme Court Over Mexico Lawsuit

The case involving Mexico’s lawsuit against U.S. gun manufacturers and retailers for violence south of the border is beginning to see some action from pro-gun rights organizations.

On Wednesday, both the Firearms Policy Coalition (FPC) and the National Rifle Association (NRA) filed briefs with the U.S. Supreme Court seeking a review of lower court decisions regarding Mexico’s attempts to impose its gun-control preferences on Americans.

“Mexico’s frivolous lawsuit to impose its draconian disarmament policies is a bald attempt to wage war on peaceable Americans and our constitutionally protected rights,” FPC President Brandon Combs said in a release announcing filing of the brief. “As our brief makes clear, the Supreme Court should enforce the law, put an end to this radical anti-rights lawfare and protect the right to keep and bear arms.”

“Mexico’s attempt in this litigation to impose a foreign nation’s policy preferences on the American people through judicial fiat and exact a financial penalty that would cripple the American firearms ecosystem would be deeply troubling even if it stood alone,” the FPC brief stated. “It does not. To the contrary, this action is merely one of a phalanx of recent, abusive lawsuits brought by anti-Second-Amendment activists, organizations and governments.”

In the end, the brief requested that the Supreme Court grant a review and intervene in the important case to protect gunmakers and the Protection of Lawful Commerce in Arms Act (PLCAA). In an earlier ruling, the First Circuit Court of Appeals ruled that the PLCAA does not bar Mexico’s lawsuit.

“The situation has accordingly become dire, and the time for this Court’s intervention is now,” the brief stated. “In the four-and-a-half years since this Court declined to review the Connecticut Supreme Court’s decision in Soto, the chief development has been the contrivance of ever more devious and extreme methods of evading the Act Congress passed to save the firearms community from abusive litigation. If the Court allows the lower-court’s treatment of the PLCAA to ‘percolate for another four-and-a-half years, there may be nothing left of the firearms marketplace to save.”

In the NRA brief, the organization stated: “Mexico has extinguished its constitutional arms right and now seeks to extinguish America’s. To that end, Mexico aims to destroy the American firearms industry financially.”

“This case exemplifies why PLCAA was enacted,” the brief continued. “Mexico seeks billions of dollars in damages and the imposition of extensive gun controls in America while relying on shoddy data and false allegations to exaggerate the impact of Petitioners’ firearms on Mexican homicides.”

The lawsuit is named Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos


The 2A Case That SCOTUS Might Not be Able to Resist

Since Bruen was decided almost two years ago, the Supreme Court has turned away every gun control challenge presented by Second Amendment advocates. Sure, most of those cases were submitted before final judgment, and SCOTUS has accepted several cases brought by the DOJ, but there are a lot of gun owners who are understandably frustrated that the Court has been unwilling to step in and smack down post-Bruen carry restrictions, bans on commonly owned firearms, and other infringements that are having a daily impact on millions of Americans.

A cert petition just filed with the Supreme Court may prove to be irresistible to at least four of the justices, however. The case is known as Wilson v. Hawaii, but you might remember it as the case where the Hawaii Supreme Court invoked the “law of the paddle” to declare that Hawaii’s state constitution doesn’t protect an individual right to keep and bear arms despite the fact that its language contains the almost the exact same wording as the Second Amendment.

Christopher Wilson was convicted of the “crime” of carrying a firearm without a license back in 2017, when Hawaiian licensing authorities were routinely denying any and all concealed carry applications under the state’s “may issue” law. Wilson’s public defenders acknowledge he was bearing arms, but argue there was no chance at all for Wilson to receive a license, which is why he never applied for one.

Mr. Wilson did not have a license to carry his pistol. That year county police chiefs throughout Hawai’i issued licenses to carry to 225 employees at private security firms. Fourteen “private citizens” applied for a concealed carry license and the police chiefs in every county denied them all.

The fact that only fourteen residents in the entire state applied for a carry license that year is telling, especially given the surge in applications once the state’s “may issue’ regime was deemed unconstitutional. It was seen as a waste of time and money to apply for a concealed carry permit back then, but an untold number of residents may still have been carrying in the belief that their right of armed self-defense was worth the legal risk they were incurring.

A trial court actually sided with Wilson and dismissed the charges, but prosecutors appealed to the Hawaii Supreme Court, which reversed the lower court opinion and reinstated the charges against him. That was the decision crafted by Hawaii Supreme Court Justice Todd Eddins, who claimed that there is no individual right to keep and bear arms under Hawaii’s constitution. Instead, Eddins and the rest of the court maintained that any right that exists is one that can only be exercised collectively by a state militia.

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Anti-Gunners Channel Orwell to Defend Bump Stock Ban

With the Supreme Court’s decision in Garland v. Cargill looming, gun control activists are engaging in some Big Brother-esque torture of the English language to defend the ATF’s abuse of its regulatory authority.

The doubleplus ungood spin from groups like Brady and Giffords is being aided and abetted by gun control-friendly writers like The Hill‘s Clayoton Vickers, who contends that if the ATF’s rule is struck down by the Supreme Court it “could quickly open an unfettered marketplace of newer, more powerful rapid-fire devices.”

David Pucino, legal director at Giffords Law Center, said lower courts are currently treating bump stocks and similar devices like machine guns, which are banned.

“The use case for new rapid-fire devices lower courts are considering is that somebody wants to have a machine gun, and the law won’t let them have one,” Pucino said.

If the Supreme Court does overturn the ban, he said, it “would be very, very dangerous for public safety.”

Pucino’s comments are erroneous on several counts. First, not every lower courts are treating bump stocks like machine guns. If that were the case the Court might never have agreed to hear Garland v. Cargill. It’s the government that asked the Court to take the case, after all, and the DOJ filed that request because the Fifth and Sixth Circuits have both issued rulings that bump stocks do not turn firearms into machine guns.

Pucino is also off base when he claims that the argument boils down to “someone wants a machine gun but the law won’t let them have one.” Garland v. Cargill technically isn’t even a Second Amendment case. The question before the Court is whether “a bump stock device is a ‘machinegun’ as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires ‘automatically more than one shot … by a single function of the trigger.'”

It’s that phrase “single function of the trigger” where Pucino and other anti-gunners are trying to play games with the English language.

Gun control advocates argue that a debate over “single function” misses the point of bans on machine guns.

“The Justices are aware there’s a sort of forced nature to the other side’s argument,” Shira Feldman, director of constitutional litigation at Brady United Against Gun Violence, told The Hill.

Brady, a gun-control advocacy group, has also filed a brief in Cargill.

“Is it really reasonable that Congress would have written the law such that we have to read these statutes in a way that we wouldn’t normally parse language?” Feldman said.

It’s the gun control groups who are wanting to read these statutes in a way that defies common sense. In their view, a “single function of the trigger” is the same as “multiple functions of a trigger”, so long as any device attached to a firearm can help increase the rate of fire. Congress didn’t define “machine gun” by how many rounds could be sent downrange in a given period of time, which is essentially how the gun control groups want the statute in question to be interpreted. A bump stock doesn’t change anything at all about how a trigger functions, and it certainly doesn’t turn a semi-automatic rifle into a fully automatic machine gun.

There’s another flaw in the logic (and I use that term loosely) of the gun control groups. Like Vickers, they claim that allowing bump stocks to be sold will be “very, very dangerous for public safety.” But they also claim that the gun industry is already flouting federal law to sell any number of devices that turn AR-15s into machine guns.

According to Feldman and fellow legal experts at Brady, the gun industry has been “disingenuous” in calling rapid-fire accessories legal and has sold them as “get them before … [they’re] banned” products.

“We’ve seen the gun industry do everything they can do to skirt federal regulation to increase the lethality of the weapons that they can sell to civilians, whether it’s a hellfire [trigger], a bump stock or a host of other accessories,” said Christian Heyne, chief programs officer at Brady.

“The main reason you have these is to kill as many people in this short amount of time as you can. And to victims, it isn’t important exactly how the trigger mechanism works,” added Douglas Letter, Brady’s chief legal officer.

“The point is that what Congress was trying to do [when it passed machine gun bans] was make these unbelievably dangerous weapons not a part of our civilian society,” he said.

It’s not disingenuous to sell products that the ATF says are perfectly legal. What’s disingenuous is the agency reversing years of determinations to the contrary, while writing rules that are so ambiguous it’s impossible to know whether you’re in compliance or violating their edicts. It’s disingenuous to claim that the main reason someone wants a bump stock or a binary trigger is to “kill as many people as possible” given the fact that hundreds of thousands of bump stocks were lawfully purchased before the ATF banned them, but were rarely used in crimes of any kind.

Garland v. Cargill is a case about bump stocks, but it’s also inherently about agency power. Will the Supreme Court give the green light to ATF and other federal agencies to ignore the plain text of federal statutes and essentially write new laws out of existing regulations, or will it rein in the multiple administrative abuses that have taken place since the bump stock ban was imposed in 2017? I have no idea where the Court will come down, but with a decision expected before its summer recess in June, we don’t have too long to wait before we learn the answer.

CRPA Joins Amicus Brief in US v. Kittson

Today, California Rifle & Pistol Association, Second Amendment Foundation, and the Second Amendment Law Center took the somewhat unusual step of filing an amicus brief in a unique criminal case out of Oregon. US v. Kittson involves an individual charged with violating 18 U.S.C. § 922(o), which prohibits the possession or transfer of an unregistered fully-automatic firearm. The United States District Court for the District of Oregon upheld the ban despite Mr. Kittson’s Second Amendment arguments, and now he is appealing to the Ninth Circuit Court of Appeals. Read the full brief here.

The district court ruling caught our attention not so much because of the result (considering the confusion that courts have created on how to apply the Bruen test of constitutionality, it isn’t surprising that courts are not yet ready to overturn machine gun bans) but rather because of the district court’s refusal to properly apply Bruen’s methodology and historical tradition analysis. In the decision, which is just a few paragraphs, the same federal judge that upheld Oregon’s new magazine capacity law ruled that machine guns are not “arms” covered under the Second Amendment’s plain text, and that prior Ninth Circuit precedent is still good law even after BruenThe judge skipped the history and tradition analysis entirely.

Our amicus brief focuses on why and how the district court failed to apply Bruen correctly. First, we point out that machine guns are undoubtedly “arms” under the Second Amendment, so the historical tradition analysis must be conducted. Next, we discuss the proper contours of that historical analysis. We contend that the Ninth Circuit should order the district court to analyze whether history supports classifying machine guns within the historical tradition of regulating “dangerous and unusual” weapons. If they are not, they may not be banned. Finally, we argue that the Ninth Circuit should also inform the district court that an arm merely being used by the military, without more, is not sufficient reason to ban it. Even if the machine gun ban is ultimately upheld, like any Second Amendment question it deserves the benefit of a full historical tradition analysis first.

District courts should not be allowed to get away with ignoring what the Supreme Court’s Bruen decision demands.  The analytical legal process matters, and these abuses will continue to be copied in other cases if they are not corrected.

While our main focus is on the civil Second Amendment cases that we litigate on behalf of all law-abiding gun owners, last week’s excellent decision in US v. Duarte reminds us that a lot of Second Amendment case law and legal precedent will be made in criminal matters, where overworked public defenders can benefit from our expertise. So CRPA our allies will continue to monitor criminal matters for amicus brief opportunities.

As we’ve harped on time and again, the way in which the Bruen standard is used (or ignored) in cases all over the country has the potential to advance our cause or to erode gains already made.  This is a critical fight!

Appeals Court overturns gun conviction, questions legality of CPD traffic stop-and-search strategy

CHICAGO (WLS) — There’s strong reaction Friday to an ABC7 I-Team investigation of a controversial Chicago police tactic: vehicle searches during traffic stops, especially in minority communities.

Critics have labeled CPD traffic stops as the “new stop-and-frisk,” while law enforcement experts say the stops are vital in the fight against violent crime citywide.

Now, the ABC7 I-Team has learned in one of the rare cases where a gun was found during a traffic stop search, a man convicted for the crime could walk free from behind bars after the state Appeals Court overturned the conviction, and questioned whether the basis of the stop was unlawful.

While the Cook County State’s Attorney’s office plans to appeal that decision, as the I-Team first reported this week, State’s Attorney Kim Foxx has proposed a new plan to not charge gun crimes if the firearms were found during traffic stops for expired license plates, busted turn signals and other minor infractions.

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Federal Court Rules Maryland Parents Can’t Opt Kids Out Of Classes With LGBT Content.

The Fourth U.S. Circuit Court of Appeals has ruled 2-1 against Maryland parents who sued their local school board for not letting their children in grades K-5 opt out of reading books supporting transgender ideology and gender transitioning.

The Montgomery County Public Schools board denied the parents their request to be notified when the books would be read to their children and the opportunity to opt out.

“The Board is violating the parents’ inalienable and constitutionally protected right to control the religious upbringing of their children, especially on sensitive issues concerning family life and human sexuality,” The Becket Fund for Religious Liberty, litigated the lawsuit, stated, explaining:

In fall 2022, the Montgomery County Board of Education announced over 20 new “inclusivity” books for its pre-K through eighth grade classrooms. But rather than focusing on basic civility and kindness, these books champion pride parades, gender transitioning, and pronoun preferences for children.

For example, one book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “[drag] queen,” “underwear,” “leather,” and the name of a celebrated LGBTQ activist and sex worker. Another encourages fifth graders to discuss what it means to be “non-binary.” Other books advocate a child-knows-best approach to gender transitioning, telling students that a decision to transition doesn’t have to “make sense” and that doctors only “guess” when identifying a newborn’s sex anyway.

A district court ruled against the parents, prompting them to appeal to the 4th US Circuit Court of Appeals, which denied the parents’ request for a preliminary injunction but allowed the possibility of changing its position once the classes have already been taught, writing:

We take no view on whether the Parents will be able to present evidence sufficient to support any of their various theories once they have the opportunity to develop a record as to the circumstances surrounding the Board’s decision and how the challenged texts are actually being used in schools.

At this early stage, however, given the Parents’ broad claims, the very high burden required to obtain a preliminary injunction, and the scant record before us, we are constrained to affirm the district court’s order denying a preliminary injunction.

Judge Marvin Quattlebaum dissented, writing, “I disagree with the majority’s conclusion that the parents have not produced enough evidence to establish that their free exercised rights have been burdened. The parents have met their burden. They have produced the books that no one disputes will be used to instruct their K-5 children. They produced declarations explaining in detail why the books conflict with their religious beliefs. They have produced the board’s own internal documents that show how it suggests teachers respond to students and parents who question the contents of the books.”

A Big Week for SCOTUS and the Second Amendment

On Thursday, the Supreme Court is set to consider whether to accept challenges to “assault weapons” bans in Illinois and Maryland at this week’s conference. But that’s not the only 2A issue coming before the justices this week. A case called Srour v. NYC is also scheduled for consideration in conference this week. That lawsuit is taking on New York City’s “good moral character” standard for residents trying to exercise their right to keep a rifle or shotgun in their home; a statute found unconstitutional by a district court judge, but allowed to remain in effect thanks to an inexplicable decision by the Second Circuit Court of Appeals.

Attorney Amy Bellantoni first asked SCOTUS to intervene on behalf of her client back in March, but her request for an emergency application to vacate the Second Circuit’s stay was summarily rejected by Justice Sonia Sotomayor on April 4th. The following week, Bellantoni resubmitted her request to Justice Clarence Thomas. Instead of accepting or rejecting the request, Thomas has submitted the question to the full Court.

In her initial request, Bellantoni notes that the district court judge who found New York’s “good moral character” and “good cause to deny” clauses unconstitutional did so after the state failed to come up with a single historical analogue that could justify the broad and vague powers granted to the licensing authorities.

The district court went on to analogizing Respondents’ ‘moral character’requirement to the ‘proper cause’ factor for a concealed carry handgun license thatwas stricken by this Court in Bruen. Both statutes require individuals to “prove”something to a government official before being able to exercise a protected right.

Harkening to Bruen’s discussion contrasting outlier “may issue” regimes likeNew York’s, “under which authorities have discretion to deny concealed-carrylicenses even when the applicant satisfies the statutory criteria,” with “shall issue”regimes, “where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability,” the district court correctly observed that Respondents’ regulations “land very close to the problematic “may issue” laws criticized in Bruen.”

… The district court concluded that 10-303(a)(2) and (a)(9) “suffer from the verysame constitutional flaws under Bruen.” Observing that Section 10-303 fails to define “good moral character” in further detail, the court held that “without doubt, the very notions of “good moral character” and “good cause” are inherently exceedingly broad and discretionary. Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another. Such unfettered discretion is hard, if not impossible, to reconcile with Bruen.”

The district court then turned to whether Respondents met their burden under the Bruen test, but found they failed to produce any historical analogue for investing officials with the broad discretion to restrict an individual’s Second Amendment rights based on a lack of moral character.

Respondents offered examples of criminal laws, loyalty oath requirements, and surety statutes — laws preventing “dangerous or potentially dangerous” people from possessing firearms, which the district court found are “hardly analogous to denying someone their Second Amendment’s rights based on a City official’s discretionary determination that that person “lacks good moral character”…The latter is far broader and sweeps in significantly more conduct.”

When New York City officials appealed the judge’s order to the Second Circuit, they quickly got the relief they were asking. A three-judge panel stayed the lower court decision and allowed the NYPD to continue to use “good moral character” (or the lack thereof) as a reason to approve or deny permits, pointing to a similar preliminary ruling regarding pistol licenses that are being challenged as part of Antonyuk and other lawsuits taking on the state’s Concealed Carry Improvement Act. But Bellantoni argues that the Second Circuit provided no real analysis before reaching its decision. If it had, Bellantoni believes the panel would have had no real choice but to uphold the district court’s finding.

Had “due consideration” been given, the Second Circuit would have realized that Antonyuk (i) is not binding on the appeal, as it involved review of a preliminary injunction, not a merits-based determination; (ii) its ‘moral character’ analysis is confined to handgun licensing (plaintiffs challenged the “Concealed Carry Improvement Act”); (iii) New York State’s moral character statute for handguns is markedly narrower than NYC Admin.

Code 10-303(a)(2) (still, any amount of discretion conflicts with the plain text); and (iv) contains no analysis of this Nation’s historical traditions of regulating rifles and shotguns, which is decidedly sparse. To be sure, when it comes to long guns, even the New York State Legislature acknowledged in 1965 that there was no ‘National tradition’ of licensing rifles and shotguns, never mind disarming the entire citizenry until a government official feels they possess “good moral character.”

We have no way of knowing which, if any, of the Second Amendment cases that are pending in conference will be granted cert by the Supreme Court, but there’s a strong argument to be made in favor of accepting all three of the legal challenges that will be discussed behind closed doors this week.

The Srour case may be the most limited in terms of impact, given that NYC is an outlier when it comes to its gun licensing laws, but there are still millions of New York City residents who are being subjected to the arbitrary and capricious whims of the NYPD Licensing Bureau before they can exercise a fundamental civil right. All three cases are worthy of the Court’s attention, and the longer the justices delay in hearing them, the worse these deprivations of liberty become.

Judge Fast-Tracks Review of ATF’s Universal Background Check Rule Amid Legal Challenge by GOA, Texas

A federal judge has expedited the legal proceedings against a new rule by the ATF that mandates universal background checks on private firearm sales. U.S. District Court Judge Matthew J. Kacsmaryk’s decision on Friday sets the stage for a rapid review of the contentious rule, which has faced strong opposition from gun rights advocates and several states.

The rule, slated to be enforced starting May 20, 2024, would significantly expand the scope of background checks, requiring them even in private transactions that have traditionally been exempt. This includes sales by individuals not classified as being “engaged in the business” of selling firearms. According to reporting by Breitbart News, this change blurs the lines between private sellers and licensed dealers, potentially impacting millions of gun owners across the country who wish to buy or sell a firearm to or from a private seller.

Gun Owners of America (GOA), the Gun Owners Foundation and the State of Texas, along with other states (Louisiana, Mississippi and Utah) and advocacy groups (including the Tennessee Firearms Association and the Virginia Citizens Defense League), have filed a lawsuit arguing that the rule not only exceeds the regulatory powers of the ATF but also infringes on constitutional rights. The plaintiffs claim the rule would unfairly classify ordinary citizens who sell firearms as dealers, subjecting them to rigorous licensing and background checks.

Judge Kacsmaryk has ordered the ATF to respond to the motion for preliminary relief by 5 p.m. tomorrow, May 14, 2024, with the plaintiffs’ reply due by the following day by 5 p.m. as well.

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Tennessee Appeals Court Rules Against Wildlife Agents Who Planted Cameras on Private Land
The three-judge panel concluded unanimously that while the state law at issue is constitutional, the wildlife agents’ application of it was not.

In December 2022, Reason reported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners’ favor.

At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to “go upon any property, outside of buildings, posted or otherwise,” in order to “enforce all laws relating to wildlife.” In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring “No Trespassing” signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.

Under the “open-fields doctrine,” Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone’s property lacks the same rigorous Fourth Amendment protections as their home and the “curtilage,” the area immediately surrounding the home.

In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners’ favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an “intolerable risk” of abuse and was “facially unconstitutional,” but it stopped short of issuing an injunction. The state appealed the decision the following month.

In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. “It allows TWRA officers to enter and roam around private land, fishing for evidence of crime,” Windham said. “It doesn’t require consent. It doesn’t require warrants. It doesn’t require probable cause….It’s a blank check for officers to invade private land whenever and however they please.”

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Sometimes, you wonder if corrupt crap like this isn’t done on purpose, simply to test the opposition’s mental acuity.

Judge Aileen Cannon is a Heroine
She is scheduled on June 21st to hear oral argument on whether special counsel Jack Smith was unconstitutionally appointed

The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump’s trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.

Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump’s motion to dismiss Special Counsel Jack Smith’s indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.

The Appointment Clause of Article II, Section 2 provides that: “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.

We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney’s Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith’s appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers

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Supreme Court rules in favor of veteran who sued over GI Bill limits

The Supreme Court on Tuesday ruled in favor of a veteran who unsuccessfully tried to use both his Post-9/11 GI Bill and Montgomery GI Bill benefits, saying that Veterans Affairs officials erred in limiting his education support.

The 7-2 decision could have far-reaching impact on student veterans who use up their VA benefits but still wish to continue degree programs. Lawyers for the plaintiff have estimated as many as 1.7 million veterans nationwide could benefit from the ruling, but federal officials have estimated the number to be less than 30,000 individuals.

The case has been closely watched by veterans advocates for nearly nine years because of its potential ramifications. VA pays out more than $8 billion in education payments annually, and the Supreme Court ruling could boost that figure even higher.

The legal fight centered on Jim Rudisill, a 43-year-old Army veteran who was wounded in a roadside bomb attack in Iraq in 2005. Rudisill used all of his Post-9/11 GI Bill benefits shortly thereafter, but later wanted to tap into his unused Montgomery GI Bill benefits to attend Yale Divinity School as part of the process to become an Army chaplain.

When VA officials denied that move, Rudisill sued, claiming they were unfairly limiting his options. Writing for the majority, Justice Ketanji Brown Jackson called the government’s denial “nonsensical” and reversed lower court rulings supporting VA’s position.

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Ninth Circuit Panel Rules Non-Violent Felons Can Own Guns

Another federal appeals court has determined the Second Amendment protects the gun rights of at least some convicted felons.

On Thursday, a three-judge panel from the Ninth Circuit Court of Appeals sided with defendant Steven Duarte and vacated his conviction. They found the federal ban on felons possessing firearms was unconstitutional as applied to Duarte because his underlying convictions didn’t involve violent crimes.

“Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects,” Judge Carlos Bea wrote for a 2-1 court in US v. Duarte. “The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history.”

The ruling deepens the federal circuit split over the constitutionality of the law that bars anyone convicted of a crime punishable by more than two years in prison from ever owning or handling firearms again. Felon-in-possession charges are the most common federal gun prosecutions in the nation. Continued disagreement over the constitutionality of the law underlying those charges may motivate the Supreme Court to address the issue itself directly, especially the question of whether people who aren’t violent present enough of a dangerous threat to be worthy of a lifetime gun ban.

The history and tradition test the Court set in 2022’s New York State Rifle and Pistol Association v. Bruen has opened up new challenges to all kinds of gun laws, and the Court has yet to hand down another Second Amendment ruling, though the case its current considering is likely to delve into the dangerousness question.

The Department of Justice, which defended the federal law, did not respond to a request for comment. However, it already requested that the Supreme Court review Garland v. Range, the other case in which a federal appeals court found the gun ban unconstitutional as applied to non-violent felons.

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Anti-Gunners’ Lawsuit Against Smith & Wesson Dismissed

A lawsuit brought against Smith & Wesson by anti-gun shareholders within the company was dismissed Monday in Nevada’s Clark County District Court.

On December 5, 2023, Breitbart News noted that shareholders disgruntled over Smith & Wesson’s continued manufacture of AR-15 platform rifles had filed the lawsuit.

Plaintiffs in the case included the Adrian Dominican Sisters, Sisters of Bon Secours USA, Sisters of St. Francis of Philadelphia, and Sisters of the Holy Names of Jesus & Mary. Their suit claims that the defendants, who are Smith & Wesson board members and the company’s senior management team, “knowingly allowed the Company to become exposed to significant liability for intentionally violating federal, state, and local laws through its manufacturing, marketing, and sales of AR-15 style rifles and similar semiautomatic firearms.”

The plaintiffs acknowledged the lawsuit protection provided to firearm companies via the Protection of Lawful Commerce in Arms Act (PLCAA). However, they claimed Smith & Wesson had foregone such protections by continuing to manufacture AR-15s after a Smith & Wesson AR-15 was used in a mass shooting.

On March 13, 2024, Breitbart News reported that Nevada’s Clark County District Court signaled no “substantial likelihood” Smith & Wesson would be found liable, saying the activist shareholders appear not to be aligned with the company’s best interest and requiring them to post a half-million-dollar bond to continue their suit.

The plaintiffs were instructed to post the bond by April 23, 2024, but they did not.

On May 6, 2024, Judge Joe Hardy pointed to their failure to post the bond as ordered and dismissed the lawsuit against Smith & Wesson.

The suit is Adrian Dominican Sisters v. Smith & Wesson Brands, Inc., No. A-23-882774-B in the District Court of Clark County, Nevada.

Analysis: Judges Show Limited Appetite for Upending Background Check Regimes

Following the Supreme Court’s Bruen decision, Second Amendment jurisprudence is more unsettled than it has perhaps ever been. However, judges thus far appear skeptical of disrupting at least one realm of gun law: background check requirements.

Even in novel formats, background check requirements have largely escaped falling victim to the text, history, and tradition-based legal test so many other gun laws have been felled by in the courts. Most recently, the “enhanced” background check requirements for 18-20-year-old gun buyers in the 2022 Bipartisan Safer Communities Act were upheld as constitutional by the Fifth Circuit Court of Appeals.

“The [Second Amendment’s] plain text covers plaintiffs’ right ‘to keep and bear arms,’” Judge Jerry E. Smith, a Ronald Reagan appointee, wrote on behalf of a unanimous panel in McRorey v. Garland. “And on its face ‘keep and bear’ does not include purchase—let alone without background check. That is so in either the contemporary or the Founding-era context.”

As a result, there is now precedent in the country’s most conservative circuit blessing a background check scheme that effectively creates a ten day waiting period. And it’s difficult to see gun-rights challengers having better luck elsewhere.

In part, gun-rights litigants have a dicta problem. The language deployed by the Supreme Court to hedge its majority opinions in Heller and Bruen is repeatedly being used to uphold modern gun laws, even those that would seem to lack a historical analogue at first glance.

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Week in Review: Gun Owners Targeted

The wannabe gun-grabbers on the Pima County, Ariz., Board of Supervisors have been looking to pick a fight over the state’s firearm statutes.

They picked the wrong one. Now, the Goldwater Institute is suing the county on behalf of Air Force veteran Chris King over an illegal mandate that slaps $1,000 fines on residents who fail to report a lost or stolen firearm to the government within two days.

Arizona law prohibits cities, counties, and other local government entities from passing almost any type of firearm-related regulation. But public records obtained by the Institute reveal the board has been gearing up for this fight for years, coordinating with left-wing activist groups, attorneys, and other elected officials to undermine Arizona’s broad protections for the rights to keep and bear arms.

They’ve bitten off more than they can chew—and now, they’ll have to defend their illegal ordinance in state court.

“We’re a nation of laws,” Chris says. “Why do Pima County officials think they’re above the law?”

The Goldwater Institute will always defend constitutional rights and keep rogue government entities in check when they thumb their nose at the law.

Read more here.

If the prosecution lied about this, what else did they lie about?

Trump Whodunnit: Prosecutors admit key evidence in document case has been tampered with
Legal experts call revelation a “serious violation” as Jack Smith’s team admits it also misled court.

In a stunning admission, Special Counsel Jack Smith’s team is admitting that key evidence in former President Donald Trump’s classified documents criminal case was altered or manipulated since it was seized by the FBI, and that prosecutors misled the court about it for a period of time.

Legal experts told Just the News the revelation could prove to be a serious problem for prosecutors and a violation of court rules to preserve evidence in the state it was seized.

In a new filing Friday, Smith’s team said that the order of documents in some of the boxes of memos that were seized by the FBI from Trump’s Mar-a-Lago estate was altered or jumbled, leaving two different chronologies: one that was digitally scanned and another the physical order in the boxes.

“Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes,” Smith’s team wrote in a new court filing to U.S. District Judge Aileen Cannon.

“There are some boxes where the order of items within that box is not the same as in the associated scans,” the prosecutors wrote.

Smith’s team in a footnote also conceded it had misled the court about the problem by previously declaring that the evidence had remained in the exact state it had been seized.

“The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court,” the footnote said.

You can read the filing here:

The organization of the documents in storage boxes at Mar-a-Lago is likely to be an important part of Trump‘s defense. His team is expected to argue the documents were stored in the White House in chronological order on the days that Trump received them, and that staff simply boxed them up and sent them to his home without him accessing them or knowing they contained classified information.

Smith’s team tried to downplay the problem and argued it’s not a reason for a delay in Trump’s case.

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Ken Paxton Is Suing Biden Administration Over Ban On Private Firearms Sales

Another day, and another act of breaking the law by the Biden administration.

Texas Attorney General Ken Paxton is leading a multistate coalition including Louisiana, Missouri, and Utah to sue the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) of the U.S. Department of Justice for unlawfully attempting to abridge Americans’ constitutional right to privately buy and sell firearms.

The ATF’s regulatory restrictions go beyond the authority granted to the agency by Congress. The new Final Rule is arbitrary and capricious and is a flagrant violation of the Second Amendment. Attorney General Paxton is seeking immediate injunctive relief to stop the ATF from enforcing its unlawful edict while the issue is considered fully by the courts.

In the past, Congress deliberately recognized the legality of private sales of firearms by non-dealers, going so far as to narrow the statutory definition of “dealer” to prevent the ATF from unlawfully suppressing the private transfer of firearms. Nevertheless, on April 19, 2024, the ATF published a new regulation that would subject hundreds of thousands of law-abiding gun owners to presumptions of criminal guilt for engaging in the constitutionally protected private sale of firearms.

“Yet again, Joe Biden is weaponizing the federal bureaucracy to rip up the Constitution and destroy our citizens’ Second Amendment rights,” said Attorney General Paxton. “This is a dramatic escalation of his tyrannical abuse of authority. With today’s lawsuit, it is my great honor to defend our Constitutionally-protected freedoms from the out-of-control federal government.”

Gun Owners of America (“GOA”), Virginia Citizens Defense League, and Tennessee Firearms Association joined as co-plaintiffs. GOA Vice President Erich Pratt said: “Criminalizing untold numbers of Americans for simply selling a firearm in a private party transaction is wrong, unconstitutional, and must be halted by the courts. Anything less would further encourage this tyrannical administration to continue weaponizing vague statutes into policies that are meant to further harass and intimidate gun owners and dealers at every turn.”

Utah Attorney General Sean Reyes said: “Nearly 40 years ago, Congress condemned ATF for targeting innocent gun owners instead of focusing on felons, calling ATF’s actions ‘reprehensible.’ Congress even changed the law to limit ATF’s authority. But ATF is at it again, this time trying to require a citizen selling even a single firearm to obtain a license. Utah is proud to join the 26 states—in three separate lawsuits—protecting their citizens from this bureaucratic overreach.”

Mississippi Attorney General Lynn Fitch said: “By seeking to treat every legal gunowner as a commercial gun dealer and every gun sale or trade into a commercial transaction, this rule unmasks the Biden Administration’s anti-gun agenda in ways many of its other actions have not. The Second Amendment could never have contemplated this kind of regulation and it will not withstand scrutiny in the courts. On behalf of Mississippi gunowners, we are proud to stand with the citizens who have come forward in this lawsuit.”

SCOTUS Distributes Five Gun, Magazine Ban Cases for May 16 Conference

The U.S. Supreme Court on Tuesday distributed five potentially seismic gun rights cases involving challenges to gun and magazine bans in two different federal court circuits—the Fourth and Seventh—for conference May 16, and if these cases are granted certiorari, the outcome would impact pending cases in Washington, Oregon, California and bans in at least four or five other states where bans are in effect.

Bans are also in effect in Connecticut, Massachusetts, Delaware, New York, New Jersey, Hawaii and the District of Columbia.

If the high court ultimately takes these cases and delivers a Second Amendment victory, protecting so-called “semiautomatic assault weapons” and their original capacity magazines holding more than ten cartridges, it would be a crushing defeat for the gun prohibition movement and anti-gun Democrats across the map.

Two of the cases involve the Second Amendment Foundation. They are known as Harrel v. Raoul (Illinois) and Bianchi v. Frosh (Maryland). Also distributed were cases known as Gun Owners of America v. Raoul, Caleb Barnett v. Raoul and Javier Herrera v. Raoul, all three which come from Illinois. There has been some speculation about these cases possibly being consolidated if certiorari is granted.

“Today, the Supreme Court’s docket reflected that both of our cases challenging Illinois’ and Maryland’s ban on so-called ‘assault weapons’ were distributed for conference,” said SAF Executive Director Adam Kraut in a release to the media. “We are hopeful that the Court will discuss these cases during their next conference in mid-May and ultimately grant cert so that millions of Americans can enjoy the same Second Amendment rights their counterparts do throughout the country. It is time for the Supreme Court to confirm that these modern firearms are in fact protected by the Second Amendment.”

“We’re encouraged that these five cases, all essentially dealing with the same issue in two different federal court circuits, were distributed for Supreme Court conference at the same time,” SAF founder and Executive Vice President Alan M. Gottlieb acknowledged. “This could be the signal for which we have been waiting, that the Supreme Court may be ready to consider cases challenging bans on the most popular firearm in America today and their magazines. These firearms are owned by millions of peaceable citizens, and because they are in common use, they certainly qualify for Second Amendment protection.”

The ramifications of a high court review of semi-auto and magazine bans would be staggering. Gun rights advocates contend such bans are unconstitutional because they are directed at the very types of firearms which should be protected by the Second Amendment. Their magazines are necessary to make such firearms function.

Upon learning of the Court’s distribution of the cases, SAF extended recognition and thanks to the various groups involved in the two cases, including SAF’s sister organization, the Citizens Committee for the Right to Keep and Bear Arms, a national grassroots activist group, now in its 51st year. In addition, the Firearms Policy Coalition (FPC) and Field Traders LLC, are part of the Maryland case, while the Illinois State Rifle Association, C4 Gun Store, Marengo Guns and FPC are involved in the Illinois case. There are individual citizens involved in both cases as well.

According to Gottlieb, SAF has long been engaged in strategic litigation, working to get the right cases advanced through the court system, in an effort to fulfill its mission of winning firearms freedom one lawsuit at a time.