Category: Courts

Analysis: Judges Show Limited Appetite for Upending Background Check Regimes

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

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

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

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

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

Continue reading “”

Week in Review: Gun Owners Targeted

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

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

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

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

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

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

Read more here.

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

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

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

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

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

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

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

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

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

You can read the filing here:

gov.uscourts.flsd_.648653.522.0.pdf

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

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

Continue reading “”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit Upholds ‘Enhanced’ Gun Background Checks for Young Adults

Placing additional background check requirements and delays on 18-20-year-old gun buyers does not run afoul of the Second Amendment, a federal appeals court ruled Friday.

A three-judge panel for the Fifth Circuit Court of Appeals unanimously ruled against challengers who took issue with the “enhanced” background check provisions of the 2022 Bipartisan Safer Communities Act (BSCA). The panel found that the plaintiffs failed to show a likelihood of succeeding on the merits of their constitutional claims and declined to issue an injunction against the law.

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

The decision brings positive news for the Biden administration and the staying power of its signature legislative gun-control achievement. It will allow the National Instant Criminal Background Check System (NICS) to continue conducting less-than-instant background checks, which can take several days to complete, for adults under 21. It also suggests gun-rights advocates could have a difficult time challenging various background check and waiting period measures moving forward.

Signed into law in June 2022, the BSCA became the first new federal gun control law in decades. While it consisted of a mixture of new restrictions and funding programs, one of its most substantive provisions overhauled how young adults can legally purchase firearms from licensed dealers.

Continue reading “”

Analysis: Where Will SCOTUS Come Down on ‘Ghost Guns’?

The Supreme Court is set to consider a challenge to the ATF’s unfinished frames and receivers rule, and there are some clues as to how they might rule.

On Monday, the Court agreed to take up Vanderstok v. Garland. The case centers on whether the ATF overstepped its authority by significantly expanding its interpretation of what constitutes a “firearm” under federal law. The outcome will determine the viability of selling unfinished parts, such as “80 percent” AR-15 lowers, without a federal gun dealing license. It will likely have a major impact on the homemade gun market that commonly uses those precursor parts.

The Court’s decision to grant cert is the result of a government appeal against the ruling of a three-judge panel on the Fifth Circuit Court of Appeals. The lower court sided with gun-rights plaintiffs and found the rule was likely “unlawful.”

Taking up a case that went in favor of the gun-rights litigants could be a sign that the Court wants to reverse that lower court decision. In fact, the Court’s tendency to take up cases where it wants to overturn the lower court is one of the main reasons to think it will go in favor of the NRA in the group’s First Amendment case. But that’s probably not what’s going on in this case.

Unlike challenges to state laws or state law enforcement, this case deals with the enforcement of federal law. The federal government requested the Court take it up. It requires the Court to settle an issue to avoid incongruity in how federal law is enforced nationwide.

If the Court didn’t take up this case, it would leave the ATF’s rule in place everywhere but the Fifth Circuit. SCOTUS prioritizes settling these sorts of questions, and it’s a reason to think that granting the case doesn’t say much about why it took it up beyond that.

What does say something about where the justices might come down is the record they’ve already established in this case.

The Supreme Court has already intervened here twice. Both times, it sided with the government. Both times, it blocked lower court injunctions against the ATF’s rule.

That might suggest that the justices will side with them on the merits, but that’s probably not the right read of what happened.

Continue reading “”

Federal Judge Says Pennsylvania is Violating 2A Rights of Young Adults

While you have to be 21 years old to obtain a concealed carry license in Pennsylvania, adults under the age of 21 still have the ability to open carry at least on paper. But for several years that’s been an impossibility thanks to a quirk in state law that bars open carry during a state of emergency. Believe it or not, Pennsylvania has operated continuously under various declared states of emergencies since 2018, so the only option for those who want to carry a firearm is to acquire a concealed carry license; an impossibility for 18-,19-, and 20-year-olds.

The Second Amendment Foundation and the Firearms Policy Coalition, along with several young adults, challenged the status quo in federal court, and won their case at the district court level. The state of Pennsylvania appealed to the Third Circuit seeking a re-hearing, but the appellate court turned away their request last month. Now U.S. District Judge William S. Stickman, a Trump appointee, has enjoined the challenged statutes from being enforced.

In his order, Stickman not only informed the state that it can no longer prosecute young adults for openly carrying, even during a declared state of emergency, but local jurisdictions must begin accepting and processing concealed carry applications from adults under the age of 21; a resounding win for the 2A groups and gun owners throughout the state.

“Judge Stickman’s injunction has conferred the same Second Amendment rights upon 18-20-year-olds that those over 21 have had,” said Adam Kraut, SAF’s Executive Director. “Now 18-20-year-olds in Pennsylvania may apply for License to Carry Firearms and the state’s draconian transportation laws have been enjoined from enforcement. This is a victory for Second Amendment rights in PA.”

This victory comes on the heels of a decision last month by the Third U.S. Circuit Court of Appeals to deny a petition by the state for a rehearing in the case. The court had ruled that young adults could carry firearms openly during states of emergency, and now Judge Stickman has expanded that to include their ability to apply for carry licenses.

“This is a major win for gun rights in the Keystone State,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’re encouraged the courts are finally looking at this issue in terms of the constitutional rights of young adults.”

Absolutely, and that goes for the Third Circuit too, not just Judge Stickman’s excellent decision in favor of the plaintiffs. I’ve actually been pleasantly surprised to see some of the decisions that have come out of the appellate court since Bruen. In addition to denying the state a rehearing in Lara v. Evanchik, the appeals court also ruled in Range v. Garland that Bryan Range should not have been permanently disqualified from possessing a firearm simply because he pled guilty to a crime punishable by more than a year in prison several decades ago.

The DOJ has appealed Range’s case to the Supreme Court, but it remains to be seen whether Pennsylvania AG Michelle Henry will ask the nine justices to overturn the edict Stickman issued today. It’s a stinker of an issue, given the lack of a national tradition preventing young adults from accessing their Second Amendment rights, and at this point, the gun control lobby may want to keep this case away from SCOTUS rather than risk a nationwide precedent allowing young adults in all 50 states to keep and bear arms.

We saw that same strategy deployed against the right to carry when Illinois’s ban was struck down by the Seventh Circuit in 2012. Instead of appealing to the Supreme Court, Illinois Democrats instead chose to craft a “shall issue” carry bill; not because they suddenly saw the light, but because anti-gun activists convinced them to take one for the team instead of giving the Court the opportunity to definitely state that we the people have the right to bear arms as well as keep them. It took a full decade for the Court to finally get ahold of a carry case, but in the 2022 Bruen decision gun control activists saw their worst fears confirmed when a 6-3 majority ruled New York’s “may issue” laws unconstitutional.

We’re now arguing over the scope of the right to carry, but the gun control groups still have a vested interest in stalling SCOTUS from hearing cases where the law in question is so clearly contrary to the “history, text, and tradition” test laid out in Bruen. I wouldn’t be surprised at all to see Henry quietly stop defending the under-21 carry ban, but sooner or later this issue will get to the High Court… and I’m confident that once again anti-gun activists are going to be bitterly disappointed by what the majority has to say.

Judge Cites Second Amendment While Dismissing Gun Charge Against Former School Superintendent

A former Kentucky school superintendent who was charged with possessing a firearm on public school property had his case thrown out by a judge this week, who said prosecutors hadn’t been able to show a national tradition of prohibiting firearms on all property owned by a school district.

John Gunn, the former school superintendent in McCreary County, had just resigned his position in February, 2023 when he went to the board of education office around 6 a.m. to gather his personal belongings from his office. Gunn was allegedly wearing a .45 caliber pistol when he showed up at the building, but he left because his access card had been deactivated and he couldn’t get inside. When he returned during normal business hours he no longer had his gun with him, but he was still arrested by a school resource officer when he tried once more to collect his things.

Gunn’s attorney, David S. Hoskins, argued that the law was an unconstitutional infringement on Gunn’s right to bear arms under the Second Amendment.

Hoskins cited a 2022 case in which the U.S. Supreme Court set out a new standard for deciding the legality of gun restrictions, commonly called the Bruen case.

The high court said that gun laws must be assessed on whether they are consistent with the nation’s historical tradition of firearm regulation.

Hoskins argued there was no historical analogue regarding regulating carrying guns on school property — as opposed to schools themselves — and as a result Kentucky’s prohibition on carrying guns as it was applied to Gunn was unconstitutional.

The prosecutor, Commonwealth’s Attorney Ronnie Bowling, argued in response that the Supreme Court decision would still allow barring possession of guns in sensitive places such as schools.

Gunn’s act of carrying a gun at the school-board office “is not a traditional, historical recognized right” at the time the Second Amendment was ratified, Bowling said.

Bowling got it backward. Unless he could show a longstanding, national tradition of treating school administrative offices as “sensitive places”, Gunn presumably had the right to have his firearm with him that morning, and Judge Dan Ballou cited the Supreme Court’s “history, text, and tradition” test in dismissing the felony charge against the former superintendent.

Ballou ruled the prosecution had not shown “that the Nation’s historical tradition of regulating the possession of firearms extends to an individual carrying a firearm on property not utilized as a school, during a time when neither students nor school employees were present, and with no other alleged criminal acts being committed, regardless of the ownership of the property at issue.”

Honestly, this case never should have been filed to begin with. There were never any allegations that Gunn intended to do harm to anyone in the building. In fact, he went to the board of education building early in the morning so he could collect his things and be gone before anyone else had shown up for work. This was simply about possessing a firearm, and I can’t help but wonder if there was any underlying animosity from the school board that led to his arrest, when the easiest thing would have been to drop the matter once he’d cleared out his office.

Hopefully the Commonwealth Attorney will take the loss and let this be the end of Gunn’s ordeal instead of appealing Ballou’s ruling and continuing on with the prosecution. The judge made the right call in dismissing the case on Second Amendment grounds, and the interests of the public aren’t going to be served by trying to turn Gunn into a felon for merely possessing a gun outside of the school board’s building early one morning.

NY Judge: The Second Amendment Doesn’t Exist Here

There’s been a case in New York that I should have been following more closely. Dexter Taylor was a hobby gunsmith. He liked the nature of putting together guns from lawfully purchased parts.

However, the state of New York disapproved of this pastime. They arrested Taylor and, on Monday, he was convicted.

My friend Jeff Charles over at our sister site RedState has been covering this case pretty much from the jump, and in his story from Monday about the sentencing, there was something we had to talk about.

You see, the judge in the case has decided that a certain right of interest to Bearing Arms readers doesn’t actually exist in her state.

From the beginning of Taylor’s trial, it was evident that the court would be biased against the defendant, according to [Taylor’s attorney, Vinoo] Varghese, who explained that two judges presided over his case before the current official, Judge Abena Darkeh, took over.

The judge disrupted Varghese’s opening statement multiple times as he tried to set the stage for Taylor’s defense. Even further, she admonished the defense to refrain from mentioning the Second Amendment during the trial. Varghese told RedState:

She told us, ‘Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.’

Varghese said he had filed the appropriate paperwork to “preserve these arguments for appeal” but that the judge “rejected these arguments, and she went out of her way to limit me.”

The Second Amendment doesn’t exist there? Excuse the hell out of me?

“This is New York?”

This just smacks of “the Aloha spirit” nonsense where some parties seem to think that the Constitution doesn’t actually apply because they really, really don’t like it.

Is the judge in this case, Judge Abena Darkeh, suggesting that the Second Amendment doesn’t apply anywhere she doesn’t approve? What other rights don’t exist in New York under Judge Darkeh’s paradigm? Do defendants not have the right to representation? Is free speech non-existent?

Oh, one might make the case that I’m being ridiculous, but I don’t think I am. Not based on Darkeh’s other actions.

Varghese also tries to take a jury nullification approach. Jury nullification basically means you convince the jury that while a crime might have occurred, the law in question is the real problem. It’s rare, but it’s still a thing. Judges aren’t supposed to encourage it, but they’re not supposed to stop it.

Yet Judge Darkeh did just that. She reportedly warned jurors in such a way as to suggest they could face consequences if they didn’t vote to convict.

So, basically, it feels like Taylor got railroaded and that Darkeh doesn’t actually think people have rights unless she, personally, approves of them.

Yet that’s not how rights work. They exist even if they’re inconvenient. They exist even if you don’t approve of how they’re used.

Varghese says he tried to preserve Darkeh’s comments for appeal and was stymied. However, her comments should still be on the record somewhere. If not, her attitude should be clear from the transcripts.

But either way, Darkeh makes it clear that at least some jurists in New York really don’t think the Second Amendment applies in either their courtroom or the state as a whole.

It’s time they’re disabused of that notion by higher courts.

SCOTUS Grants Cert in SAF VanDerStok Frames, Receivers ‘Finale Rule’ Case

The U.S. Supreme Court on Monday granted certiorari in the case of the “Finale Rule” on frames, receivers and parts kits announced by the Bureau of Alcohol, Tobacco, Firearms and Explosives in April 2022, and subsequently challenged by several entities including the Second Amendment Foundation.

The case is known as Garland v. VanDerStok. It has been described as a case about so-called “ghost guns” built without serial numbers, but the issue is far deeper. It is really about the ATF’s alleged violation of the Administrative Procedures Act (APA), and usurping the authority of Congress.

In a statement from SAF, Executive Director Adam Kraut hailed the announcement.

“We are delighted that the Court has agreed to hear our challenge to ATF’s frames and receivers Final Rule,” Kraut said. “ATF has continuously exceeded its constitutional authority and violated the separation of powers by creating law – a job reserved exclusively for Congress. It is time for the Supreme Court to remind ATF that it may not do so and affirm the judgment of the Fifth Circuit.”

SAF was joined in its intervenor complaint by Defense Distributed, a Texas-based firm. In their original complaint, they stated, “To comply with the Second Amendment,” the complaint alleged, “the promulgating agencies needed to jettison balancing tests and consider only whether their regulation is ‘consistent with this Nation’s historical tradition of firearm regulation.’ Yet because that did not happen—itself a key APA violation—it is no surprise that the new Final Rule tramples true historical traditions.”

The Associated Press is reporting that arguments in the case “won’t take place before fall.” That could push a ruling back to possibly June of 2025.

According to SCOTUS Blog, “A federal district judge in Texas invalidated the rule and entered a national injunction against it. By a 5-4 vote, the Supreme Court then stayed the order pending resolution of an appeal to the U.S. Court of Appeals for the 5th Circuit and any cert. petition; Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted to deny the stay.”

For more than a half-century, since passage of the Gun Control Act of 1968, the ATF did not consider parts kits or unfinished frames and/or receivers to be firearms. But that changed 15 months into the Biden administration.

“This case typifies the Biden administration’s war on the Second Amendment,” said SAF founder and Executive Vice President Alan Gottlieb. “Clearly under Joe Biden, the ATF has unilaterally set itself up as the sole authority on firearms regulation, bypassing Congress and arbitrarily changing long-standing regulations to suit the administration’s anti-gun agenda.”

As noted by NBC News, after the high court granted the stay while the trial moved forward, the 5th U.S. Circuit Court of Appeals “mostly ruled for the challengers.”

“Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will,” the Circuit Court ruled.

The Biden administration does not want to lose this case, which is not actually a Second Amendment case, but has considerable bearing on how far the government can go to regulate firearms without violating the right to keep and bear arms.

South Carolina Man Planning Suit Against ATF Over Wrongful Arrest

Imagine showing up for work one morning and finding multiple law enforcement agents waiting to put you in handcuffs for a crime you didn’t commit. That’s what happened to Bryan Wilson last December, when a drug task force comprised of officers from West Columbia, South Carolina and the ATF took him into custody in front of his co-workers and employer after accusing him of trafficking guns and drugs.

Wilson protested his innocence to everyone from the cops who arrested him to the judge who formally charged him, but those pleas fell on deaf ears until a federal public defender was assigned to represent him started to dig into his story and realized that Wilson was telling the truth.

It turned out there was one person in the courtroom who believed him — Jenny Smith, his court-appointed federal public defender — and over several hours, she convinced a federal prosecutor to double check the arrest and see if the Bureau of Alcohol, Tobacco, Firearms and Explosives didn’t, after all, have the wrong man.

After more investigation that day, the feds realized they had blown it. They made a motion to drop all charges against Wilson. Federal prosecutors apologized. U.S. Attorney Adair Boroughs apologized.

Federal Judge Joe Anderson quickly granted a motion to dismiss the charges “with prejudice,” meaning they cannot be brought again.

No one has ever explained how the mixup happened. It apparently was not a case of mistaken identity.

We can add this to the ever-growing list of topics that ATF Director Steve Dettelbach should be grilled on the next time he makes an appearance on Capitol Hill. As the lawsuit details, while Wilson is a gun owner, he’s never dealt drugs or trafficked firearms, despite what police testified during his initial court appearance.

At that hearing, a law officer “falsely told the judge that ATF had been watching Mr. Wilson for 13 months and then listed dates the ATF falsely claimed he sold drugs. The agent also falsely told the judge that the Government had Mr. Wilson on tape committing these crimes,” the lawsuit said.

After the hearing, Wilson continued to tell his lawyer there had been a mistake. The lawyer pressed the issue with federal prosecutors and after several hours, the mistake was acknowledged.

Wilson was freed.

But Wilson has suffered since the events of that day, the lawsuit said.

He has begun having migraines. Rumors have been spread about him among his co-workers. He gets messages on Facebook. Some rumors say he “rolled” on other defendants and worse, the lawsuit said.

“He has stopped going to the gym or doing fight training — his fitness passion. He worries about his teenage daughter learning what happened to him. He also worries for his parents, specifically his mother who continues to feel paranoia and anxiety stemming from the incident and now calls her son while he is at work to check on his well-being,” the lawsuit said.

Wilson hasn’t officially filed suit against the ATF yet, but Christopher Kenney, who’s now serving as Wilson’s attorney, says that’s likely going to come once he’s waited the required six months before he can challenge the agency’s actions under the Federal Tort Claims Act. The ATF should be served with Wilson’s lawsuit at some point in June, and it will probably be July before the DOJ files its response, which might tell us something about how the agency managed to screw up so badly.

Kenney said one of the purposes of the lawsuit is to find out exactly how this happened. Ordinarily, law officials in the federal system take great care in identifying the proper people whose names they bring before a federal grand jury. Prosecutors who work with front line law enforcement officers can ask about the suspects.

“Bryan is misidentified from the very first incident,” Kenney said. “One of the reasons to bring this case is to figure out what happened.”

If Wilson was “misidentified”, as Kenney believes, then who was the ATF surveilling for more than a year? How did Wilson show up on the ATF’s radar when it came time to issue an arrest warrant if he wasn’t the actual subject of the investigation? And what happened to the person the ATF was supposed to arrest if Wilson wasn’t their man? Was the actual suspect ever correctly identified and taken into custody after the snafu with an innocent man?

I’m glad that Wilson isn’t going to let this go with just an apology from the U.S. Attorney’s office, but I’d love to see Congress take an interest in this wrongful arrest as well. Bryan Wilson deserves answers, and with Biden’s DOJ going to bat for the agency the House Oversight Committee needs to Dettelbach to account for the inexplicable failure that happened under his watch.

San Diego federal lawsuit challenges law banning most non-California residents from carrying guns

A firearms advocacy group and three people who live in Pennsylvania, Idaho and New Mexico filed a lawsuit Thursday in San Diego federal court challenging a state law that mostly bans non-California residents from carrying guns in the state.

The lawsuit alleges that the regulation violates the Second Amendment and 14th Amendment and should be overturned. It claims the law is “unconstitutionally restrictive” and bars the plaintiffs from carrying guns in California even though each have been issued concealed-carry permits in their home states.

“Individuals like Plaintiffs do not lose protection of their rights under the First Amendment’s speech or religion clauses when they cross state lines. Nor do they lose their protections under the Fourth Amendment’s prohibition on unreasonable searches and seizures,” the lawsuit alleges. “They likewise do not surrender their Second Amendment protected rights when they travel outside their home state.”

The office of state Attorney General Rob Bonta, who is the named defendant in the case, did not respond to a request for comment. Bonta’s office has vigorously defended the state’s challenged gun laws and other weapons laws in the past.
The lawsuit alleges that the three plaintiffs live out of state and wish to carry firearms when they visit California but are legally barred from doing so. The suit claims that the main exception to the law — for certain people who live out of state but operate a business in California and spend significant time at the business — is so narrow that it’s irrelevant.

Included among the plaintiffs is Christopher Hoffman, a Pittsburgh resident who lived in San Diego County between 1990 and 2012. According to the lawsuit, the San Diego County Sheriff’s Department previously issued Hoffman a concealed-carry weapon, or CCW, license on multiple occasions when he resided in the county.

“Hoffman … frequently returns to San Diego County to visit family and friends,” the lawsuit states. “Hoffman desires to carry a firearm in public for self-defense while he visits California and would do so if California law permitted him to.”

Continue reading “”

Oregon Court of Appeals denies motion on gun control law

PORTLAND, Ore. (KOIN) — The Oregon Court of Appeals on Friday has declined a motion by the state to put a hold on a Harney County judge’s ruling, which found Measure 114, Oregon’s gun control law, unconstitutional.

The measure, which was narrowly passed by voters in 2022, requires people to undergo a background check and gun safety courses for a gun permit and bans magazines carrying over 10 rounds. The law has been unable to go into effect amid various federal and state legal challenges.

Bob Day permanently named Portland police chief by Mayor Wheeler
For one, in November, Harney County Judge Robert Raschio struck down the law after he found the permit-to-purchase scheme under Measure 114 is unconstitutional based on the law’s 30-day-minimum delay to buy a firearm, the measure’s use of language from concealed handgun statutes, and because the Federal Bureau of Investigation refuses to conduct criminal background checks.

The state then appealed the ruling in early February.

In a statement, Oregon Attorney General Ellen Rosenblum said, “Research indicates that mass shootings and gun violence have decreased in other states after adopting permit requirements and magazine restrictions. We are making a very reasonable request: Let Measure 114 take effect now so Oregonians’ lives can be saved—now!”

Lewis & Clark College faces class action lawsuit over 2023 data breach
Plaintiffs in the Harney County suit include Joseph Arnold, Cliff Asmussen, Gun Owners of America, Inc. and the Gun Owners Foundation, who argue the law violates the right to bear arms under the state constitution. They further argued the magazine limit prohibits self-defense.

This current ruling by the appeals court means the measure will not go into effect until the court makes a final decision.

Second Amendment Roundup: A Double Shot of Oral Arguments.

“Large-capacity” magazines and semiautomatic rifles are “bearable arms” in common use, no different from the handguns in Heller, but will two en banc courts agree?

 | 

Once it decided N.Y. State Rifle & Pistol Ass’n v. Bruen (2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of Bruen. One was a challenge to California’s ban on magazines holding over ten rounds, and another was Maryland’s “assault weapon” ban.  With sparks aplenty flying, these cases were argued en banc on March 19 and 20 before the Ninth and Fourth Circuits respectively.

These cases should be decided in favor of a straightforward application of the constitutional test for addressing challenges to “arms ban” laws set forth in District of Columbia v. Heller.

Bruen simply made more explicit the “plain text first, and then historical analogue laws second” methodology adopted by Heller when it declared that the District of Columbia’s handgun ban violated the Second Amendment. Applying that methodology, Heller held that arms that are in common use by Americans for lawful purposes cannot be banned.

First, as a matter of plain text, Heller held that the Second Amendment extends, “prima facie, to all instruments that constitute bearable arms.” And Heller made clear that “arms” includes all “weapons.” If the instruments in question are bearable arms, the burden shifts to the government to provide a sufficient number of representative historical analogue laws (not the musings of anti-gun historians) from our early history to demonstrate that the challenged arms ban falls within the country’s tradition of firearms regulation.  In fact, the American tradition of firearms regulation is really a history of no or very limited prohibition of arms.

Second, Heller looked at two historical traditions that spoke to the arms ban question. At the outset, the Heller Court acknowledged the history of Americans bringing their own privately-owned firearms and ammunition with them to militia musters. These protected weapons were “in common use at the time” for lawful purposes such as self-defense. The Court further found that the “in common use” test was “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”

Putting these two historical practices together, the Court held that arms that are “in common use,” and therefore not “dangerous and unusual,” cannot be banned. In other words, Heller already conducted the historical analysis for arms ban cases, and it concluded that once an arm is found to be “in common use” – and therefore by definition not “dangerous and unusual” – there is no more work to be done. That arm cannot be banned, period.

Because millions and millions of law-abiding Americans possess both the magazines banned by California and the rifles banned by Maryland, those bans are unconstitutional under a straightforward reading of Heller.

Unfortunately, the en banc Fourth and Ninth Circuits appear to be poised to defy Heller and hold that the California and Maryland laws are constitutional.

Continue reading “”

3rd Circuit Denies Rehearing In SAF Pennsylvania Gun Rights Victory.

The Third U.S. Circuit Court of Appeals denied a petition for a rehearing in the Second Amendment Foundation’s victory in a case challenging Pennsylvania statutes that prohibit law-abiding young adults from carrying firearms for self-defense and prevents them from acquiring a state license to carry (LTCF) because of their age. The case is known as Lara v. Evanchick.

The petition for an en banc rehearing had been filed by attorneys representing the Commissioner of the Pennsylvania State Police. SAF is joined in the case by the Firearms Policy Coalition and three private citizens, including Madison M. Lara, for whom the case is named. They are represented by attorneys David H. Thompson, Peter A. Patterson and John D. Ohlendorf at Cooper & Kirk, Washington, D.C.

Writing for the majority, Circuit Judge Kent A. Jordan explained, “The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is DENIED.”

“We’re satisfied with the court’s decision,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It’s an important win. The Third Circuit has affirmed that the Second Amendment applies to young adults, and that 1791 is the historical marker for understanding the right to keep and bear arms. Finally, the court has said 18-to-20-year-olds can open carry during a state of emergency in Pennsylvania.”

“We’ve been fighting this battle for more than three years,” noted SAF Executive Director Adam Kraut, who is a Pennsylvania resident and practicing attorney in the state. “The court’s decision is an important step forward to getting this issue resolved.”

Ruling: Millions of NRA Members Exempt From Pistol Brace Ban

The ATF can’t go after NRA members over guns with pistol braces on them.

That’s the outcome of a preliminary injunction issued by a federal judge on Friday. US District Judge Sam A. Lindsay sided with the gun-rights group and enjoined the federal agency from enforcing its rule reclassifying pistol-brace-equipped guns as short barrel rifles (SBRs) under the 1934 National Firearms Act (NFA). The decision keeps any NRA member who owns a braced gun from facing six-figure fines or imprisonment if they didn’t register their gun by last year’s deadline–something most owners didn’t do.

“[C]ompliance with the Final Rule is not discretionary, and the NRA’s members face severe penalties for their failure to comply with the Final Rule,” Judge Lindsay wrote in NRA v. ATF. “Accordingly, both of the final requirements for injunctive relief are satisfied because the threatened injury to the NRA’s members outweighs the threatened harm to the Defendants, and enforcement of the Final Rule under the circumstances will not disserve the public interest.”

The ruling is a concrete, if temporary, win for the NRA. While the group has lost millions of members due to an ongoing corruption scandal, and it’s unclear exactly how many remain, those who’ve stuck with the group will now enjoy protection from the long arm of the ATF. The decision puts NRA members under the same legal umbrella employed for members of the Second Amendment Foundation, Firearms Policy Coalition, and Gun Owners of America through previous rulings.

Continue reading “”