Category: Courts

SCOTUS, Anti-Gun Lawfare, and the Importance of PLCAA

The Protection of Lawful Commerce in Arms Act is an important bit of legislation that makes it a lot harder for people to sue gun companies because of what third parties do with the products they make and/or sell. It’s ridiculous we need such a law because only the mentally disabled would blame a company for making a product, selling it lawfully, only for some completely different party to do something.

I often liken it to suing Toyota over drunk drivers, and that’s for good reason.

As things are now, though, that protection is starting to crumble a bit. It’s being challenged left and right, with such a challenge currently before the Supreme Court, even as some states try to create workarounds that will let the lawfare against the firearm industry resume.

John Commerford at the NRA-ILA has some thoughts on the subject.

As we approach the 20th anniversary of the Protection of Lawful Commerce in Arms Act’s (PLCAA) passage coming up on Oct. 26, the law is imperiled by a new generation of anti-gun litigants seeking to exploit loopholes. In March, however, one such case—Smith & Wesson Brands v. Estados Unidos Mexicano—landed before the U.S. Supreme Court, where it received a chilly reception from skeptical justices across the ideological spectrum.

Most observers believe the plaintiffs overplayed their hand, although the reasoning the justices use to resolve the case will determine whether the PLCAA continues to protect the law-abiding gun industry as intended.

The PLCAA is ultimately about how the industry that enables Americans’ Second Amendment rights is regulated. Is it by relatively fixed and ascertainable statutes enacted by democratically elected legislators? Or is it by unpredictable, shifting and innumerable standards of “reasonableness” imposed after the fact by unelected judges at the behest of firearm prohibitionists?

That latter option promotes lawfare, which has been characterized as death by a thousand cuts. Lawfare practitioners may not care if they win their cases, because even one who is innocent before the law can succumb to the legal process itself.

The biggest cut is the expense of litigation. The lengthier and more complex the proceedings, the more likely the defendant will be unable to sustain a defense.

Another is reputational harm from accusations of wrongdoing, no matter how baseless, particularly if the media and public officials amplify the plaintiff’s case.

Commerford goes on to detail how the lawfare activists are using justifiable exceptions within the PLCAA and exploiting them to try and bring back their zealous attack on the one industry most vital to the right to keep and bear arms.

Gun companies can and should be able to be sued for misconduct. If they make a faulty barrel and it explodes, for example, they should be held accountable. Or, if their gun discharges in your holster, you might want to talk to a lawyer, and you should have that avenue available.

But the gun grabbers are trying to use this by claiming the companies’ marketing is misconduct, that by appealing to their customer base, they’re somehow responsible for what other people do.

The kicker is that many of these efforts don’t even try to present evidence that the criminal party even saw the marketing. That doesn’t matter to these folks, and that’s downright disgusting to me.

All Eyes on SCOTUS: Will the Court Finally Defend the AR15 & the 2nd Amendment?

Opinion: Companion article inspired by Mark Smith’s Four Boxes Diner commentary and Roger Katz’s analysis in AmmoLand News

The Supreme Court has now relisted Snope v. Brown—the Maryland “assault weapons” ban challenge—13 times. That’s not just some bureaucratic delay. It’s a signal. It means the nine justices are circling this case, taking it seriously, and possibly gearing up to act.

In fact, as Mark Smith of the Four Boxes Diner points out, the Dobbs case that overturned Roe v. Wade was relisted 12 times before the Court granted review. Snope just passed that.

For pro-gun Americans who’ve had enough of being treated like second-class citizens when it comes to constitutional rights, this might be the moment we’ve been waiting for.

“This is not a trivial matter. It strikes at the heart of the Second Amendment’s protections.” — Roger Katz, AmmoLand News.

Katz is right. The question before the Court is simple but profound:

Can a state ban semiautomatic rifles that are in common use for lawful purposes—like the AR-15, America’s most popular rifle?

Under Heller, McDonald, and Bruen, the answer should be no. But gun control states like Maryland [NJ, NY, CT, IL, et al] think they’ve found a loophole, labeling AR-15s “assault weapons” and pretending that changes the Constitution.

Let’s be clear:

  • Americans commonly own AR-15s in the multiple millions.
  • They’re used for self-defense, sport shooting, and home protection.
  • They are not unusual, high-powered, or reserved for war—they’re the modern-day musket.

The Snope case is a perfect test. It’s clean, it’s direct, and it gives the Court the chance to finally say: The Second Amendment applies to rifles like the AR-15. Period.

Mark Smith explains that strategic justices sometimes wait to grant review until they’re confident they have five solid votes—not just four—to win the case outright. That might be what’s happening now. Thirteen relists mean they’re either preparing to drop a bombshell decision or writing a dissent if the case gets wrongly denied.

And as Roger Katz warns in his AmmoLand News piece, if SCOTUS refuses to take Snope, or worse, lets the ban stand, it would “damage Second Amendment jurisprudence…profound and lasting.”

The math doesn’t lie. According to SCOTUSblog, cases relisted 5+ times have nearly a 40% chance of being granted, especially if the Court plans a summary reversal—a quick smackdown without oral argument, like in Caetano.

So what should we be watching for?

  • Grant of cert: The best-case scenario. Oral arguments and a full ruling.
  • Summary reversal: Also good. A fast correction directing lower courts to follow Heller and Bruen.
  • Denial: A disaster for gun rights, letting anti-gun states keep rewriting the Second Amendment.

But as Mark Smith says:

“Every day the Snope case is still alive at SCOTUS is a good day.”

Let’s hope the Court finally backs the Constitution with action—not just words. And if they do, Snope could be the next Heller. It’s time.

Well, this is ‘final’ so I think it can be appealed directly to SCOTUS.

Washington Supreme Court upholds ban on large ammo magazines

The Washington Supreme Court has upheld the state’s ban on high-capacity magazines, the latest in a two-year-long saga that has largely played out in Southwest Washington.

Lawmakers in 2022 banned the sale of ammo magazines holding more than 10 bullets in an effort to thwart deadly mass shootings. However, a gun store in Kelso allegedly continued to sell the magazines and picked up a civil lawsuit from the Washington State Attorney General in July 2023. The store owner — with help from the Pasco-based advocacy group The Silent Majority — sued, saying the law violated the U.S. Constitution.

A Cowlitz County Superior Court Judge later sided with the gun store and deemed the new law violated the Second Amendment.

Washington Supreme Court justices ruled 7-2 on Thursday that the new state law doesn’t violate Americans’ right to bear arms because “large capacity magazines are not ‘arms.’”

“The ability to purchase [large capacity magazines] is not necessary to the core right to possess a firearm in self-defense,” Justice Charles Johnson wrote in the majority opinion.

The decision also found that the legislation does not violate the state’s constitution.

Wally Wentz, the owner of Gator’s Custom Guns in Kelso, declined to comment Thursday.

Wentz’s attorneys at the Silent Majority Foundation said they plan to appeal to the U.S Supreme Court. Attorney Pete Serrano said they will pore over the justices’ legal analysis first.

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Trump Administration Position on Machine Guns – Not 2A Protected
This Position Undermines Its Second Amendment Credibility

“Trump administration says machine guns aren’t protected by Second Amendment,” The Washington Times reports. “The Trump administration is taking heat from gun rights advocates after the Justice Department argued in court that machine guns fall outside the scope of firearms guaranteed by the Second Amendment.”

The story quotes Assistant U.S. Attorney Jennifer Case, who, in arguing a brief in the Fifth Circuit Court of Appeals to overturn a lower court ruling, asserted “Machine guns are not the kind of arms protected by the Second Amendment.”

District Judge Carlton Wayne Reeves of the United States District Court for the Southern District of Mississippi had properly ruled that the Supreme Court’s Bruen decision, codifying that text, history and tradition at the time the Constitution was ratified, defined the standards to be used in determining Founding Era intent.

Besides, the Second Amendment says “arms.” It doesn’t say “kinds of arms.” Continental Congress Delegate Tench Coxe’s views were reflective of what the understanding was at the time, when he wrote, “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

And for what purpose?
“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms,” Coxe declared.

Where’d you pull “kinds of weapons” out of, AUSA Case? She’s relying on the “in common use at the time” artificial construct that restricts “legal” ownership to what has not been banned by infringements, and limits gun uses to “self-defense.”

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Obama Judge Goes Full Theater Kid, Declares It ‘Unconstitutional’ for Trump to Pull Security Clearances

As lower and district court judges continue to one-up each other with absurd usurpations of clearly stated executive authority, another contender has entered the ring.

U.S. District Judge Beryl Howell ruled on Friday night that the President of the United States does not have the power to pull government security clearances from Perkins Coie, a private law firm. Yeah, that would be the same Perkins Coie that worked with Democrats to gin up the Russian collusion hoax. 

In her order, Howell decided that quoting Shakespeare was appropriate. I guess our judiciary is full of theater kids.

“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers,’” Howell wrote in the 102-page order on Friday. 

Howell alleges that the Trump administration violated the First, Fifth, and Sixth Amendments, with her basic argument being that the executive order in question amounted to illegal coercion. In arguably politicized fashion, she went on to express animosity toward the law firms that cut deals with the administration to keep their clearances.

All of this will undoubtedly and justifiably seem ridiculous to onlookers, regardless of what legal arguments may or may not actually exist. Control over security clearances is a vested power in the executive branch, and if the president decides he doesn’t want a law firm that literally targeted him on behalf of Hillary Clinton to have access to classified materials within his administration, one would think he should be able to do so.

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Kostas Moros

Time for a thread on the amicus brief submitted by the United States (!!!) in Wolford v. Lopez. To my knowledge, it is the first-ever Supreme Court brief filed by the United States in full support of petitioners challenging a gun law as unconstitutional under the Second Amendment, but someone correct me if I am wrong on that assertion. The amicus brief in Heller that the Bush administration did was more wishy-washy (i.e., yes 2A is an individual right but please remand because the analysis was wrong).
Great introduction that goes into the ramifications of the vampire rule. And as our amicus brief will cover, this was intentional. The vampire rule was created by antigun academics who openly stated the aim was to discourage carry.

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First Circuit Rules in Favor of Massachusetts Assault Weapons and Magazine Ban

A federal appeals court determined Massachusetts’ ban on certain semi-automatic firearms and magazines aligns with historical firearm regulation and doesn’t violate the Second Amendment.

The First Circuit Court of Appeals, in a unanimous decision by a three-judge panel, confirmed the denial of a preliminary injunction against Massachusetts’ law prohibiting the sale of so-called “assault weapons” such as the AR-15 and magazines that hold over ten rounds. The court found that its previous decision upholding a similar Rhode Island magazine ban also applied to Massachusetts’ restrictions on firearms.

Judge Gary Katzmann wrote in Capen v. Campbell, “A straightforward application of our prior holding in Ocean State Tactical supports the Commonwealth’s demonstration that the Massachusetts Ban’s AR-15 restriction ‘is consistent with the Nation’s historical tradition of firearm regulation.’” He added, “This means that Appellants have failed to demonstrate at this stage that the Ban is unconstitutional in all its applications.”

This decision follows a pattern of appellate courts upholding state-level bans on certain firearms and magazines since the Supreme Court’s landmark New York State Rifle and Pistol Association v. Bruen ruling in 2022.

The Bruen decision changed the landscape for Second Amendment legal challenges by now requiring firearm regulations to abide by the nation’s “historical tradition of firearm regulation.” This new framework has opened new avenues for gun owners to challenge AWBs and magazine bans in solid blue states. That said, the courts have still placed obstacles for gun owners seeking to roll back unconstitutional gun control measures. 

Shortly after the Bruen ruling, U.S. District Judge Raymond Moore issued a temporary restraining order (TRO) against Superior, Colorado’s ordinance prohibiting AR-15s and magazines over 10 rounds. The court rejected the town’s argument that such weapons are “dangerous and unusual,” calling attention to their widespread lawful use and the lack of historical precedent for the implementation of such bans at the local level. Judge Moore alluded to Bruen’s emphasis on text and tradition, writing that the town’s public safety justification did not trump constitutional rights. While the TRO was limited to 14 days, the case marked the beginning of an early wave of judicial skepticism toward municipal AWBs through the use of the Bruen framework.

With respect to Oregon, Arnold v. Kotek, an Oregon state court permanently enjoined Measure 114, a 2024 ballot initiative that led to the ban of magazines holding over 10 rounds and the imposition of a permit-to-purchase system. Judge Robert Raschio ruled the law violated the Oregon Constitution’s right to bear arms, finding that high-capacity magazines have a valid use in the context of modern self-defense and that the state failed to demonstrate a historical tradition for such restrictions.

Though the Oregon Court of Appeals later reversed this decision, the case underscores how Bruen’s logic has continued to influence state-level challenges.

In Illinois’ case, in Barnett v. Raoul, U.S. District Judge Stephen McGlynn ruled last November that Illinois’ statewide ban on assault weapons and magazines holding over 10–15 rounds violated the Second Amendment. The court determined that AR-15-style rifles and similar firearms are commonly owned and used by citizens for legal purposes, including self-defense, and thus fall under Second Amendment protection.

Judge McGlynn stressed that the state failed to identify historical analogues for banning weapons widely used by law-abiding citizens, as dictated by Bruen. However, the decision was stayed for 30 days pending appeal, but the 7th Circuit later allowed the ban to remain in place temporarily while the appeals process goes on. 

Going back to Massachusetts, the state can continue enforcing its firearms and magazine restrictions. The plaintiffs may either appeal the decision or return to district court to argue the case on its merits. The legislation being challenged is the 2024 Act Modernizing Firearms Laws (Chapter 135/H.4885), which Gov. Maura Healey (D) signed last July.  The legislation replaced “assault weapon” with “assault-style firearm” and broadened definitions to include firearms with interchangeable parts or receivers compatible with prohibited models. Additionally, the bill mandated serialization and registration of all firearms, including privately manufactured “ghost guns,” within strict timelines, while also reinforcing the 10-round limit for detachable magazines and introducing new penalties for non-compliance.

With this decision in the books, Massachusetts maintains some of the nation’s toughest gun laws, pending any further appeals. While the post-Bruen era offers new opportunities for gun owners to resist gun grabs in blue states through litigation, these legal battles will be protracted and costly in nature. Restoring gun rights in the most hostile jurisdictions toward the right to self-defense will be no walk in the park.

hawaii firearms coalition

The U.S. Government Just Asked the Supreme Court to Strike Down Hawaii’s Gun-Carry Law

Here’s what you need to know:
In a high-profile Second Amendment case (Wolford v. Lopez), the U.S. Department of Justice filed a legal brief urging the Supreme Court to review—and reverse—the Ninth Circuit’s decision that upheld Hawaii’s controversial concealed carry restriction.

What’s the law?
Hawaii makes it a crime (punishable by up to 1 year in jail) for a licensed gun owner to carry a firearm on any private property open to the public (like gas stations, stores, or restaurants) unless the property owner gives express permission, such as posting a sign.

Why is the DOJ opposing it?
According to the DOJ’s brief:
•The law inverts centuries of legal tradition, where people could carry arms unless told otherwise.
•It functionally bans public carry—turning everyday errands into legal minefields for gun owners.
•It targets gun rights, not protects property rights—especially since it exempts police, government employees, and others.
•It conflicts with NYSRPA v. Bruen (2022), where the Supreme Court ruled states cannot impose burdens on the public’s right to carry without clear historical justification.
What’s at stake?
This case could shape the future of the Second Amendment. Since Bruen, 5 states (including CA, NY, and NJ) have passed similar laws—impacting over 75 million Americans. There’s also now a conflict between federal appeals courts, making Supreme Court review more likely.

Bottom line:
The DOJ—under the TRUMP administration—is siding with gun rights advocates here, warning that Hawaii’s law “effectively nullifies” the right to carry firearms for self-defense.

Kansas Supreme Court affirms product liability immunity of gun maker, seller in civil suit

Case centers on wounding of ESU football player in mishandling of Beretta

TOPEKA — The Kansas Supreme Court agreed Friday with a district court decision tossing a lawsuit filed by a former Emporia State University football player shot by a teammate who mistakenly believed that disassembling his newly purchased handgun required pulling the trigger.

In 2018, Andre Lewis bought a Beretta APX 9mm handgun at Bass Pro Outdoor World in Olathe. While idling his Dodge Charger at a downtown Emporia stoplight several months later, Lewis decided to show his front-seat passenger, Marquise Johnson, that he knew how to take the gun apart. Court records show Lewis was convinced the gun wouldn’t fire with the magazine removed and that the trigger had to be pulled before disassembly the weapon.

Lewis was wrong on both counts, and the bullet that had been in the chamber struck Johnson in his left leg. The wound resulted in amputation of the limb below the knee.

Johnson’s attorneys filed a product liability lawsuit against gun manufacturer Beretta and retailer Bass Pro Shops. The suit alleged Bass Pro sold and Beretta manufactured a defective and unreasonably dangerous handgun.

“Unintentional shootings like Marquise Johnson’s are preventable,” said plaintiff’s attorney Jonathan Lowy. “Like any other product, guns can and should be made as safe as possible to make injuries less likely.”

The District Court in Lyons County granted summary judgment in favor of the firearm maker and seller based on a reading of the federal Protection of Lawful Commerce in Arms Act. The PLCAA forbids lawsuits against manufacturers or sellers when a person criminally or unlawfully misused a firearm. This federal immunity designed to shield the gun industry wouldn’t hold if the gun was used as intended or in a reasonable way.

The case attracted an amicus brief from Everytown for Gun Safety Support Fund that argued the immunity law applied only if the “volitional act, apart from the discharge, constitutes a criminal offense.”

In a split decision, the Kansas Court of Appeals reversed the district court and determined the federal statute didn’t offer immunity to defendants in this case because Lewis didn’t intend to discharge the gun.

In an appeal to the Kansas Supreme Court, however, the firearm manufacturer and dealer argued the Court of Appeals came to the wrong conclusion about application of the federal law and that liability immunity existed because Lewis deliberately pulled the trigger. The state Supreme court found that argument persuasive.

“We hold that firearm sellers’ interpretation is a better reasoned and more accurately reflects Congress’ intent as reflected in the text of the PLCAA,” said Supreme Court Justice K.J. Wall.

Wall, an appointee of Democratic Gov. Laura Kelly, said factual disputes about whether Lewis’ actions made him culpable for a criminal offense would typically be resolved by a jury. However, the justice said, it was a violation of state law for Lewis to discharge the gun on a public road.

“Under the unique facts of this case,” Walls wrote, “any dispute about Lewis’ mental state cannot save Johnson’s lawsuit from the PLCAA’s immunity provision.”

He said the Court of Appeals erred by reversing District Court Judge Merlin Wheeler’s decision to grant summary judgement against Johnson.

The court record indicated Lewis purchased the Beretta after reviewing Bass Pro Shop’s “10 commandments of safe gun handling,” which included a rule about keeping the muzzle pointed in a safe direction. Apparently, Lewis reviewed the rules before signing a form to acknowledge he had read them.

The Beretta was accompanied by a user manual that explained the gun could fire even after a magazine had been removed. In addition, the booklet stated the gun’s striker-deactivation button allowed users to disassemble the gun without pulling the trigger.

The Beretta APX had a warning stamped on the gun frame that was on point in the case: “FIRES WITHOUT MAGAZINE.”

BLUF
In rebuttal, Francisco effectively summarized the core of the case: The PLCAA is “not just about protecting the manufacturers, the distributors and the retailers, but it’s about protecting the right of every American to exercise their right under the Second Amendment to possess and bear firearms. That right is meaningless if there are no manufacturers, retailers and distributors that provide them in the first place.”

What Supreme Court Justices Had to Say About Mexico’s Attempt to Demolish Our Second Amendment

Mexico has extinguished its constitutional arms right and now seeks to extinguish America’s,” stated the NRA’s amicus brief in the U.S. Supreme Court case Smith & Wesson v. Estados Unidos Mexicanos. The oral argument took place on March 4, and the Court’s decision is expected by the end of June. Based on the Justices’ questions during oral argument, there is reason for cautious optimism that the Court will enforce the federal statute that prohibits abusive lawsuits designed to destroy American firearms businesses.

The roots of the current Mexico case go back to 1998, when the gun-ban group Handgun Control, Inc., orchestrated meritless lawsuits by big-city mayors to attempt to bankrupt American firearms companies through the sheer cost of litigation. Handgun Control, Inc., later changed its name twice, and now calls itself Brady United.

In response, two-thirds of the states enacted legislation to forbid such abusive suits. Then in 2005, a bipartisan Congress passed and President George W. Bush (R) signed a federal statute called the Protection of Lawful Commerce in Arms Act (PLCAA) to stop the frivolous suits. Given the new law, most judges promptly dismissed the abusive suits.

Yet two decades later, the Mexican government is in American courts attempting to accomplish what the previous lawsuits did not, namely bankrupting the American firearms industry—and thereby making the exercise of Second Amendment rights impossible.

The allegations in the Mexico case are updated versions of the same bogus allegations from the earlier suits: American firearms businesses that obey all of the many laws about firearms commerce should be held financially liable for criminal gun misuse. Mexico wants $10 billion from American firearms businesses, plus court-ordered, drastic restrictions on the firearms industry.

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U.S. First Circuit Court Of Appeals Rules Assault Weapon Ban Constitutional

The United States First Circuit Court of Appeals, on April 17, held that Massachusetts law banning the sale, transfer, or possession of an assault weapon is not unconstitutional under the Second Amendment, sending a clear message to Americans that the Boston-based kangaroo court is either illiterate, corrupt, or just unforgivably stupid.

I’ll be honest here, my ability to suffer foolishness kindly on this matter has permanently expired, so if you aren’t a fan of name-calling and my propensity for the abrasive truth, then this one may not be for you.

Massachusetts resident, Joseph Capen, brought the case, announcing his plan to purchase items restricted by the infringement for the lawful purpose of self-defense, but a three blind mice panel of subversive activist judges who wouldn’t know a natural right from ringworm performed just the right amount of mental gymnastics necessary to return with a ruling so heavily steeped in treason that I’m offended by their citizenship status alone, much less their seat on a bench.

Comrade Judge Gary Katzmann, whom I definitely wouldn’t let babysit my children, wrote for the three-traitor panel that the “court” needed to consider whether the law was “consistent with this Nation’s historical tradition of firearm regulation,” which would make it allowable under the Second Amendment.

To be fair, Katzmann and his cronies would have found it consistent with a bowl of cereal if doing so properly served his anti-American agenda, and that is about as plausible as the panel’s holding that the ban on AR-15s, the most common sporting rifle in America, does not unduly burden civilian self-defense.

The court was so disingenuous in its ruling that it claimed Capen and additional appellants failed to show any instance in which these models had ever been used for self-defense, an asinine finding that any search engine could refute in seconds with days and weeks of reading material.

Katzmann embarrassingly attempted to correlate a longstanding tradition of regulation with the outright banning of “specific weapons once it became clear that they posed a unique danger to public safety, including mass deaths and violent crime unrelated to self-defense.” However, no such longstanding tradition exists, with the mental gymnastics here contributing mostly to a sad perversion of the Bruen decision, for which the Supreme Court is likely to tuck tail and expose its lack of spine.

In fact, even machine guns are not banned outright. But Katzmann and his ilk of treasonous judicial activists never burden themselves with obstacles like honesty, integrity, or their oath to America and the Constitution. Why let any of that get in the way of the internal insurrectionist agenda?

Katzmann and his merry band of idiots also claimed the ruling was not inconsistent with Heller, noting that the Second Amendment right was not unlimited and did not pertain to weapons “designed for military use.”

While this take is genuinely not unique by any standard, it has also been debunked since, well, the beginning, as the Second Amendment clearly states in plain English, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” A “well-regulated militia,” by definition, refers to a body of citizens trained and equipped to serve in a military capacity, ensuring the security of a free state, the Founding principle behind the Second Amendment.

Here’s a note to Katzmann and all the activist judicial traitors out there. If I can disprove you that easily, your children should be embarrassed by your legacy. There is very little I find more disgraceful than the absolute irreverence for your oath and obligation to the American people while you work to weaken the United States of America and poison our founding values from the inside.

Throughout history, many theories have been propounded as to the black robes worn by judges. Some say they provide a symbol of the authority and power conferred by the state, while others suggest they foster uniformity and promote the concept that justice remains blind. Judges like Katzmann and his First Circuit cohorts, however, bring modern clarity to the garb, as it seems the real symbolism behind the black robe is the death and mourning of our Constitution.

Alito’s right to warn: Court’s knee-jerk habit of slapping Trump will cost it dearly.

“A number of judges have seemingly adopted a constitutional meta-principle: what a past President did, President Trump may not undo.”

So wrote Harvard Law professor and constitutional scholar Adrian Vermeule on Friday after a district-court judge issued yet another lawless nationwide injunction meant to handcuff Trump and halt his agenda.

It’s a criticism the Supreme Court, and particularly Chief Justice John Roberts, must take to heart.

One of the hallmarks of Roberts’ term has been an overweening desire to guard the judicial branch’s “legitimacy.”

But Roberts seems oblivious to the fact that the biggest threat to the courts’ legitimacy comes from the courts themselves — and his desire to preserve the judiciary’s standing with a small circle of Washington and academic insiders.

We saw that as far back as 2012, when Roberts switched sides in the case against Obamacare at the last minute, for fear that striking down that unprecedented bill would upset the DC applecart and harm the court’s legitimacy.

Instead, it was a self-inflicted wound. Nobody respects a trimmer.

Roberts’ Obamacare decision wasn’t rooted in the Constitution, but an attempt to have it both ways, giving the Democrats enough of a victory to keep them from declaring war.

And we’ve seen that sort of thing repeatedly in the years since.

Roberts seems less concerned with preserving the court’s legitimacy in the eyes of America’s citizens, and more with the views of the editorial pages of The New York Times and The Washington Post, plus some Ivy League law professors whose schools’ decaying reputations should give him pause.

But now the flurry of lower-court interference is reaching crisis proportions, says Harvard’s Vermeule and others.

The prime issue, among others, is the illegal — and yes, it was contrary to the statutes on the books — Biden administration policy to admit millions of unvetted migrants into the country, and to allow them to stay here.

The “rule of law” didn’t matter then, because the crowd to which Roberts defers was in favor of open borders and its massive influx of a low-wage, government-dependent underclass.

Biden’s border policy has never been popular with the public, but the public isn’t Roberts’ concern: When he worries about legitimacy, he’s really thinking peer opinion — the “Mean Girls” judiciary.

“People Who Bypassed Legal Process in Migrating to USA Demand Legal Process before Being Kicked Out,” as The Babylon Bee parody site put it.

This came to a head early Saturday as Roberts and six colleagues stepped in to temporarily uphold a lower-court opinion interfering with Trump’s deportations.

The Supremes acted one-sidedly and with untoward swiftness to block the president — in accordance, it seems, with Vermeule’s dictum.

But don’t take my word for it. Here’s what Justice Samuel Alito said, in a blazing dissent:

“Literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation.”

The court may make much of the “rule of law,” Alito noted — but “both the Executive and the Judiciary have an obligation to follow the law.”

The court’s irregular behavior here brings that into serious question.

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Fight with Soldiers, Not Lawyers.

When a group of German saboteurs were caught in New York and Florida in June 1942, planning to blow up hydroelectric plants and other loci of American industrial power but ratted out by two of their fellows in Operation Pastorius, President Franklin D. Roosevelt knew exactly what he was not going to do. “I want one thing clearly understood, Francis,” he told his Attorney General, Francis Biddle. “I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?” Biddle understood: this was war. There would be no civilian “due process.” They would get what was coming to them.

The men had buried their German uniforms on the beaches, and were wearing civilian clothes and carrying a lot of greenbacks when apprehended. Since they had not actually done anything, under civilian law, smart lawyers could get them off with just a couple of years in prison for violating immigration laws, spitting on the sidewalk, and picking their feet in Poughkeepsie. Further, there was a Supreme Court precedent from the Civil War era to deal with, Ex Parte Milligan (1866), in which a Confederate sympathizer and propagandist in Indiana had had his conspiracy conviction by a military tribunal overturned on the grounds that federal courts were still operating at the time of his arrest, and that’s where he should have been tried.

From Roosevelt’s point of view, however, habeas was a luxury the country couldn’t afford; Lincoln had felt the same way during his time as commander-in-chief. Pearl Harbor was, after all, only six months in the rear-view mirror and while the Battle of Midway had just sent the Japanese carrier fleet to the bottom, the Brits had gone tits up at Dunkirk in May 1940 and the Soviets were continuing to reel from Operation Barbarossa, which launched in June 1941. Shortly after the capture of the Germans, FDR issued Executive Proclamation 2561, which created a military tribunal to try their cases. They were thus charged not under civil law but American laws of war dating back to 1775 — the ones that allowed combatants to summarily execute spies and saboteurs. (During the Revolution, both the American  Nathan Hale and the British Major John André were hanged as spies.)

Instead, the operatives were given a military tribunal, convicted, and six of the eight (all had lived in the U.S. and two were American citizens) were sent to the electric chair in August; the two informers were given life or extended sentences in exchange for divulging the plot. Because in those days the Supreme Court actually did read the election returns, Roosevelt’s solution had been pre-emptively sanctioned by the Court in Ex Parte Quirin (July 1942):

In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants. Noting that Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants, the Court therefore determined that the President had not exceeded his power. Furthermore, the Court asserted that the Fifth and Sixth Amendments “did not enlarge the right to jury trial” beyond those cases where it was understood by the framers to have been appropriate.

What a difference fourscore and three years make. Although the Islamic ummah declared war on the United States of America in 1998, and although President Trump has designated Mexican and South American narco gangs such as Tren de Aragua as terrorists under the Alien Enemies Act of 1798, an appalling number of American lawyers — including some ostensibly on the right — appear not to have gotten the message, and have dragged him into federal court over and over again over the phantom issue of alien “rights.” Most recently, the Supreme Court under the wretched John Roberts, ignored its own precious precedents and issued a midnight order temporarily blocking Trump from deporting criminal aliens slated for deportation until further notice while “due process” continues duly.

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Worth v. Jacobson: FPC 2A Challenge to MN Carry Ban on 18-20 Year Old Adults

Summary: Federal Second Amendment constitutional challenge to Minnesota’s ban on the right to bear arms as to young adults.

Plaintiffs: Kristin Worth, Austin Dye, Axel Anderson, Minnesota Gun Owners Caucus, Second Amendment Foundation, and Firearms Policy Coalition

Defendants: Minnesota Commissioner of Public Safety Bob Jacobson, Mille Lacs County Sheriff Don Lorge, Douglas County Sheriff Troy Wolbersen, and Washington County Sheriff Dan Starry

Litigation Counsel: Blair Nelson, David Thompson, Peter Patterson, and William Bergstrom

Docket: D. MN case no. 0:21-cv-01348, Eighth Circuit case no. 23-2248, Supreme Court case no. 24-782 | CourtListener Docket

Key Events & Filings:

Supreme Court
2025-4-21: Petition DENIED.
2025-3-26: DISTRIBUTED for Conference of 4/17/2025.
2025-3-24: Reply Brief for the Petitioner
2025-3-10: Brief in Response
2025-1-17: Petition for a Writ of Certiorari

The Supreme Court has denied Minnesota’s cert petition in our lawsuit challenging the state’s age-based carry ban, which means our win will stay in place: