Category: Courts

Federal Court Rules Maryland Parents Can’t Opt Kids Out Of Classes With LGBT Content.

The Fourth U.S. Circuit Court of Appeals has ruled 2-1 against Maryland parents who sued their local school board for not letting their children in grades K-5 opt out of reading books supporting transgender ideology and gender transitioning.

The Montgomery County Public Schools board denied the parents their request to be notified when the books would be read to their children and the opportunity to opt out.

“The Board is violating the parents’ inalienable and constitutionally protected right to control the religious upbringing of their children, especially on sensitive issues concerning family life and human sexuality,” The Becket Fund for Religious Liberty, litigated the lawsuit, stated, explaining:

In fall 2022, the Montgomery County Board of Education announced over 20 new “inclusivity” books for its pre-K through eighth grade classrooms. But rather than focusing on basic civility and kindness, these books champion pride parades, gender transitioning, and pronoun preferences for children.

For example, one book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “[drag] queen,” “underwear,” “leather,” and the name of a celebrated LGBTQ activist and sex worker. Another encourages fifth graders to discuss what it means to be “non-binary.” Other books advocate a child-knows-best approach to gender transitioning, telling students that a decision to transition doesn’t have to “make sense” and that doctors only “guess” when identifying a newborn’s sex anyway.

A district court ruled against the parents, prompting them to appeal to the 4th US Circuit Court of Appeals, which denied the parents’ request for a preliminary injunction but allowed the possibility of changing its position once the classes have already been taught, writing:

We take no view on whether the Parents will be able to present evidence sufficient to support any of their various theories once they have the opportunity to develop a record as to the circumstances surrounding the Board’s decision and how the challenged texts are actually being used in schools.

At this early stage, however, given the Parents’ broad claims, the very high burden required to obtain a preliminary injunction, and the scant record before us, we are constrained to affirm the district court’s order denying a preliminary injunction.

Judge Marvin Quattlebaum dissented, writing, “I disagree with the majority’s conclusion that the parents have not produced enough evidence to establish that their free exercised rights have been burdened. The parents have met their burden. They have produced the books that no one disputes will be used to instruct their K-5 children. They produced declarations explaining in detail why the books conflict with their religious beliefs. They have produced the board’s own internal documents that show how it suggests teachers respond to students and parents who question the contents of the books.”

A Big Week for SCOTUS and the Second Amendment

On Thursday, the Supreme Court is set to consider whether to accept challenges to “assault weapons” bans in Illinois and Maryland at this week’s conference. But that’s not the only 2A issue coming before the justices this week. A case called Srour v. NYC is also scheduled for consideration in conference this week. That lawsuit is taking on New York City’s “good moral character” standard for residents trying to exercise their right to keep a rifle or shotgun in their home; a statute found unconstitutional by a district court judge, but allowed to remain in effect thanks to an inexplicable decision by the Second Circuit Court of Appeals.

Attorney Amy Bellantoni first asked SCOTUS to intervene on behalf of her client back in March, but her request for an emergency application to vacate the Second Circuit’s stay was summarily rejected by Justice Sonia Sotomayor on April 4th. The following week, Bellantoni resubmitted her request to Justice Clarence Thomas. Instead of accepting or rejecting the request, Thomas has submitted the question to the full Court.

In her initial request, Bellantoni notes that the district court judge who found New York’s “good moral character” and “good cause to deny” clauses unconstitutional did so after the state failed to come up with a single historical analogue that could justify the broad and vague powers granted to the licensing authorities.

The district court went on to analogizing Respondents’ ‘moral character’requirement to the ‘proper cause’ factor for a concealed carry handgun license thatwas stricken by this Court in Bruen. Both statutes require individuals to “prove”something to a government official before being able to exercise a protected right.

Harkening to Bruen’s discussion contrasting outlier “may issue” regimes likeNew York’s, “under which authorities have discretion to deny concealed-carrylicenses even when the applicant satisfies the statutory criteria,” with “shall issue”regimes, “where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability,” the district court correctly observed that Respondents’ regulations “land very close to the problematic “may issue” laws criticized in Bruen.”

… The district court concluded that 10-303(a)(2) and (a)(9) “suffer from the verysame constitutional flaws under Bruen.” Observing that Section 10-303 fails to define “good moral character” in further detail, the court held that “without doubt, the very notions of “good moral character” and “good cause” are inherently exceedingly broad and discretionary. Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another. Such unfettered discretion is hard, if not impossible, to reconcile with Bruen.”

The district court then turned to whether Respondents met their burden under the Bruen test, but found they failed to produce any historical analogue for investing officials with the broad discretion to restrict an individual’s Second Amendment rights based on a lack of moral character.

Respondents offered examples of criminal laws, loyalty oath requirements, and surety statutes — laws preventing “dangerous or potentially dangerous” people from possessing firearms, which the district court found are “hardly analogous to denying someone their Second Amendment’s rights based on a City official’s discretionary determination that that person “lacks good moral character”…The latter is far broader and sweeps in significantly more conduct.”

When New York City officials appealed the judge’s order to the Second Circuit, they quickly got the relief they were asking. A three-judge panel stayed the lower court decision and allowed the NYPD to continue to use “good moral character” (or the lack thereof) as a reason to approve or deny permits, pointing to a similar preliminary ruling regarding pistol licenses that are being challenged as part of Antonyuk and other lawsuits taking on the state’s Concealed Carry Improvement Act. But Bellantoni argues that the Second Circuit provided no real analysis before reaching its decision. If it had, Bellantoni believes the panel would have had no real choice but to uphold the district court’s finding.

Had “due consideration” been given, the Second Circuit would have realized that Antonyuk (i) is not binding on the appeal, as it involved review of a preliminary injunction, not a merits-based determination; (ii) its ‘moral character’ analysis is confined to handgun licensing (plaintiffs challenged the “Concealed Carry Improvement Act”); (iii) New York State’s moral character statute for handguns is markedly narrower than NYC Admin.

Code 10-303(a)(2) (still, any amount of discretion conflicts with the plain text); and (iv) contains no analysis of this Nation’s historical traditions of regulating rifles and shotguns, which is decidedly sparse. To be sure, when it comes to long guns, even the New York State Legislature acknowledged in 1965 that there was no ‘National tradition’ of licensing rifles and shotguns, never mind disarming the entire citizenry until a government official feels they possess “good moral character.”

We have no way of knowing which, if any, of the Second Amendment cases that are pending in conference will be granted cert by the Supreme Court, but there’s a strong argument to be made in favor of accepting all three of the legal challenges that will be discussed behind closed doors this week.

The Srour case may be the most limited in terms of impact, given that NYC is an outlier when it comes to its gun licensing laws, but there are still millions of New York City residents who are being subjected to the arbitrary and capricious whims of the NYPD Licensing Bureau before they can exercise a fundamental civil right. All three cases are worthy of the Court’s attention, and the longer the justices delay in hearing them, the worse these deprivations of liberty become.

Judge Fast-Tracks Review of ATF’s Universal Background Check Rule Amid Legal Challenge by GOA, Texas

A federal judge has expedited the legal proceedings against a new rule by the ATF that mandates universal background checks on private firearm sales. U.S. District Court Judge Matthew J. Kacsmaryk’s decision on Friday sets the stage for a rapid review of the contentious rule, which has faced strong opposition from gun rights advocates and several states.

The rule, slated to be enforced starting May 20, 2024, would significantly expand the scope of background checks, requiring them even in private transactions that have traditionally been exempt. This includes sales by individuals not classified as being “engaged in the business” of selling firearms. According to reporting by Breitbart News, this change blurs the lines between private sellers and licensed dealers, potentially impacting millions of gun owners across the country who wish to buy or sell a firearm to or from a private seller.

Gun Owners of America (GOA), the Gun Owners Foundation and the State of Texas, along with other states (Louisiana, Mississippi and Utah) and advocacy groups (including the Tennessee Firearms Association and the Virginia Citizens Defense League), have filed a lawsuit arguing that the rule not only exceeds the regulatory powers of the ATF but also infringes on constitutional rights. The plaintiffs claim the rule would unfairly classify ordinary citizens who sell firearms as dealers, subjecting them to rigorous licensing and background checks.

Judge Kacsmaryk has ordered the ATF to respond to the motion for preliminary relief by 5 p.m. tomorrow, May 14, 2024, with the plaintiffs’ reply due by the following day by 5 p.m. as well.

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Tennessee Appeals Court Rules Against Wildlife Agents Who Planted Cameras on Private Land
The three-judge panel concluded unanimously that while the state law at issue is constitutional, the wildlife agents’ application of it was not.

In December 2022, Reason reported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners’ favor.

At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to “go upon any property, outside of buildings, posted or otherwise,” in order to “enforce all laws relating to wildlife.” In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring “No Trespassing” signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.

Under the “open-fields doctrine,” Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone’s property lacks the same rigorous Fourth Amendment protections as their home and the “curtilage,” the area immediately surrounding the home.

In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners’ favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an “intolerable risk” of abuse and was “facially unconstitutional,” but it stopped short of issuing an injunction. The state appealed the decision the following month.

In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. “It allows TWRA officers to enter and roam around private land, fishing for evidence of crime,” Windham said. “It doesn’t require consent. It doesn’t require warrants. It doesn’t require probable cause….It’s a blank check for officers to invade private land whenever and however they please.”

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Sometimes, you wonder if corrupt crap like this isn’t done on purpose, simply to test the opposition’s mental acuity.

Judge Aileen Cannon is a Heroine
She is scheduled on June 21st to hear oral argument on whether special counsel Jack Smith was unconstitutionally appointed

The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump’s trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.

Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump’s motion to dismiss Special Counsel Jack Smith’s indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.

The Appointment Clause of Article II, Section 2 provides that: “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.

We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney’s Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith’s appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers

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Supreme Court rules in favor of veteran who sued over GI Bill limits

The Supreme Court on Tuesday ruled in favor of a veteran who unsuccessfully tried to use both his Post-9/11 GI Bill and Montgomery GI Bill benefits, saying that Veterans Affairs officials erred in limiting his education support.

The 7-2 decision could have far-reaching impact on student veterans who use up their VA benefits but still wish to continue degree programs. Lawyers for the plaintiff have estimated as many as 1.7 million veterans nationwide could benefit from the ruling, but federal officials have estimated the number to be less than 30,000 individuals.

The case has been closely watched by veterans advocates for nearly nine years because of its potential ramifications. VA pays out more than $8 billion in education payments annually, and the Supreme Court ruling could boost that figure even higher.

The legal fight centered on Jim Rudisill, a 43-year-old Army veteran who was wounded in a roadside bomb attack in Iraq in 2005. Rudisill used all of his Post-9/11 GI Bill benefits shortly thereafter, but later wanted to tap into his unused Montgomery GI Bill benefits to attend Yale Divinity School as part of the process to become an Army chaplain.

When VA officials denied that move, Rudisill sued, claiming they were unfairly limiting his options. Writing for the majority, Justice Ketanji Brown Jackson called the government’s denial “nonsensical” and reversed lower court rulings supporting VA’s position.

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Ninth Circuit Panel Rules Non-Violent Felons Can Own Guns

Another federal appeals court has determined the Second Amendment protects the gun rights of at least some convicted felons.

On Thursday, a three-judge panel from the Ninth Circuit Court of Appeals sided with defendant Steven Duarte and vacated his conviction. They found the federal ban on felons possessing firearms was unconstitutional as applied to Duarte because his underlying convictions didn’t involve violent crimes.

“Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects,” Judge Carlos Bea wrote for a 2-1 court in US v. Duarte. “The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history.”

The ruling deepens the federal circuit split over the constitutionality of the law that bars anyone convicted of a crime punishable by more than two years in prison from ever owning or handling firearms again. Felon-in-possession charges are the most common federal gun prosecutions in the nation. Continued disagreement over the constitutionality of the law underlying those charges may motivate the Supreme Court to address the issue itself directly, especially the question of whether people who aren’t violent present enough of a dangerous threat to be worthy of a lifetime gun ban.

The history and tradition test the Court set in 2022’s New York State Rifle and Pistol Association v. Bruen has opened up new challenges to all kinds of gun laws, and the Court has yet to hand down another Second Amendment ruling, though the case its current considering is likely to delve into the dangerousness question.

The Department of Justice, which defended the federal law, did not respond to a request for comment. However, it already requested that the Supreme Court review Garland v. Range, the other case in which a federal appeals court found the gun ban unconstitutional as applied to non-violent felons.

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Anti-Gunners’ Lawsuit Against Smith & Wesson Dismissed

A lawsuit brought against Smith & Wesson by anti-gun shareholders within the company was dismissed Monday in Nevada’s Clark County District Court.

On December 5, 2023, Breitbart News noted that shareholders disgruntled over Smith & Wesson’s continued manufacture of AR-15 platform rifles had filed the lawsuit.

Plaintiffs in the case included the Adrian Dominican Sisters, Sisters of Bon Secours USA, Sisters of St. Francis of Philadelphia, and Sisters of the Holy Names of Jesus & Mary. Their suit claims that the defendants, who are Smith & Wesson board members and the company’s senior management team, “knowingly allowed the Company to become exposed to significant liability for intentionally violating federal, state, and local laws through its manufacturing, marketing, and sales of AR-15 style rifles and similar semiautomatic firearms.”

The plaintiffs acknowledged the lawsuit protection provided to firearm companies via the Protection of Lawful Commerce in Arms Act (PLCAA). However, they claimed Smith & Wesson had foregone such protections by continuing to manufacture AR-15s after a Smith & Wesson AR-15 was used in a mass shooting.

On March 13, 2024, Breitbart News reported that Nevada’s Clark County District Court signaled no “substantial likelihood” Smith & Wesson would be found liable, saying the activist shareholders appear not to be aligned with the company’s best interest and requiring them to post a half-million-dollar bond to continue their suit.

The plaintiffs were instructed to post the bond by April 23, 2024, but they did not.

On May 6, 2024, Judge Joe Hardy pointed to their failure to post the bond as ordered and dismissed the lawsuit against Smith & Wesson.

The suit is Adrian Dominican Sisters v. Smith & Wesson Brands, Inc., No. A-23-882774-B in the District Court of Clark County, Nevada.

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.

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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.

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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.

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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.

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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.