Category: Courts

California Judge Dismisses Lawsuit Against Smith & Wesson Over Synagogue Shooting

On the last day of Passover in 2019 a 19-year-old man walked into the Chabad of Poway synagogue in Poway, California and opened fire, killing a 60-year-old woman and injuring three others, including the synagogue’s rabbi. The shooter, who fled the synagogue after his gun jammed and was taken into custody by police a short time later, was ultimately sentenced to life without the possibility of parole for his shooting spree.

The gun control group Brady, working with some of the victims of the Poway shooting, filed suit against gunmaker Smith & Wesson, as well as San Diego Guns, the store that sold the rifle to the shooter. In 2021 a judge on Superior Court of California for San Diego County allowed the lawsuit to proceed despite the arguments from the gunmaker that the Protection of Lawful Commerce in Arms Act precluded lawsuits seeking to hold gunmakers responsible for the acts of criminals, but this week Superior Court Judge Wendy Behan granted Smith & Wesson’s motion to dismiss after determining that the Protection of Lawful Commerce in Arms Act does apply to the case.

In her decision, Behan noted that while the PLCAA generally preempts civil actions for damages and injunctive relief against gun makers and sellers arising from the criminal misuse of firearms, there is a “predicate exception” that allows litigation when “where a manufacturer or seller knowingly violated a State or Federal Statute applicable to the sale or marketing of the product, where violation proximately caused the harm” that led to the lawsuit.

In this case, Brady and the plaintiffs contended that Smith & Wesson knowingly violated California’s prohibition on the possession of “assault weapons”, the federal prohibition on the sale of full-auto “machineguns”, and California’s prohibition on “deceptive, untrue or misleading advertising”. This was one of the first cases where a gun control group tried to argue that legally, there’s no functional difference between a semi-automatic rifle and a full-auto machine gun, but Behan shot down that claim in her decision.

Plaintiffs allege that the rifle used in the shooting was a fully automatic “machinegun” because it could allegedly be modified, thereby violating 18 U.S.C. § 922(b)(4). However, the evidence shows the rifle used, the M&P 15, is a California-compliant semi-automatic rifle not designed to function as a machinegun.

The US Supreme Court recently held in Garland v. Cargill (2024) 602 U.S.406, 410: “[s]emi-automatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns” as defined in 26 U.S.C. § 5845(b).

While plaintiffs argue that modifications could make the rifle illegal, there is no evidence that the shooter intended to or did modify the firearm. Forty-year-old ATF agency interpretations relied upon by plaintiffs are not binding on this court and ultimately lack relevance due to the lack of ambiguity in the statutory definition of a machinegun, which excludes firearms not originally designed for automatic fire.

The evidence remains undisputed that that Smith & Wesson “S&W” manufactured the rifle as a semiautomatic firearm, and the shooter used the rifle as a semi-automatic firearm.

Gun control advocates, including officials for the city of Chicago, are making essentially the same argument in their lawsuit against Glock; that the semi-automatic pistols should be treated like they’re full-auto machine guns because they can be illegally converted to full-auto fire. While Behan’s ruling won’t have a direct impact on that litigation, her reasoning can and should be applied to Chicago’s lawsuit.

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Well, Circuits (besides, of course the Supreme Court) are where actual binding ‘case law’ s made, so …….

Senate Dems and GOP strike a deal on judicial appointments for Trump and Biden

A deal struck earlier this week between Republicans and Democrats in the Senate will enable President Joe Biden to possibly outperform President-elect Donald Trump in terms of the number of federal judges appointed in each of their term in office.

The trade-off is that Senate Republicans will allow Democrats to confirm 12-14 lower-level district court nominees without procedural delays, and Senate Democrats will not attempt to confirm four higher-level appeals-court judges, which will instead be saved for Trump to fill once he is in office. 

“It looks like the Biden administration is going to best the first Trump administration in terms of the amount of judges that are seated on the federal courts by the end of his term,” Devon Westhill, president and general counsel at the Center for Equal Opportunity said, according to the Washington Examiner.

Senate Democrats have confirmed 220 of Biden’s federal judicial nominees, while Trump had 234 in his first term, according to the outlet.

So far Biden has confirmed 173 district court judges and 45 appeals court judges. Meanwhile, Trump confirmed 174 district judges and 54 appellate judges during his first term.

Regarding the Supreme Court, Trump appointed three justices and Biden one. Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said Thursday that he wasn’t sure if Biden appointing more judges would top the number of Trump’s appointments.

Federal Appeals Court Upholds Most of Restrictive New York Concealed Carry Gun Law; Next Stop SCOTUS
Federal Second Circuit Court of Appeals upholds “good moral character” requirement of New York’s concealed carry gun law, setting up expected showdown at the U.S. Supreme Court

We have been following the twists and turns of litigation battles associated with New York’s most recent concealed carry gun law. This is important, not only because it affects the constitutional rights of millions of law-abiding New York State citizens, but also because this case could be a bellwether for the country, should the U.S. Supreme Court decide to review the case and provide further guidance on the gun rights of citizens nationwide.

You may recall that it all started, as we reported, when SCOTUS struck down New York’s previous concealed carry gun law, which required citizens to make a showing of “special need” when applying for a carry permit, as violative of the U.S. Constitution’s Second Amendment, in the seminal New York State Rifle & Pistol Association, Inc. v. Bruen case:

We…now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria.

But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

So after Bruen, as the case is typically called, New York could not require citizens to show a special need to get a concealed carry permit. And boy was Kathy Hochul, the far-left governor of New York, pissed: NY Gov. Hochul Loses Her Mind Over SCOTUS Ruling Striking Down Conceal Carry Law.

So pissed, in fact, that she rapidly called a special session of the New York legislature, and immediately passed a new concealed carry gun law even more restrictive than the previous one: New York Democrats Undermine Supreme Court 2nd Amendment Ruling In New Legislation.

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In the Seventh Circuit, Procedural Red Herrings Threaten the Second Amendment

The Seventh Circuit heard oral argument on November 12 in Viramontes v. County of Cook, Illinois, a challenge to Cook County’s ban on semiautomatic rifles like the AR-15, inaccurately labeled as assault weapons. These bans are flatly unconstitutional under Heller, which establishes that the law-abiding citizens of this Nation have a right to possess firearms that are in common use. Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in the Nation for years. Unfortunately, the Seventh Circuit departed from Heller in a case called Bevis to hold that arms that are predominantly useful for military purposes can be banned. But even under that reasoning, semiautomatic rifles cannot be banned. They are common civilian firearms, not military firearms, because they lack the capacity for automatic and burst fire.

 The questioning at the Seventh Circuit, however, did not focus much on the merits of the case. Rather, the panel (consisting of Judges Sykes, Brennan, and St. Eve) took a surprise detour through a series of procedural objections put forward in Cook County’s briefs. (Take a listen here). Judges Sykes and St. Eve appeared to think that Viramontes’ challenge should fail because he didn’t put forward critical evidence about semiautomatic rifles in the district court. Viramontes’ lawyer challenged that notion, including by citing to specific pages in the record containing key pieces of evidence. I decided to dig deeper into the history of the case to see who has the better of the argument. The short answer is that Viramontes does. Indeed, he has built one of the most robust records I have seen by a plaintiff in a case challenging a semiautomatic rifle ban.

Before turning to the record, it is helpful to take a step back to see how we got to this point. When Viramontes filed his case, the constitutionality of a ban on semiautomatic rifles was controlled by two Seventh Circuit precedents, Wilson and Friedman. Viramontes did not initially seek to build a record in the district court because his sole path to victory was to have the Seventh Circuit or U.S. Supreme Court declare that Wilson and Friedman were wrongly decided.

Cook County, however, requested the opportunity to build a record, and the district court obliged. Then, while the case was proceeding in the district court, the U.S. Supreme Court decided Bruen, arguably wiping out Wilson and Friedman as precedent. It was in this context that the parties put forward their evidence and engaged in summary judgment briefing. It was not until summary judgment was fully briefed that the Seventh Circuit decided Bevis, and the parties addressed that decision in short filings.

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The Illinois ‘assault weapon’ ban fails

The Heller, McDonald and Bruen decisions made clear the Second Amendment acknowledges– does not grant–an individual right to keep and bear arms, a right that does not end at one’s property line, and encompasses weapons—not just firearms–in common use for lawful purposes such as self-defense. Government may not erect arbitrary barriers to the exercise of the right, but because the Supreme Court hasn’t absolutely delineated what weapons in “common use” might be, blue states like Illinois remain determined to disarm Americans, the better to crush them when it’s time for the glorious revolution.

 

Graphic: X Screenshot

Among the most common contemporary targets of anti-liberty/gun cracktivists are “assault weapons” and “high capacity” magazines. That there is no such thing as an “assault weapon” deters them not. Neither does the fact magazine capacity restrictions produce no public safety benefit, and most contemporary handguns and rifles feature magazines of greater than their commonly imposed 10 round capacity. Cracktivists have hit on the most common and popular sporting rifle, the AR-15 family, which since the Vietnam War has featured a standard 30 round magazine, as a particular object of hate. Upholding the narrative, Illinois banned “assault weapons” and high-capacity magazines.

An ”assault weapon” is best understood as any scary looking gun cracktivists want to ban. True assault rifles are fully automatic military arms. AR-15s outwardly resemble the military M4 but are like all other semiautomatic arms: they fire one round for each function of the trigger.

Don’t anti-liberty/gun crackvisits know this? Of course they do, but they also know they have unlimited taxpayer funds for lawsuits which normally take years to wend their way to the Supreme Court and in the meantime, they get to deprive Americans of their rights and even jail and ruin some of their political enemies.

Fortunately, U.S. District Court Judge Stephen McGlynn has sided with the Constitution, and overturned the Illinois ban:

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Analysis: How a Federal Judge Reinterpreted the ‘Military Arms’ Argument to Protect AR-15s

After a federal appeals court wrote AR-15s and the magazines that typically come with them out of the Second Amendment, a federal judge has written them back in.

Last November, a Seventh Circuit Court of Appeals panel declined to enjoin Illinois’ ban on so-called assault weapons and large capacity magazines after ruling that each was too akin to military hardware to be counted as “arms” protected by the Second Amendment. Yet just last week, a US District Court judge under the Seventh Circuit’s jurisdiction struck down the exact same ban as unconstitutional.

In fact, he did so by relying on the circuit’s own words.

When the Seventh Circuit panel upheld Illinois’ ban, it set a new standard to determine whether a proposed gun law implicates the plain text of the Second Amendment–a key component of the Supreme Court’s Bruen test.

“In order to show a likelihood of success on the merits, the plaintiffs in each of the cases before us thus have the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes,” Judge Diane Wood wrote in Bevis v. Naperville.

Wood drew specific attention to the “military use” prong. Relying on dicta from the Supreme Court’s Heller decision assuring other courts that the ruling did not prohibit regulation of machineguns used by the military (specifically the M16), she posited that civilian AR-15s are nearly indistinguishable from M16s. She concluded, therefore, that they are also “predominantly useful in military service” and may be banned.

Judge Stephen McGlynn came to a different conclusion regarding the “military use” of AR-15s and similar rifles when reviewing the case. While following the analytical structure handed down by the Seventh Circuit, he conducted his own inquiry into what makes a weapon “predominantly useful in military service.” Where the Seventh Circuit panel hand-waved away rate-of-fire differences between AR-15s and military service rifles, McGlynn found cause for highlighting the distinction.

“The commercially available AR-15’s external similarity to the M16 rifle and M4 carbine belies its nature, as its lack of burst or fully automatic fire fundamentally renders it a different weapon,” he wrote.

He also argued that rifles acquired for the military are subject to unique standards of “military specificity and rigorous quality-insurance inspections,” whereas civilian-market AR-15s have no such standards. Ultimately, he concluded, these differences render the AR-15 outside the scope of the Seventh Circuit’s military use standard.

“The Court holds that ‘military use’ refers to weapons that are selected, procured, tested, and issued to military members for use in combat,” McGlynn wrote. “With this in mind, none of the weapons, magazines, or attachments prohibited by PICA can be called ‘military-grade’ since they were not issued to the military for use in combat.”

Furthermore, he noted that the Seventh Circuit previously recognized a “dual use” standard for categories of weapons that have both lawful civilian and military applications in Bevis and its pre-Bruen assault weapons ban rulings.

“Obviously, many weapons are ‘dual use’: private parties have a constitutionally protected right to ‘keep and bear’ them and the military provides them to its forces,” Judge Wood wrote. “In this sense, there is a thumb on the scale in favor of Second Amendment protection. When we refer to ‘military’ weapons here, we mean weapons that may be essentially reserved to the military.”

Though Judge Wood specifically had shotguns and semi-automatic handguns in mind, Judge McGlynn found that AR-15s and similar rifles could just as easily fit the bill.

“Even if arguendo there are no material differences between the M16/M4 and AR-15, so-called ‘dual use’ has clearly been established here,” he wrote. “Clearly, even though handguns are useful and are used in military service, they are clearly protected by the Second Amendment. However, as noted above, AR-15s are distinct from their military counterparts.”

Ultimately, Judge McGlynn’s analysis represents a response to an argument that has become increasingly common among federal appeals courts looking for rationales to uphold state assault weapon bans despite Bruen’s demanding standards. It could serve as a blueprint for gun-rights advocates as they continue challenging similar bans in courts that are primed to rule against their position.

At the same time, it may not be an argument that is necessary for very long. The Supreme Court has an opportunity to take up an assault weapon ban case very soon, one that many gun-rights advocates believe is their best opportunity yet to have the justices weigh in. Should they do so, Justice Clarence Thomas, a member of the likely majority in any hardware ban case, has already tipped his cap regarding his views on the Seventh Circuit’s “military use” analysis.

In a statement accompanying the High Court’s denial of cert after the Seventh Circuit upheld Illinois’ ban, Thomas accused the panel of “contorting” the justices’ past Second Amendment guidance to reach a “nonsensical” conclusion that the Second Amendment does not protect “militaristic” weapons like the AR-15.

“The Seventh Circuit’s contrived ‘non-militaristic’ limitation on the Arms protected by the Second Amendment seems unmoored from both text and history,” he wrote. “It is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not ‘Arms’ protected by the Second Amendment.”

It may not matter much to gun-rights advocates in the end whether they’ve found an analytical avenue through the Seventh Circuit’s novel reading of the Bruen test for hardware bans. However, the Court has not been eager to take up an “assault weapons” ban case to this point. So, these lower court battles may continue to take on an outsized importance.

Court Vaporizes 50 Years of Environmental Law Leaving Trump’s EPA to Build on the Ashes

The US Court of Appeals for the DC Circuit summarily vaporized 46 years of Federal environmental regulations. Writing in a case called Marin Audubon Society, et al v. FAA, et al, the majority of a three-judge panel ruled that the Council on Environmental Quality, a cabal inside the Executive Office of the President charged with ensuring that National Environmental Protection Act requirements are interpreted uniformly across the federal government, had illegally used the Federal Register to publish that guidance thereby giving citizens, agencies, and even the courts the impression that their internal guidance had the authority of law.

The decision was written by Karen LeCraft Henderson (George H. W. Bush) and A. Raymond Randolph (George H. W. Bush) with Chief Judge Sri Srinivasan (Joe Biden) dissenting, and it found:

As the parties argue the case, it centers on whether the Agencies complied with regulations of the Council on Environmental Quality, an entity within the Executive Office of the President.  We will not address these arguments.  The CEQ regulations, which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires.

Ultra vires means the CEQ was acting “beyond the legal scope of it authority.”

The court goes on to detail the shenanigans by which an advisory body with no regulatory authority was able to write environmental regulations for the entire United States for nearly a half-century just because it decided it could.

Making the case even more awesome is that it was set off by enviro-wackos suing the FAA for allowing sightseeing flights near some national parks. The enviros claimed the FAA used the wrong standard established by the CEQ to permit the flight. They ended up being right in a backhanded kind of way.

This decision throws the entire environmental regulation scheme governing the federal government into chaos. I suspect that many of the CEQs regulations will be reissued by other agencies, but after Loper Bright Enterprises v. Raimondo (see The Supreme Court Firebombs the Administrative State and Tells Congress to Get Off Its Butt and Work) that slew the medusa called “Chevron deference,” the survival of those replacement regulations is not assured.

The silver lining is that Trump’s EPA, under Lee Zeldin (see We Have Another Trump Cabinet Pick: Lee Zeldin Gets the Nod), will get the first crack at reworking useless and expensive regulations.

Complete Decision

Marin Audobon Society vs. FAA by streiff on Scribd

Seventh Circuit Hears Oral Arguments in ‘Assault Weapon’ Ban Challenge

No, not the challenge to the gun and magazine ban that U.S. District Court Judge Stephen McGlynn found unconstitutional last Friday. The almost half-dozen lawsuits taking on the Protect Illinois Communities Act will be heard by the Seventh Circuit as well, but not for several months. Instead, today’s oral argument is in a case called Viramontes v. Cook County, which is seeking to undo the “assault weapons” ban first put in place by Cook County lawmakers in the early 1990s.

The ordinance, which was revised in 2006 and again in 2013, makes it “unlawful for any person to manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess any assault weapon or large capacity magazine in Cook County.” Earlier this year U.S. District Judge Rebecca Pallmeyer, a Clinton appointee, ruled in favor of Cook County and dismissed the claims brought by the plaintiffs.

Pallmeyer’s decision was based almost entirely on the Seventh Circuit’s denial of an injunction in yet another challenge to a semi-auto ban in Illinois. In Bevis v. Naperville, the appellate court ruled that both local and statewide bans on so-called assault weapons and large-capacity magazines are likely to withstand constitutional scrutiny because the arms in question are  “more like military weapons than those useful for self-defense.”

That decision was authored by Judge Frank Easterbrook; a Reagan appointee with a long history of upholding Illinois gun laws. In 2009, Easterbrook ruled that Chicago’s ban on handguns didn’t violate the Second Amendment because the Second Amendment’s protections didn’t extend to state and local laws. In 2015 Easterbrook ruled in favor of Highland Park, Illinois and its ban on “assault weapons”, arguing that even if arms that were in common use were prohibited, gun owners had other options available to them if they wanted a firearm for self-defense.

But Easterbrook is not a part of the three-judge panel that’s considering the constitutionality of Cook County’s gun and magazine ban today. Instead, Judge Diane Sykes (who’s authored a good ruling for gun owners), Judge Michael Brennan, and Judge Amy St. Eve will determine whether the county’s prohibition on modern sporting rifles and ammunition magazines that can hold more than ten rounds violate the Second Amendment.

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NSSF Celebrates Major Legal Victory as District Court Strikes Down Illinois’ MSR Ban

WASHINGTON, D.C.— NSSF®, The Firearm Industry Trade Association, celebrated today the decision by U.S. District Court Judge Stephen P. McGlynn of the U.S. District Court for the Southern District of Illinois striking down as unconstitutional the Illinois law that bans most semiautomatic firearms including Modern Sporting Rifles (MSRs), certain models of semiautomatic handguns and standard capacity magazines. The decision is a significant victory for the millions of law-abiding gun owners and the firearm industry in Illinois.

Illinois Gov. J.B. Pritzker signed into law HB 5471, the “Protect Illinois Communities Act (PICA),” in January 2023. HB 5741 is among the nation’s most expansive gun control laws and banned the sale of hundreds of models of rifles including commonly-owned MSRs, certain semiautomatic handguns and rifle magazines with a capacity greater than 10 cartridges and pistol magazines with a capacity greater than 15 cartridges.

NSSF, along with several co-plaintiffs, filed a legal challenge seeking to strike down this unconstitutional law and prevailed. Notably, in his decision Judge McGlynn wrote, “PICA is an unconstitutional affront to the Second Amendment and must be enjoined. The Government may not deprive law-abiding citizens of their guaranteed right to self-defense as a means of offense.” More specifically, the court held that MSRs and standard capacity magazines are in common use and have legitimate self-defense purposes.

“This decision handed down by Judge McGlynn is welcomed and what we in the firearm industry have known all along: commonly-owned firearms and standard capacity magazines are protected by law-abiding Americans under the Second Amendment,” stated Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “The U.S. Supreme Court has already recognized that semiautomatic rifles ‘traditionally have been widely accepted as lawful,’ and with over 28 million of these rifles in circulation today, they are clearly commonly-owned for lawful purposes, meeting the threshold set by the Supreme Court in its Heller decision.

Semiautomatic handguns are overwhelmingly the choice of firearm for personal self-defense. This law was clearly unconstitutional and did nothing to punish criminals who choose to break the law. It only deprives law-abiding Americans from being able to exercise their full spectrum of Second Amendment rights.”

While the court struck down the law, it did stay its permanent injunction for 30 days to give the State the opportunity to appeal and seek an emergency stay from the Seventh Circuit, which means that the law temporarily stays in effect.

NSSF will continue to monitor.

Federal Appeals Court Upholds Colorado Under-21 Gun Sales Ban

The Centennial State can once again deny 18-to-20-year-olds the ability to purchase any firearms.

A three-judge panel for the Tenth Circuit Court of Appeals on Tuesday overturned a lower court injunction against Colorado’s recently passed gun sales ban for adults under 21. The panel determined that the lower court “abused its discretion” by finding the ban likely unconstitutional. Instead, it ruled that commercial firearm purchases are not covered under the Second Amendment.

“Pineda has partially met his burden at step one by demonstrating that (1) 18- to 20-year-olds fall within ‘the people,’ and (2) the arms he wishes to purchase constitute protected “arms,” Judge Richard Federico wrote for the majority in RMGO v. Polis. “However, Pineda fails to prove that SB 23-169 implicates his right to ‘keep and bear’ arms, the third prong of step one. This is because SB 23-169 is presumptively lawful as a law that imposes conditions or qualifications upon the sale and purchase of arms and thus does not fall within the protections of the plain text of the Second Amendment.”

The ruling deals a significant blow to Colorado gun-rights advocates looking to stave off the state’s increasingly restrictive approach to firearms. The opinion opens the door for the state’s young adult sales ban to take effect for the first time, and its capacious view of permissible commercial sales restrictions could invite many additional regulations.

The case stems from Senate Bill 169, which Colorado Governor Jared Polis signed into law in May 2023. The bill raised the state’s minimum age to purchase any firearm to 21. State policy previously allowed 18-year-olds to purchase rifles and shotguns but not handguns.

Rocky Mountain Gun Owners (RMGO) immediately sued Polis over the law and secured a preliminary injunction against its enforcement last August, the same day it was supposed to take effect.

“The Court finds that the Governor has failed to meet his burden to demonstrate that SB23-169 is consistent with the Nation’s historical tradition of firearms regulation,” Judge Philip Brimmer wrote at the time.

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I have only been to Minnesota twice. The first on a summer family vacation decades ago, and second, on a layover when flying to Alaska. Other than necessity required by the latter, I have no plans to ever visit that tyrant run state again

Is Your Private Vehicle a ‘Public Space’ When There’s a Gun Involved?

It’s an odd question stemming from an equally strange case, but that’s the question the Minnesota Supreme Court will soon answer after hearing oral arguments on Monday.

Back in 2022, a guy named Kyaw Be Bee was arrested for the misdemeanor charge of carrying a BB gun, rifle, or shotgun in a public place after police discovered a BB gun underneath the driver’s seat of Bee’s car. The deputy had become suspicious of Bee and another man when he spotted them standing near a vehicle in a parking lot around 2 a.m. Bee and his companion strolled back to their own vehicle when they became aware of the deputy, and once they drove away the deputy pulled them over, which is when he discovered the BB gun.

Bee’s attorney argued in a pre-trial hearing that a private vehicle should not be considered a public place and a judge agreed; dismissing the misdemeanor charge after reasoning that a private vehicle is not a public place, even when it’s on a public road.

Prosecutors appealed that decision and the Minnesota Court of Appeals found in their favor, ruling that private cars on public roads should be considered public spaces. Bee’s attorneys then appealed to the state Supreme Court, which heard from both sides yesterday.

“To focus the law on the method of transportation upon a public roadway, instead of the geographic area of the roadway itself, ignores the clear statutory text, renders portions of the statute ineffective, leads to absurd results and is therefore not reasonable,” Saint Paul city attorney Lyndsey Olson, who argued for the state, told justices Monday.

However Drake Metzger, an attorney for Bee, said the statute is “unambiguous” about what makes a space public.

The law defines public space as “property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public.”

Lawmakers included exceptions for hunters; target shooters; people’s homes or business; and gun shows and shops.

What the law doesn’t address is whether or not a private vehicle is considered a public place; it simply says that if a gun is being transported in compliance with the law, the statute does not apply.

“At the end of the day, the inside of a motor vehicle is not a public space under this definition,” Metzger said Monday.

Metzger also argued that his client could have been charged with carrying without a license based on how the BB gun was stored in the vehicle, but accusing Bee of having a gun in a public place when it was in his car just doesn’t make sense given the language of the statute.

Olson, arguing for the state, saw it differently.

“I don’t think that this is saying that being in a motor vehicle inherently means that you’re in a public place,” Olson said. “It depends on the geographical place that the vehicle is on.”

Bee could have been charged with another crime as well, Olson said, public safety is at the root of gun laws.

“The consequences of a particular interpretation excluding vehicles on public roadways from public space could risk public safety by allowing the gun possession within vehicles without restriction,” she said.

The problem with Olson’s argument, at least from my perspective, is that it requires “interpreting” the statute instead of simply reading and adhering to the text. As Metzer says, the law in question defines what constitutes a public space, and while it does include some private property, that property must be “regularly and frequently open or made available for use by the public”. Your car, my truck, and (presumably) Bee’s vehicle aren’t open for use by the public, even when they’re on a public road, so how could they reasonably be considered public spaces?

Even if the Minnesota Supreme Court finds in favor of Bee (which, given the makeup of the court, is probably unlikely), as his own attorney pointed out, the state could still have charged Bee with improper storage of the BB gun. Whether that statute is constitutional under the text, history, and tradition of the Second Amendment is another question for another day, but when it comes to the question of whether a private vehicle is a public space, I think the answer is and should obviously be “no.”

Massachusetts grapples with fallout from landmark Supreme Court gun ruling

A landmark 2022 Supreme Court ruling involving a New York gun law has begun to undermine Massachusetts’ gun laws, with a Boston Municipal Court judge recently ordering the Police Department to provide a concealed carry license to a man it had deemed a public safety risk.

At issue is the Supreme Court’s 6-3 ruling in what is known as the Bruen case, which cited the Second Amendment to overturn a New York law that required applicants for licenses to carry concealed handguns to show proper cause for why they needed one.

The ruling prohibited states from requiring gun owners to have a “good reason” to carry, unraveling gun regulations in Massachusetts, New York, and four other states with so called may-issue laws that gave local authorities sweeping discretion over who receives licenses.

Boston Municipal Court Judge Richard Sinnott cited the ruling in August in ordering Police Commissioner Michael Cox to grant a concealed carry license for East Boston resident Jordan Lebedevitch, who wrote in his application that he hoped to work in the firearms industry and needed to carry a gun for his job at a security company. Earlier this month, Cox sued in Suffolk Superior Court to overturn Sinnott’s decision. That lawsuit is still pending.

Police had found Lebedevitch unsuitable, a legal determination fordenying the license, citing a 2023 police report from his then-wife claiming he threatened to kill himself during an argument. State law gives gun licensing authority to local police leaders.

Lebedevitch disputed the threat of suicide in a letter to the department, writing that the situation had been a “misunderstanding.” He filed a legal petition in Municipal Court, which landed before Sinnott. The judge initially ruled in favor of the Police Department but reversed his decision the next day, ordering the department to issue the license, according to court filings.

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Federal Appeals Court Upholds DC Magazine Ban

Gun owners in the nation’s capital will continue to face ammunition magazine capacity limits, a federal appeals court ruled Tuesday.

A divided three-judge panel for the DC Circuit Court of Appeals affirmed a lower court decision upholding DC’s ban on the possession and sale of what it called “extra-large capacity magazines” (ELCMs). The panel ruled the city’s ten-round limit for magazines fit within the nation’s historical tradition of regulating “particularly dangerous weapons” and those “capable of unprecedented lethality,” even though there weren’t similar bans when the Second Amendment was ratified.

“Because ELCMs implicate unprecedented societal concerns and dramatic technological changes, the lack of a ‘precise match’ does not preclude finding at this preliminary juncture an historical tradition ‘analogous enough to pass constitutional muster,’” the majority wrote in an unsigned opinion in Hanson v. District of Columbia. “Therefore, we hold Hanson is not sufficiently likely to succeed on the merits of his claim to warrant the entry of a preliminary injunction against enforcement of the magazine cap.”

The ruling deals a significant blow to gun-rights advocates in their decades-long quest to undo DC’s restrictive gun laws. It comes as appeals courts across the country have routinely upheld similar bans in recent years despite the Supreme Court raising the bar modern gun laws have to clear to pass muster in 2022’s New York State Rifle and Pistol Association v. Bruen.

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FPC Files New Lawsuit Challenging Texas Gun Carry Bans

FORT WORTH, TX (October 29, 2024) – Today, Firearms Policy Coalition (FPC) announced that it has filed a new Second Amendment lawsuit challenging laws prohibiting individuals from carrying firearms at certain locations in the State of Texas. The complaint for Ziegenfuss v. McCraw can be viewed at firearmspolicy.org/ziegenfuss.

Through the case, Plaintiffs seek to end enforcement of Texas laws that restrict firearm carry in three locations: (1) in any business where alcohol comprises 51% or more of sales (even if the individual is not consuming alcohol), (2) racetracks, and (3) sporting events. These locations “are not so-called ‘sensitive places’ where Texas can disarm people such as Plaintiffs; indeed, the challenged locations cannot be analogized to the very few—and very different—locations where bearing arms was prohibited under constitutionally relevant American history (at and around the time of the Founding),” Plaintiffs say in their Complaint.

“FPC already struck down Texas’s ban on firearm carry for adults under the age of 21. We now set our sights on ending enforcement of these locational bans so that all peaceable adults may carry firearms in public places without fear of criminal prosecution. This case is one of dozens we are litigating to help us achieve our strategic objectives and eliminate unconstitutional and immoral carry restrictions throughout the United States,” explained FPC President Brandon Combs. ……………

FPC Pushes Forward In Post Office Gun Ban Challenge

The Firearms Policy Coalition (FPC) has filed a motion for summary judgment in its case pending before a U.S. District Court in Texas challenging the Post Office gun ban.

The lawsuit FPC v. Garland challenges federal gun control laws prohibiting firearm possession, storage and carry at United States Post Offices and related properties, including post office parking lots. The plaintiffs are two law-abiding citizens licensed to carry in Texas and two non-profit membership associations—FPC and the Second Amendment Foundation (SAF).

Brandon Combs, FPC president, said the lawsuit is one in a long line of challenges designed to restore Second Amendment rights.

“Your right to carry weapons for armed self-defense does not end at the Post Office,” Combs said in a release announcing the action. “We look forward to eliminating this immoral ban and further restoring the People’s right and ability to protect themselves in public.”
In its motion for summary judgment, plaintiffs argue that the post office gun ban fails both of the standards set by the Supreme Court in New York Rifle & Pistol Association v. Bruen
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More Support For Challenges To New Massachusetts Gun Law.

We’ve reported recently how Massachusetts’ sweeping new anti-gun law, launched early by an emergency preamble attached to it by Gov. Maura Healey, is facing a lot of pushback from pro-freedom groups.

Not only have two lawsuits already been filed to challenge the law in court, but an initiative petition to get a question on the 2026 state ballot to repeal the law already has more than the 90,000 signatures needed to put the matter to the vote.

Just two weeks after the measure was signed into law the National Shooting Sports Foundation (NSSF) ponied up $100,000 to help fund the court challenge by the Gun Owners’ Action League (GOAL). Now, according to a report at masslive.com, others within the firearms industry are joining the efforts to repeal the law or have it declared unconstitutional in court.

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