Category: Courts

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.

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’

BREAKING: 9th Circuit Court of Appeals Rules mRNA COVID-19 Jab is NOT a Vaccine Under Traditional Medical Definitions

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 plaintiffs argued that the district’s vaccine mandate infringed upon their fundamental right to refuse medical treatment, as the mRNA injections do not prevent the transmission of COVID-19 but merely mitigate symptoms for the recipient.
The court’s opinion, penned by Circuit Judge R. Nelson and supported by Judge Collins, asserts that the mRNA shots, marketed as vaccines, do not effectively prevent the transmission of COVID-19 but merely reduce symptoms in those who contract the virus. This crucial distinction undermines the foundational premise of the vaccine mandates enforced by various governmental and educational institutions.
Judge Nelson pointed out that the mandate was inconsistent with the Supreme Court’s century-old ruling in Jacobson v. Massachusetts, a case that upheld the state’s right to enforce smallpox vaccinations due to their proven effectiveness in preventing disease spread. In contrast, the mRNA COVID-19 shots do not offer such public health benefits, thus failing the criteria established by Jacobson.

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:

  • Vaccine– “a product that stimulates a person’s immune system to produce immunity to a specific disease.”
  • Vaccination– “the act of introducing a vaccine into the body to produce immunity to a specific disease.”

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:

  • Vaccine– “a preparation that is used to stimulate the body’s immune response against diseases.”

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:

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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.

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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.

Jury is chosen in Hunter Biden’s federal firearms case and opening statements are set for Tuesday

WILMINGTON, Del. (AP) — A jury was seated Monday in the federal gun case against President Joe Biden’s son Hunter, after prospective panelists were questioned about their thoughts on gun rights and drug addiction while the first lady watched from the front row of the courtroom.

Opening statements were set to begin Tuesday after the jurors — six men and six women plus four women serving as alternates — were instructed by Judge Maryellen Noreika not to talk or read about the case.

Hunter Biden has been charged in Delaware with three felonies stemming from a 2018 firearm purchase when he was, according to his memoir, in the throes of a crack addiction. He has been accused of lying to a federally licensed gun dealer, making a false claim on the application by saying he was not a drug user and illegally having the gun for 11 days.

The case is going to trial following the collapse of a plea deal that would have avoided the spectacle of a trial so close to the 2024 election. Hunter Biden has pleaded not guilty and has argued he’s being unfairly targeted by the Justice Department, after Republicans decried the now-defunct plea deal as special treatment for the Democratic president’s son.

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Arkansas Supreme Court sanctions Pulaski County circuit judge over ruling on guns in courthouses.

The Arkansas Supreme Court on Friday rebuked Pulaski County Circuit Judge Morgan “Chip” Welch for violating rules of the Code of Judicial Conduct that require judges to promote confidence in the judiciary, demonstrate impartiality and act without bias.

The written admonishment comes in the form of an unsigned order that requires Welch to take a six-week online judicial ethics course by the end of July plus complete another three hours of ethics training before October. . . .

“Labeling and referring to an opinion by the Supreme Court of Arkansas as ‘LOCO’ erodes public confidence. His written opinion stating that the Supreme Court’s opinion ‘creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State’ also erodes public confidence. To suggest that this court created a class of armed lawyers is dangerous, and it undermines the public’s understanding of the judiciary’s role,” the order states. “We interpret laws, we do not make them, and Judge Welch’s suggestion to the contrary damages the public’s view of the separation of powers and the role of the judiciary.”

The LOCO label was found to be a violation of Rule 2.3, a prohibition against showing bias or prejudice. The order invokes a ban on negative stereotyping while noting his duties include conducting commitment hearings in mental-health court.

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What’s Next for Trump? The Facts, and Ways This Could Play Out.

The jury is in. Former president Donald Trump has been convicted on all 34 counts of falsifying business records.

If you thought this country was divided before, we could likely see upheaval like never before. With many seeing this trial as politically motivated by the left to take him off the ballot, what happens next?

First off, he can still run for president.

The Constitution states a candidate must be at least 35 years old, a natural-born U.S. citizen, and a resident in the country for at least 14 years. There is nothing noted about criminal charges.

Can he pardon himself?

No. Because it is a state conviction, he will not be able to pardon himself as president. Presidents only have jurisdiction over federal convictions.

Can any state take him off the ballot?

They did try, but no. The 14th Amendment, which was passed after the Civil War, states that no one who has participated in an insurrection may run for the presidency. While some states have tried to claim this against Trump regarding Jan. 6th, they have been unsuccessful in proving it. He will still be on the ballot, as long as he is the Republican nominee.

How can he serve as president if he is also serving a criminal sentence?

It is expected that due to his age and this being his first conviction, he will not serve prison time. He may be given probation, which would mean he would have to ask permission every time he leaves the state of New York. If sentenced to time in prison, which would undoubtedly be frowned upon as a politically motivated move, he could still actually legally serve as president from behind bars. (Can you believe I just said those words?)

If he is sentenced to prison and wins the election, Trump’s attorneys might argue that sitting presidents can’t be imprisoned, just as Trump has argued that sitting presidents can’t be indicted.

The 25th Amendment also states that the vice president may take over responsibilities temporarily when the president is unable to perform them. Some have speculated that this could come into play if he has to delegate from behind bars.

What about his appeal?

Trump’s team will assuredly appeal. They will have 30 days from the New York verdict to file a notice of appeal and six months to file the full appeal. It is expected any appeals filed will not be resolved before the November election. It is possible that an appeals court would agree to stay Trump’s sentence until after the appeal is adjudicated.

What does this mean?

Regardless of what people think of Trump, most agree this went too far. Time will tell, but already we are seeing a surge in support for the former president. Reports have come in that his donation site crashed momentarily from extremely high traffic.

Those who accused Trump of being a dictator and trying to undermine our country’s laws now have weaponized our judicial system to take out an opponent they weren’t confident could be beat in the polls. The Democrats have started a dangerous war, and the losers are the people of this country. Election interference must not be tolerated. Trump will not give up so easily. We are witnessing another historic moment in our nation’s history. The next months could change everything.

Jonathan Turley Has a Lot to Say About the Trump Verdict

Legal expert Jonathan Turley reacted with strong words to the guilty verdict of former President Donald Trump, who was convicted on all 34 counts at his New York hush money trial after only two days of jury deliberations spanning over nine hours.

“I obviously disagree with this verdict as do many others,” Turley tweeted, saying that he believes that the case will be reversed “eventually” either at the state or federal level. “However,” the George Washington University Law School professor added, “this was the worst expectation for a trial in Manhattan. I am saddened by the result more for the New York legal system than the former president. I had hoped that the jurors might redeem the integrity of a system that has been used for political purposes.”

In an appearance on Fox News, Turley described the strange circumstances surrounding the conviction’s announcement.

Turley, who was there at the time of the verdict’s reading, called it “one of the most bizarre moments” he ever experienced in the courtroom. Judge Juan Merchan had just said the jury had not yet reached a decision and that they’d be dismissed for the day.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 FPC, NRA File Briefs With Supreme Court Over Mexico Lawsuit

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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Anti-Gunners Channel Orwell to Defend Bump Stock Ban

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CRPA Joins Amicus Brief in US v. Kittson

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

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

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

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

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

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

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

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

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

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

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

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