Assault Weapon Ban Challenge: Yzaguirre v DC
As of yesterday, Arsenal Attorneys (that’s Dick Heller’s lawyer) has filed a complaint in the US District Court for DC against the District of Columbia and the MPD police chief seeking to overturn DC’s assault weapon registration restrictions on Second Amendment grounds.
Supreme Court backs Biden administration in social media case
Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.
[In other words, we aren’t going to rule on this because…..reasons. So the federal goobermint can go right ahead and keep on doing this slimy crap]
Respondents are two States and five individual social-media users
who sued dozens of Executive Branch officials and agencies, alleging
that the Government pressured the platforms to censor their speech in
violation of the First Amendment.
Following extensive discovery, the District Court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief.
On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the platforms’ moderation decisions, transformed those decisions into state action. The court then modified the District Court’s injunction to state that the defendants shall not coerce or significantly encourage social-media companies to suppress protected speech on their platforms.
Supreme Court Signals July End to Term as Trump Ruling Looms
The US Supreme Court signaled it will take the unusual step of extending its term into July as it finishes work on about a dozen cases, including Donald Trump’s bid for immunity from prosecution for attempting to overturn his 2020 election loss.
The court, which had already scheduled Wednesday as an opinion day this week, updated its website to show it will issue rulings on Thursday and Friday as well. Because Chief Justice John Roberts traditionally announces the last day of the term from the bench, the announcement indicates the Friday opinions won’t be the last ones.
In addition to the Trump case, the court will be ruling on abortion, regulatory power and social media in the coming days. Many of those decisions are likely to be deeply divisive, a factor that might be contributing to the delay.
The Trump immunity case, argued on April 25, was the last one the justices heard during the term. The court rebuffed Special Counsel Jack Smith’s requests for a faster schedule, making it unlikely the former president will go on trial before the November election.
The court heard arguments in only 61 cases this term — close to a modern low — but entered June with more than half of those cases yet to be decided. The court still has 14 cases to resolve, though overlapping topics mean the justices may issue as few as 12 rulings.
The court rarely extends its term into the week containing the Fourth of July holiday. The court issued its last opinions on June 30 in each of the last two years.
DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons
Fresh off its victory in Rahimi, the Department of Justice (DOJ) is asking the Supreme Court to clarify who it can disarm under the Second Amendment.
US Solicitor General Elizabeth Prelogar filed a supplemental brief with the High Court on Monday to request that the Justices make the federal felony gun ban their next Second Amendment priority. Specifically, the brief asked for review in five separate appellate court cases dealing with the federal gun ban for felonies of varying severity. She argued such a move was necessary because the Court failed to address the issue in its latest Second Amendment decision.
“Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1) ‘s constitutionality,” the brief reads. “Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”
The DOJ’s brief is the earliest indication of the legal fallout from the Court’s decision in US v. Rahimi, which upheld the domestic violence restraining order gun ban. It suggests that the federal government is unsatisfied with the Court’s narrow ruling in that case. It is seeking further guidance from the Court that will help lower courts evaluate the extent to which certain felons retain gun rights, something federal circuit courts have been divided over since Bruen.
Instead of providing a sweeping re-evaluation of Bruen, the majority stuck closely to the specific contours of the case against defendant Zachary Rahimi.
“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect,” Chief Justice John Roberts wrote in US v. Rahimi. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”
DOJ’s request comes as the High Court considers which of its pending Second Amendment case petitions to grant. The brief’s request for expeditious review could sway the Justices to defer to the federal government’s wishes, as it has often done in past cases.
Supreme Court Silent on Illinois Gun Ban Lawsuits
Now that the Supreme Court has released its opinions in Garland v. Cargill and U.S. v. Rahimi, the expectations about today’s Orders from Conference were pretty high. The Court has been hanging on to a half-dozen prohibited person cases as well as six combined challenges to the gun and magazine bans that are a part of the Protect Illinois Communities Act, and with Cargill and Rahimi now a part of the record, the assumption was that the justices would have decided to do something with these cases in last week’s conference.
Well, you know what they say about assuming things.
Nothing on IL cases. Nothing on Antonyuk. Nothing on Range or Daniels.
SCOTUS likes the drama, confirmed.
— Kostas Moros (@MorosKostas) June 24, 2024
In today’s orders from last week’s conference the Court did grant, vacate, and remand one case that’s been on hold; Guedes v. ATF, an FPC Action Foundation lawsuit dealing with the ATF’s bump stock ban. The Court remanded Guedes back to the D.C. Circuit Court of Appeals, which had previously upheld the ATF rule, for further reconsideration in light of its ruling in Cargill.
LEGAL UPDATE: The Supreme Court has GVR’d @FPCAction‘s lawsuit challenging the federal bump stock ban, which means the bad DC Circuit opinion was vacated and the case was sent back to be reconsidered in light of Cargill. You can read more here: https://t.co/ijBkyu8FTQ pic.twitter.com/UFkYkOttR9
— Firearms Policy Coalition (@gunpolicy) June 24, 2024
The D.C. Circuit Court of Appeals has basically been put on notice that it got it wrong in Guedes, and is now being given the chance to rectify its error.
But what about Range, which deals with whether someone convicted of a non-violent misdemeanor punishable by more than a year in prison can be prohibited forevermore from purchasing or possessing a firearm? Or Daniels, which challenges the federal statute barring “unlawful” users of drugs from legally possessing a gun? I expected those cases to be GVR’ed as well today, and it doesn’t make much sense to hold on to them for another week or more. Maybe there are one or more justices writing a dissent?
SCOTUS Upholds Rahimi Conviction, But Leaves Major Questions Unaddressed
In an 8-1 decision, the Supreme Court upheld Zachey Rahimi’s conviction for possessing a firearm while subject to a domestic violence restraining order, holding that “when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”
The majority opinion, authored by Chief Justice John Roberts, appears to open the door not only to bans on gun ownership for those subject to domestic violence restraining orders, but Extreme Risk Protection Orders as well. The Court held that while there was no “historical twin” to the statute in question at the time the Second Amendment was ratified, there are still enough appropriate “analogues” to uphold the statute.
Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be.
Like the surety and going armed laws, Section922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right.
Roberts added that “while we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, we note that Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” That at least leaves the door open for those convicted of non-violent felonies or non-violent misdemeanors punishable by more than a year in prison to regain their Second Amendment rights going forward, especially since the Court took note of the “temporary” nature of a restraining order, as opposed to the lifetime ban on possessing firearms that comes post-conviction.
Importantly, the majority opinion did shoot down one argument presented by the DOJ; the Second Amendment only applies to “responsible” citizens.
“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.
In addition to the majority opinion and Justice Clarence Thomas’s dissent, there were five concurring opinions released today; one from Justices Sonia Sotomayor and Elena Kagan, and separate concurrence from Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.
Gorsuch’s concurrence notes that today’s decision “necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.”
So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. We do not resolve whether the government may disarm an individual permanently. We do not determine whether§922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense.
Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”
We’ll be delving more into the concurring opinions and Justice Thomas’s dissent in subsequent posts, but given all of the media speculation that Justice Barrett was about to break with the conservative wing of the Court over the use of “history and tradition” to determine the constitutionality of gun laws, it’s worth pointing out this key bit from her concurrence today.
In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen’s holding.
It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? My doubts were not about whether “tradition,” standing alone, is dispositive.
While that sounds like a positive stance for Second Amendment advocates, Barrett went on to make it clear that “imposing a test that demands overly specific analogues has serious problems,” which could open the door to modern gun control laws being upheld based on the flimsiest of ties to 18th-century statutes.
As Gorsuch says, many questions regarding who can be stripped of their right to keep and bear arms, for how long, and for what reason remain unresolved by Rahimi. I’m concerned, however, that a majority of justices are ready to give pretty wide latitude to the states and Congress when it comes to answering those questions.
HERE IT IS!
Applying that methodology to this case, Roberts looks at early English and early American gun laws and concludes that they “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
That is the opening we were hoping for. This opens up a challenge to allowing non-violent offenders to have their 2A rights! It stands to argue that in that emphasized statement, that if an individual does NOT pose a clear threat of physical violence to another, they may not be disarmed.
Note that is not legally what he is saying, but I believe that a challenge has been opened on those grounds.
This is basically the exact ruling we expected:
A good comment from u/blackhorse15A on the other post:
The court ONLY decided this for people such as Rahimi where the restraining order found explicitly that they were a danger to others. The Supreme Court decision expressly says that it is not considering the constitutionality of part (ii) where it applies to restraining orders that tell people not to engage in physical violence (without finding them a threat) and leave that open to future challenge. It would be better if they just found that part unconstitutional, but I think it indicates strongly that it likely isnt and having an 8-1 deicsion is pretty powerful here for the rest of what it says.
Second good point- at the end – the Supreme Court outright rejects the idea that he government can restrict gun rights of people who are not “responsible”.
“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.
Supreme Court Upholds Ban on Gun Possession for Those Under Domestic Violence Restraining Orders
The Supreme Court ruled today that a federal law prohibiting individuals subject to domestic violence restraining orders from possessing firearms does not violate the Second Amendment. In an 8-1 decision, the justices upheld the constitutionality of the law that had been challenged by a man charged with discharging a firearm and possessing firearms while under a domestic violence restraining order.
The man, Zackey Rahimi, hoped the Court’s New York State Rifle & Pistol Association v. Bruen ruling in 2022, which places the burden of historical precedent in alignment at the time of the country’s founding to uphold modern-day gun laws, might help him get from under the indictment.
Chief Justice John Roberts, writing for the majority in United States v. Rahimi, emphasized that the Second Amendment does not prohibit all forms of gun regulation.
“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote, aligning the current regulation with historical precedents. He noted that if the Second Amendment rights include weapons that did not exist at the time the Constitution was written, then logically it also permits more regulation than when it was written .
Rahimi argued that the law infringed upon his Second Amendment rights, a position initially supported by the U.S. Court of Appeals for the 5th Circuit, which found that the government failed to provide a historical analogue to justify the restriction. However, the Supreme Court reversed this decision, with Roberts asserting that “firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” since the founding of the United States.
Justice Clarence Thomas, the lone dissenter, contended that the federal government had not demonstrated that the ban is consistent with the nation’s historical tradition of firearm regulation. He argued that the early laws cited by the majority were too different from the current ban to serve as a historical analogue. Thomas expressed concern that the law strips individuals of their Second Amendment rights without due process and could be applied to those not convicted of a crime.
The ruling comes in the wake of Bruen, which expanded gun rights by affirming the right to carry firearms in public for self-defense. That decision has led to numerous legal challenges against existing gun restrictions. The Rahimi decision, however, marks a significant moment where the Court, typically divided on such issues, voted in an overwhelming majority to uphold a restriction aimed at reducing gun violence, particularly in domestic settings.
Domestic violence advocacy groups are welcoming the decision, highlighting the heightened risks victims face when abusers have access to firearms, News Nation reports. Studies show that victims of intimate partner violence are five times more likely to be killed if their abuser has access to a gun. Guns were involved in 57% of domestic killings in 2020, according to the Centers for Disease Control and Prevention.
NC Appeals Court Rules Gun Storage Law Doesn’t Apply to Unloaded Firearms
A North Carolina appellate court has thrown out a woman’s conviction on manslaughter and other charges, ruling that she didn’t violate the state’s gun storage law because the firearm accessed by her teenage son and a friend was unloaded when it was left unsecured.
The unanimous ruling by the three-judge panel might not be the last word in the case, since prosecutors can still appeal to the state Supreme Court, but for now Kimberly Cable is free from the convictions handed down by a trial judge two years ago.
On July 2018, Cable’s son had another boy — both of them 16 years old — over at his house for the night, according to case documents. At 2 a.m., her son went in the bedroom of Cable and her husband as they were sleeping and retrieved an unloaded .44-caliber Magnum revolver that authorities say Cable possessed and a box of ammunition, both laying on top of an open gun safe.
The son showed his friend the revolver and placed it and the ammo on the top of a gun safe in his bedroom. The friend then asked the son if he wanted to play Russian roulette. The friend quickly put a bullet in the revolver, pointed it at himself and fired, dying instantly, the documents said.
What a nightmare for everyone involved. I’m sure that Cable and her husband trusted their teen to be responsible around firearms, given that her husband is a gunsmith. Unfortunately, it sounds like their kid succumbed to peer pressure, and a life was needlessly lost as a result.
While North Carolina law states, in part, that “any person who resides in the same premises as a minor, owns or possesses a firearm, and stores or leaves the firearm (i) in a condition that the firearm can be discharged and (ii) in a manner that the person knew or should have known that an unsupervised minor would be able to gain access to the firearm, is guilty of a Class 1 misdemeanor”, the appellate court ruled that an unloaded firearm can’t be discharged, and therefore doesn’t fall under the storage mandate.
Court of Appeals Judge Jefferson Griffin, who wrote the panel’s opinion, said the appeals court had never interpreted the phrase before and it was ambiguous.
He said past and present criminal law, combined with a legal rule that favors defendants for ambiguous laws, leads to the conclusion that the phrase means the firearm must be loaded.
That means Cable’s revolver was not stored in violation of the law, he wrote. The second similar firearm storage conviction against her also was reversed because there was no evidence to suggest a minor gained access to other weapons, and the involuntary manslaughter conviction was vacated because the safe-firearm conviction involving the revolver was reversed, Griffin said.
It’s a heartbreaking case, but I think the panel made the right call here. Under the statute, prosecutors had to prove both that the firearm that was taken without permission from Cable’s bedroom was in a condition where it could have been discharged and in a manner where Cable should have known that her son and his friend could get ahold of it. While Cable pretty clearly left the revolver out where it could be accessed by anyone in the home, by leaving it unloaded she kept it in a condition where it could not immediately be discharged.
I’m not a fan of gun storage mandates, in part because they impose a one-size-fits-all “solution” to a wide variety of gun owners. But while Cable may not have violated the law, she and her husband arguably violated common sense by leaving their revolver next to a box of ammo on top of a gun safe while their son had his friend in the home.
I’ve always trusted my own kids to be safe and responsible with firearms, but when my overly social son was in high school and our home was regularly filled with his buddies, I also made sure that my collection of firearms, like my liquor cabinet, was off-limits to them. Not because the law required it, but because I remember some of my own idiotic behavior from my teenage years.
Cable’s decision can be dumb, especially in hindsight, without it being a crime. But her case will almost certainly lead to demands to change North Carolina’s gun storage law even if the state Supreme Court upholds the decision from the appellate panel, and gun owners in the state will have to be on guard against any attempt to impose more heavy-handed mandates this session.
In her dissenting opinion in Cargill, Justice Sotomayor offers a concession that she may come to regret down the road:
On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles.
One of the important Second Amendment questions that has not yet been considered at length by the Supreme Court centers around which commercially available weapons ought to be counted within the provision’s definition of “arms.” The gun-control movement insists that modern sporting rifles such as the AR-15 are sufficiently exotic as to escape protection. Second Amendment advocates, by contrast, consider such a distinction to be arbitrary, reasoning that if semi-automatic handguns are protected, then there is no reason that semi-automatic rifles aren’t, too.
Since the Heller ruling in 2008, however, this debate has been focused more on whether AR-15s are mainstream than on whether they are functionally different than other guns. This is because, as Mark W. Smith explains:
The Supreme Court’s landmark decision in District of Columbia v. Heller established the “common use” test based on the text and original meaning of the Second Amendment and under the Supreme Court’s traditional role of enforcing national, constitutional baselines against local outliers.
The Heller court established the “common use” test to decide how a court should determine whether particular objects, or arms, should be protected by the Second Amendment. Specifically, do the arms being legislated or regulated constitute arms in “‘common use’… for lawful purposes like self-defense.”
To get around this problem, those who wish to ban the AR-15 have taken to claiming that the rifle is not, in fact, “in common use,” and that, as a result, it is not protected under the Second Amendment. Remarkably, Justice Sotomayor just pulled the rug from underneath that argument — and, to make matters worse, did so in an official Supreme Court opinion on the subject of firearms law. Look, again, at the language that Sotomayor uses to describe the AR-15:
He did so by affixing bump stocks to commonly available, semiautomatic rifles.
Sotomayor even uses the word “common”! Not “everyday” or “universal” or “normal” or “usual,” but common — the very word that was used in Heller.
Naturally, I do not expect Sotomayor to remain consistent. If, in the course of a case delineating the meaning of “arms,” she is asked to decide whether the AR-15 is in common use, she will undoubtedly insist that it is not. But, by the point at which she does so, her words will have been used over and over and over again — in the amicus briefs, during oral arguments, and perhaps in the majority opinion, too.
To look a little deeper in the decision, Justice Alito’s concurrence is disturbing. He’s pretty much telling Congress to please pass a law banning them, which is strange coming from a justice well known for his pro-2nd amendment views. But even if he hadn’t signed onto the decision, it would still have been 5-4 majority.
I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.
The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).
But an event that highlights the need to amend a law does not itself change the law’s meaning. There is a simple remedy for the disparate treatment of bump stocks and machineguns.
Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.
Now that the situation is clear, Congress can act.
cargill v atf
6-3 with the 3 dissenters being exactly who you think they’d be.
Bump Stock Ban Tossed Out by Supreme Court in Gun-Rights Win
A divided US Supreme Court dealt a fresh blow to firearm-regulation efforts by throwing out the federal ban on bump stocks, the attachments that let a semiautomatic rifle fire at speeds rivaling a machine gun.
On a 6-3 vote along ideological lines, the justices voided a criminal prohibition put in place by the Trump administration after the 2017 Las Vegas concert massacre, when a man using bump stocks killed 60 people. The attack was the deadliest mass shooting in modern American history.
The case is one of two firearms disputes the court is considering in its 2023-24 term, along with a constitutional clash over the federal gun ban for people subject to domestic-violence restraining orders. The bump-stock fight concerned the reach of a federal statute rather than the Second Amendment, the constitutional provision the court has used to expand gun rights in recent years.
A 1986 law bars most people from owning fully automatic machine guns or parts designed to convert weapons into machine guns. The issue was whether bump stocks meet the law’s definition of machine guns as weapons that can “automatically” discharge more than one shot “by a single function of the trigger.”
“A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does,” Justice Clarence Thomas wrote for the court majority.
Bump stocks replace the standard stock on a rifle — the part that rests against the shooter’s shoulder — with a plastic casing that lets the weapon slide forward and backward. The device harnesses the recoil energy when a shot is fired, causing the gun to slide backward and separate from the trigger finger. The separation lets the firing mechanism reset.
By applying constant forward pressure with the non-trigger hand, the shooter can then force the rifle forward so that it “bumps” the trigger finger, even without moving the finger.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.
“The majority’s artificially narrow definition hamstrings the government’s efforts to keep machineguns from gunmen like the Las Vegas shooter,” Sotomayor wrote for the group. She took the unusual step of reading a summary of her dissent from the bench for emphasis.
The case is Garland v. Cargill, 22-976.
Federal Judge Vacates ATF Rule on Pistol Braces
We’re still waiting to see what the Supreme Court does in Rahimi and Cargill, but gun owners did get some very good news from the federal courts on Thursday. A U.S. District Judge in Texas has vacated the ATF’s rule treating pistols equipped with stabilizing braces as short-barreled rifles; granting relief not only for the named plaintiffs involved in the litigation, but for every gun owner across the country who owns a brace.
In his decision, U.S. District Judge Reed O’Connor ruled that the ATF’s rule treating most pistol braces as accessories that turn pistols into SBRs violated the Administrative Procedures Act in a number of ways.
For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy.
“When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016)). “It would be arbitrary and capricious to ignore such matters” Id. But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.
Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles.
The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.” Mock, 75 F.4th at 585 (5th Cir. 2023). In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA exempt braced pistol.” Id. at 575. Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious. R.J. Reynolds Vapor Co. v. FDA, 65 F.4th 182, 191 (5th Cir. 2023) (quoting Encino Motorcars, 579 U.S. at 222).
The Defendants’ disregard for the principles of fair notice and consideration of reliance interests is further exacerbated by its failure to follow the APA’s procedural requirements for public notice and comment. As discussed above, Defendants failed to follow proper notice-and comment procedures because the Proposed Rule and the Final Rule differed in immense ways.
O’Connor also held that the ATF’s final rule on stabilizing braces was “impermissibly vague”, noting that while the ATF developed a worksheet that ostensibly allows gun owners to see if their brace-equipped pistol falls under the rule, the ATF itself still has “complete discretion to use a subjective balancing test to weigh six opaque factors on an invisible scale” to determine the legality of a brace-equipped pistol.
Consequently, the Court finds that the Final Rule’s six factor test is so impermissibly vague that it “provides no meaningful clarity about what constitutes an impermissible stabilizing brace,” and, thus, that “it is nigh impossible for a regular citizen to determine what constitutes a braced pistol” that “requires NFA registration.” Id. at 584–85. Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendants’ Motion for Summary Judgment is DENIED as to this issue.
This is a big win for the Firearms Policy Coalition and their co-plaintiffs in the case, and it should provide some meaningful protection for the immediate future. The DOJ will almost certainly appeal O’Connor’s decision, but Merrick Garland and company aren’t likely to find a lot of allies in support of the rule at the Fifth Circuit Court of Appeals, which would be the next stop for the case. Garland could try to appeal directly to the Supreme Court on the issue, but SCOTUS has been reluctant to hear interlocutory appeals from gun owners in the two years since Bruen, and there’s no guarantee the Court would take up Mock v. Garland before the Fifth Circuit has a chance to weigh in on O’Connor’s decision.
For the time being, the rule is dead. And depending on what the Supreme Court does with the Cargill case, it might not be the only ATF rule to succumb to court scrutiny this week. SCOTUS is scheduled to release more decisions from this term on Friday, and the challenge to the bump stock ban could be among the cases that are decided this week.
Judge Grants Preliminary Injunction Against ATF Rule on Gun Dealers
A federal judge in Texas has granted a preliminary injunction against the ATF’s new rule on who is “engaged in the business” of dealing firearms, but his ruling won’t apply to every gun owner across the country. Instead, U.S. District Judge Matthew J. Kacsmaryk has limited the scope of the injunction solely to the named plaintiffs in the case.
Still, given that those plaintiffs include the states of Texas, Utah, Louisiana, and Mississippi along with Gun Owners of America, the Tennessee Firearms Association, and the Virginia Citizens Defense League, millions of gun owners who could otherwise be subjected to an ATF investigation or federal charges simply for offering a firearm for sale can rest a little easier for the time being.
In his ruling, Kacsmaryk held that the plaintiff’s argument that the new ATF rule violates the Administrative Procedures Act is likely to prevail at trial. According to the judge, the new language from the ATF goes far beyond the small changes in statute that were approved by Congress as part of the Bipartisan Safer Communities Act.
Here, the Final Rule clashes with the text of the BSCA in at least three ways. First, it asserts that there is no “minimum number of firearms to actually be sold to be ‘engaged in the business’” for the purposes of the licensing requirement. . “[A] single firearm transaction”— or even a mere offer to engage in a transaction — may suffice.
[W]hile selling large numbers of firearms or engaging or offering to engage infrequent transactions may be highly indicative of business activity, neither thecourts nor the Department have recognized a set minimum number of firearms purchased or resold that triggers the licensing requirement. Similarly, there is no minimum number of transactions that determines whether a person is “engaged inthe business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.
But the BSCA says otherwise: The term “engaged in the business” means . . .
as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person whodevotes time, attention, and labor to dealing in firearms as a regular course of tradeor business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personalcollection or for a hobby, or who sells all or part of his personal collection of firearms[.]
Congress says someone must repeatedly buy and resell firearms to be considered a gun dealer, while the ATF says merely offering a single gun for sale can suffice. Kacsmaryk rightfully held that it’s the language in the statute that matters most, and the agency has likely strayed so far from the text that its rule should be rendered null and void when the case is resolved on the merits.
The judge also took issue with the ATF rule’s suggestion that “actual profit is not a requirement of the statute —it is only the predominant intent to earn a profit through the repetitive purchase and resale of firearms that is required,” pointing out that the current statute states “proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. According to Kacsmaryk, that means that proof of profit is required if the feds want to charge someone with being an unlicensed gun dealer and there are no allegations of criminal activity or terrorism involved.
Lastly, Kacsmaryk found fault with the ATF’s presumptions on “when a person has the intent to ‘predominantly earn a profit’” and “that someone is ‘engaged in the business.’” Under the ATF’s rule, people are presumed to have those intentions unless they can prove otherwise, which the judge says “flip[s] the statute on its head by requiring that firearm owners prove innocence rather than the government prove guilt.”
I wish that the judge would have applied this injunction to all gun owners and not just the named plaintiffs in the case, but this is still a significant victory for those challenging the new rule. Texas v. ATF isn’t the only lawsuit to challenge the ATF rule either, so there’s a good chance that more gun owners will find relief as the other lawsuits move forward in the courts.
Uvalde Lawsuit Against UPS, FedEx the Dumbest Ones Yet
Lawsuits against companies that had no hand in something like the awful events of Uvalde aren’t surprising, but they’re stupid.
It’s idiotic.
But I thought we’d seen all the stupid we were going to see on that front. That’s a case of “shame on me” for underestimating the vile idiocy of the anti-gun movement. It seems they have found a new target.
Families of survivors of the Robb Elementary School shooting are suing the package shipping companies UPS and FedEx for allegedly violating state and federal law and their own corporate safety standards….
On the day of the shooting, the gunman was armed with a weapon ordered online and shipped to Oasis Firearms in Uvalde where it was then picked up by the shooter.
The lawsuit claims the companies then shipped an enhanced trigger system to the gunman’s house. This allowed the gunman to convert it into a fully automatic or semi-automatic weapon.
The lawsuit cited the UPS conditions of carriage as proof of a violation. The UPS conditions state that, “Shipments must not contain goods which might endanger human or animal life or any means of transportation.”
The families also said that the shipment of the Hell Fire trigger to the gunman’s house was a violation of school zone area protections. The gunman’s house was less than 1,000 feet away from the Robb Elementary School zone.
Yep. This is pure idiocy.
The Hell Fire trigger has been on the market for over 30 years. It’s nothing but a trigger that allows people to fire semi-automatic weapons a bit faster, much like many other trigger modifications. These are not illegal and are perfectly acceptable to ship through either UPS or FedEx.
Moreover, it doesn’t violate the UPS conditions of carriage because the trigger won’t do any of those things. Not by itself, anyway.
“But it’s also a violation of school zone area protections.”
The courts have long found that people living less than 1,000 feet from a school zone don’t forfeit their Second Amendment rights simply because they live within walking distance of a school. That means people can lawfully buy guns and store them in their homes.
It also means that there is no reason for a carrier to question gun part going to a home within that area.
In short, UPS and FedEx had no reason to not ship the part to the individual who turned out to later become the Uvalde killer.
Let’s also be real here for a moment. UPS and FedEx aren’t gun companies. They don’t have any reason to stay in this fight. They make money shipping guns and parts, but do they make enough to deal with the negative publicity that might arise? Probably not. They’re far more likely to cave than a gun company might.
But let’s understand what this is really about. It’s not about UPS or FedEx doing anything wrong. They know this is a stretch. They don’t expect this to go to trial, even. Oh no, this is about something far different.
What these folks are trying to do is to use the legal system to bully UPS and FedEx into refusing to transport firearms or firearm parts. They want to see these carriers cut out every firearm-related company so that those companies will have a harder time shipping products to customers.
As a result of that, it becomes harder for law-abiding citizens to get not just parts but guns shipped to their FFL.
All of this isn’t about correcting wrongs committed prior to Uvalde. It’s about making it harder for you and me to exercise our Second Amendment rights. Who needs gun control if you can’t find a gun to buy in the first place?
That’s what this is about. Sure, this one lawsuit won’t necessarily change the landscape, but it’s never about one lawsuit. It’s about the death by a thousand cuts. It’s about making it just too difficult to deal with the firearm industry.
And the stupidity won’t end here, either. We’ll see more and worse.
MA: Carry Permit Case Derived from Bruen Resolved in Favor of Plantiff
The Second Amendment case of Morin v Lyver, granted certiorai, vacated, and remanded back to the First Circuit, has been decided in favor of the plaintiff, Alfred Morin.
In June of 2022, the Supreme Court published clarification of how the Second Amendment should be treated by the Courts, in the Bruen decision. Bruen gave clear guidance on how Heller should be applied. This was necessary because the Circuit courts had created a complicated two step process which was used to side step the Heller decision. In Bruen, the court said the two step process was one too many. The Court laid out a simple process to judge Second Amendment cases. As a result of Bruen four pending cases were granted certiorari, vacated, and remanded back to their circuits for rehearing using the Bruen process. Morin v Lyver was one of the four cases. It was remanded back to the First Circuit on October 3, 2022.
Morin was severely victimized as an honest man attempting to follow the law. He suffered significant legal damage for the attempt. Morin had been issued a Massachusetts license to carry in 1985. He had grown accustomed to legally go about armed. He visited the District of Columbia, and was about to enter the Museum of Natural History when he noticed he was not allowed to carry firearms in the Museum. From casetext.com:
The Commonwealth issued Plaintiff a Class A license to carry firearms in 1985. His Class A license allowed him to carry a concealed firearm in public, and he had a habit of always carrying a loaded pistol on his person. In October 2004, Plaintiff drove from Massachusetts to Washington, DC, to visit his daughter.
Unaware that the District of Columbia would not recognize his Massachusetts license, he carried his pistol with him. While visiting the American Museum of Natural History during his trip, Plaintiff noticed a sign banning firearms. He approached a guard at the museum and asked to check his weapon. The guard contacted the police, who arrested Plaintiff and charged him with carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition.
Plaintiff pled guilty to attempting to carry a pistol without a license, in violation of D.C. Code § 22-3204(a)(1) (2004), and possession of an unregistered firearm, in violation of D.C. Code § 6-2376 (2004). (Docket No. 21-3). The court sentenced him to sixty days in prison on each count, to run concurrently, as well as three months of supervised probation and twenty hours of community service.
His prison sentence was suspended.
When Morin applied to have his carry permit renewed in 2008, he was denied because of the D.C. conviction. Morin appealed this decision all the way to the Supreme Court of the United States. Morin’s case became part of the legacy of the Bruen decision. The Court of Appeals for the First Circuit sent the case back to the Massachusetts District Court.
Rather than re-hear the case, the Plaintiff (Alfred Morin) and the defendants (Commonwealth of Massachusetts and Police Chief William Lyber) agreed to a joint motion for judgement and proposed judgement. Plaintiff Morin would be issued a permit to purchase. The judgment was filed on March 3, 2023. From the Joint Motion for Judgement:
The parties agree that the Court should enter the following order of judgment in favor of Plaintiff:
Under the specific facts of this case and applicable law, including but not limited to New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the limitations contained in G.L. c.140, § 131A to the extent it incorporates G.L. c. 140, § 131(d)(ii)(D), cannot properly be applied to Plaintiff, and Defendants should accordingly issue Plaintiff a permit to purchase pursuant to G.L. c.140, §131A.
Morin is the second of the four cases which were granted certiorari, vacated, and remanded back to their circuits to reach a final judgement after Bruen. Young v Hawaii reached a settlement on December 15, 2022. Duncan v Bonta is still in play in the Ninth Circuit. Association of New Jersey Rifle and Pistol Clubs, Inc v Grewal is ongoing in the Court of Appeals for the Third Circuit.
It has always been a genetic ‘treatment’
The United States Court of Appeals for the Ninth Circuit has delivered a seismic decision that could reshape public health policy across the nation.
In a contentious case involving the Health Freedom Defense Fund and other plaintiffs versus the Los Angeles Unified School District (LAUSD), the court has declared that mRNA COVID-19 injections do not qualify as vaccines under traditional medical definitions.
The case revolved around the LAUSD’s COVID-19 vaccination policy, which required all employees to be fully vaccinated against COVID-19 by a specified deadline.
The ruling points out that traditional vaccines are designed to provide immunity and prevent transmission, which is not conclusively proven in the case of mRNA COVID-19 shots.
The Gateway Pundit previously reported that the Centers for Disease Control and Prevention (CDC) had modified the definition of “vaccine” to include the mRNA shots.
So, look at what the CDC did. Here’s the definition the CDC used on 26 August 2021:
Rather than admit the COVID-19 vaccine is not working as advertised, the CDC took a page out of Orwell’s 1984 and opted for new spin language.
Here is the new definition:
It can be recalled that Pfizer’s President of International Developed Markets, Janine Small, admitted in an EU hearing that the vaccine had never been tested on its ability to prevent transmission, contrary to what was previously advertised.
Judge Collins, in a concurring opinion, highlighted that compulsory medical treatments for individual health benefits infringe upon the fundamental right to refuse such treatments. This perspective aligns with the constitutional principles protecting personal liberty against unwarranted governmental intrusions.
You can read the full ruling below:
ANTI-GUN POLITICIANS DISPARAGE SCOTUS AS SECOND AMENDMENT CASES, ELECTION LOOMS
There’s a troubling trend by certain politicians to salt the ground at the U.S. Supreme Court before more significant firearm-related cases can be argued and decided. Politicians are disparaging the justices in an attempt to politicize the Court and delegitimize decisions even before arguments are heard. It’s unfolding in the cruelest ways, and it threatens the separation of powers between the three co-equal branches of government – the Executive, Legislative and Judicial Branches.
It is also a reminder that November’s presidential election carries with it added significance for the future of the Judiciary.
Just last week, Chief Justice John Roberts rejected a request by U.S. Senate Democrats to meet to talk about Supreme Court ethics and a ginned-up controversy over Justice Samuel Alito flying flags outside his homes in Alexandria, Va., and Long Island Beach, N.J. The first incident stemmed from a 2021 dispute with a neighbor who personally targeted Justice Alito’s wife, Martha-Ann, seemingly as a form of protesting the violence of Jan. 6. Mrs. Alito made the sole decision to fly an inverted flag at their Virginia residence in response to a neighbor’s pointed attacks. More manufactured controversy stemmed from Mrs. Alito flying an “Appeal to Heaven” flag at their New Jersey residence in 2023, despite San Francisco’s City Hall flying a similar flag, only to quietly take it down last month after the media uproar.
Justice Alito responded to Senate Democrats’ demands that he recuse from cases involving Jan. 6 based on these contrived controversies. He explained, in part, that a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases” would not conclude that he needed to recuse. But the harassment campaign against the Supreme Court will certainly continue. This latest attempt is a reminder that the Court will be a factor in the upcoming election and the future of Second Amendment rights for law-abiding citizens.
Former President Donald Trump campaigned in 2016 with a promise to nominate justices “first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership.”
From that came Justice Neil Gorsuch, who President Trump described as “very much in the mold of” the late Justice Antonin Scalia. Justice Brett Kavanaugh’s nomination followed, and was marked by a tumultuous confirmation hearing that included uncorroborated, decades-old allegations. Justice Amy Coney Barrett’s nomination and confirmation followed in 2020, giving President Trump three additional originalist justices on the bench to serve alongside Chief Justice Roberts and Associate Justices Clarence Thomas and Alito.
Since President Joe Biden took office, he nominated Justice Ketanji Brown Jackson who was confirmed in 2022. With the 2024 election looming, President Biden is making promises to nominate his own brand of jurist to the Supreme Court.
SCOTUS asked to hear challenge to New York’s concealed carry law
The U.S. Supreme Court is being asked to hear a legal challenge to New York’s sweeping 2022 gun control law, which sets limits on who can get concealed carry permits.
A lawsuit filed by a New York gun owner challenges the state’s new restrictions barring gun owners from carrying weapons in parks, bars and other “sensitive” locations and requiring them to demonstrate “good moral character” to get a gun permit.
In December, the 2nd U.S. Circuit Court of Appeals reversed a lower federal court decision that had gutted the law, which set a list of public areas where firearms are not permitted. The three-judge panel lifted that order, saying most of the gun law’s restrictions were consistent with the country’s history of regulating firearms in public areas.
But the plaintiff in the new legal challenge ripped the 2nd Circuit’s decision, arguing in the 38-page complaint that it was based on flawed interpretation of the Second Amendment’s requirements.
