Category: Courts

Observation O’ The Day
“If you’re deferring to the agency’s interpretation of the law, you’re allowing the agency to be a judge in its own case,” said Mark Chenoweth, president of the New Civil Liberties Alliance, which is representing fishermen based in Rhode Island.

A little fish at the Supreme Court could take a big bite out of regulatory power.

WASHINGTON (AP) — Business and conservative interest groups that want to limit the power of federal regulators think they have a winner in the Atlantic herring and the boats that sweep the modest fish into their holds by the millions.

In a Supreme Court term increasingly dominated by cases related to former President Donald Trump, the justices are about to take up lower profile but vitally important cases that could rein in a wide range of government regulations affecting the environment, workplace standards, consumer protections and public health.

In cases being argued Wednesday, lawyers for the fishermen are asking the court to overturn a 40-year-old decision that is among the most frequently cited high court cases in support of regulatory power. Lower courts used the decision to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for monitors who track their fish intake. A group of commercial fishermen appealed the decision to the Supreme Court.

Billions of dollars are potentially at stake in front of a court that, like the rest of the federal judiciary, was remade during Trump’s presidency by conservative interests that were motivated as much by weakening the regulatory state as social issues including abortion.

The 1984 decision in the case known colloquially as Chevron states that when laws aren’t crystal clear federal agencies should be allowed to fill in the details.

Supporters of limited government have for years had their sights set on the decision, which they say gives power that should be wielded by judges to experts who work for the government.

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Increasing Defendant’s Sentence Based on Lawful Gun Possession Is Forbidden

From Nelson v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Jordan Pratt, joined by Judges Eric Eisnaugle and John Harris:

This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. We conclude that it may not. Courts deprive defendants of due process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right….

Defendant had been convicted of selling marijuana and related charges. Then,

At the sentencing hearing, the court entertained argument from both Nelson and the State, with Nelson urging the court to impose 36 months, and the State urging the court to impose 87.23 months. During its argument, the State presented two photos of firearms found in Nelson’s home, noting that “a possible murder a couple of months ago that was probably related to the sale of cannabis” had occurred in Citrus County. However, the State did not argue that Nelson himself was in any way connected to the murder, and it conceded that it did not bring any firearm-related charges against him.

After hearing a brief rebuttal argument from Nelson’s counsel, the court announced his sentence. The court applied the discretionary trafficking enhancement and sentenced Nelson to 87.23 months of incarceration on counts 1 and 2 (to run concurrently).

Immediately after pronouncing this sentence, the court stated: “And what hurts you the most, Mr. Nelson, was … the photographs of the guns. They did not charge with those. I did not take that into account; but why you did this, I do not know.” The court then imposed three-year sentences on the remaining felony counts, with the sentences to run concurrently with the concurrent 87.23-month sentences….

Impermissible, the court said:

Trial courts generally enjoy wide discretion in sentencing convicted defendants within the range of sentences established by the Legislature. However, “an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.”

Reliance on constitutionally impermissible factors deprives a defendant of due process and therefore constitutes fundamental error. As relevant here, “[a] trial court’s consideration of unsubstantiated allegations of misconduct in sentencing constitutes a due process violation.”

In short, just as “[d]ue process prohibits an individual from being convicted of an uncharged crime,” it also prohibits him from being sentenced for one based on “unsubstantiated allegations.” [The court cites various Florida state precedents throughout this paragraph. -EV]

This basic principle of due process carries no less force when the uncharged conduct is the lawful exercise of a constitutional right. Both the Florida and federal constitutions guarantee the fundamental, preexisting right to keep and bear arms….

At sentencing, the State presented no evidence to establish that Nelson’s possession of firearms within his home contravened the law. The State did not claim that any law prohibited Nelson from possessing firearms at the time of his arrest, much less point to such a law that would pass muster under the Second Amendment. Nor did it charge him with any firearm-related offense.

The State introduced no evidence establishing that Nelson possessed his firearms within the home to further his illicit activities or for any other unlawful purpose. Indeed, at sentencing, the State affirmatively conceded that it had not charged Nelson with armed trafficking, as the firearms were not found near the cannabis. Moreover, Nelson had no prior convictions.

In short, not only did the State decline to charge Nelson with a firearm-related offense; the State failed to argue, much less establish by evidence, that his firearm possession constituted anything other than the lawful exercise of his constitutional right to keep and bear arms “in defense of hearth and home.” …

The court’s statements indicate that it may have relied upon Nelson’s lawful firearm possession in imposing his sentence, and the State has failed to carry its burden to show otherwise. By declaring that “the photographs of the guns” were “[w]hat hurts [Nelson] most,” the court suggested that it weighed Nelson’s lawful firearm possession against him.

At best, the State [in arguing that the court didn’t consider the lawful firearms possession] has shown that the court made two contradictory statements: one that it took the firearm possession into account, and one that it did not. That showing does not suffice. “[W]e cannot ignore the nature and extent of the trial court’s discussion of irrelevant and impermissible factors during the sentencing hearing.”

“Because the court’s comments could reasonably be construed as basing the sentence, at least in part, [on impermissible factors], and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of [that factor],” we must “vacate appellant’s sentence and remand for resentencing before a different judge.”

If due process prohibits a trial court from relying on “uncharged and unproven crimes” when pronouncing a sentence, then, a fortiori, it prohibits a trial court from relying on the lawful exercise of a constitutional right. The State has failed to carry its burden to show that the sentencing court did not rely, at least in part, on Nelson’s lawful exercise of his constitutional right to keep and bear arms.

Accordingly, we vacate Nelson’s sentences, remand these cases for resentencing, and direct the Chief Judge of the Circuit Court to reassign the cases to a different judge for the resentencing.

Victoria E. Hatfield O’Brien Hatfield Reese, P.A.) represents Nelson.

Bruen Strikes Again: Ban on Guns in Post Offices Tossed Out, Ruled Unconstitutional

Thanks to a decision by a federal judge in Florida on Friday, American citizens who are legally carrying concealed sidearms can no longer be barred from carrying inside a United States Post Office — buildings that are a quasi-part of the federal government and, in effect, the property of the American people.

 A federal judge in Florida on Friday ruled that a U.S. law that bars people from possessing firearms in post offices is unconstitutional, citing a landmark U.S. Supreme Court ruling from 2022 that expanded gun rights.

U.S. District Judge Kathryn Kimball Mizelle, an appointee of Republican former President Donald Trump in Tampa, reached that conclusion in dismissing part of an indictment charging a postal worker with illegally possessing a gun in a federal facility.

If there is anywhere, honestly, that the Bill of Rights applies, it should be in federal buildings and federal installations. Oh, there’s an argument to be made for barring carry in the Capitol, the White House, in courthouses, and so on – but those are places that are already secured by armed law enforcement (when they aren’t throwing the doors open for “insurrectionists.”) The post offices, not so much. Most post office buildings are pretty small, often crowded, and until now, “gun-free” zones. In other words, target-rich environments for would-be mass shooters.

This ruling is another victory for pro-Second Amendment activists, and once more, we have NY State Rifle & Pistol Association v. Bruen to thank for it.

Mizelle said that charge violated Emmanuel Ayala’s right to keep and bear arms under the U.S. Constitution’s Second Amendment, saying “a blanket restriction on firearms possession in post offices is incongruent with the American tradition of firearms regulation.”

She declined to dismiss a separate charge for forcibly resisting arrest. Ayala’s lawyer and a U.S. Justice Department spokesperson did not respond to requests for comment.

The decision marked the latest court decision declaring a gun restriction unconstitutional following the conservative-majority Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

Things in the last year or two sure seem to be swinging in favor of the Second Amendment, although the pro-gun community should not take any time to rest on its laurels.

Now that this ruling is in place – assuming it goes nationwide and survives any possible appeal to the Supreme Court – it would be interesting to see it as a precedential springboard into other federal facilities, such as (especially) military bases. Military bases in particular should be removed from the federal “gun-free zone” list; military members are in the profession of arms, and they are charged with enormous responsibility. It’s common to have an 18-year-old soldier, when on duty, handling and firing a weapon as formidable as a .50 caliber machine gun, and yet is prohibited from possessing a personal firearm on base. That makes little sense; in light of several publicized incidents on military bases in recent years, it would make more sense to have every officer and non-commissioned officer issued a sidearm to be carried loaded at all times when in uniform.

Post offices, granted, are a different kettle of fish. But now, at least, this decision recognizes that the Second Amendment rights of the citizenry are not negated by some bureaucrat mandating that every such building be a free-fire zone for would-be mass shooters. Self-defense is a fundamental human right, and now that right has been confirmed yet again.

SCOTUS denies one appeal of assault weapons ban while another waits in the wings

SPRINGFIELD – The U.S. Supreme Court has denied one request to review the Illinois assault weapon ban, but many believe the court is more likely to take up another challenge to the law later this year.

The high court turned down a request by Republican State Rep. Dan Caulkins, of Decatur, to hear an appeal of the case he lost before the Illinois Supreme Court in August.

In his appeal, Caulkins argued that he was denied a fair hearing at the state supreme court because two of the state justices had received large campaign contributions from Democratic Gov. JB Pritzker, who signed the assault weapon ban into law.

Caulkins also claimed the law is unconstitutional because it allows some people to keep their assault weapons if they acquired those guns before the ban took effect.

The justices at the U.S. Supreme Court gave no reason for declining to hear Caulkins’ appeal. But many people expect the court to take up a separate challenge to the law from the National Association for Gun Rights, which argues more broadly that the ban violates the Second Amendment of the U.S. Constitution.

The 7th Circuit Court of Appeals ruled against the gun rights group in November. The group is expected to file its appeal with the U.S. Supreme Court within the next several weeks.

 

ROCKY MOUNTAIN GUN OWNERS FILE LAWSUIT CHALLENGING COLORADO’S “GHOST GUN” BAN

Rocky Mountain Gun Owners [RMGO], Colorado’s only no-compromise gun rights lobby, announced Monday that they have filed a federal lawsuit challenging the constitutionality of Colorado’s newly enacted homemade firearm ban, Senate Bill 23-279. The federal court lawsuit aims to overturn the ban, which infringes on Second Amendment rights.

Three members of Rocky Mountain Gun Owners, along with the National Association for Gun Rights, joined as plaintiffs in the lawsuit challenging the constitutionality of the ban on the ground that it infringes their right to keep and bear arms.

“This law is an outright assault on the constitutional rights of peaceable Coloradans. It’s not just an overreach; it’s a direct defiance to our Second Amendment freedoms,” Rhodes stated. “We believe that this law, much like others that attempt to restrict gun rights, will not stand up under scrutiny, especially in light of the recent Supreme Court decision in Bruen.”

The lawsuit specifically references the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, which set a precedent that any gun control law must be consistent with the nation’s history and tradition of firearms regulation. Bruen prohibits judges from giving any credence to government arguments that the benefits of a firearm regulation outweigh the burden on citizen’s constitutional rights.

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‘historical tradition’ my foot. Show me where there were any historical restrictions on accessories in 1791 or 1866. The judges who hate RKBA will pretzel a ruling anyway they can.

Gun Silencer Regulations Are Held Valid Under Second Amendment

A federal law requiring registration of firearm silencers is an allowable restriction under the Second Amendment, a Louisiana federal judge ruled.

The US District Court for the Western District of Louisiana rejected Brennan James Comeaux’s motion to dismiss a two-count indictment charging him with possessing five silencers that weren’t registered to him and weren’t identifiable by serial number, in violation of the National Firearms Act. Comeaux argued the law violates his Second Amendment right to possess firearms.

The federal law is supported by the historical tradition of regulating gun silencers, US District Judge David C. Joseph wrote

Gun Carry Lawful Again in California as Ruling Against ‘Unconstitutional’ Restrictions Put Back into Effect

Californians with a gun-carry permit can lawfully carry a gun in most areas of the state once again.

A three-judge panel on the Ninth Circuit Court of Appeals removed a stay applied to a lower court ruling against California’s SB2, which created a near-total ban on gun carry in the state. The action reinstates the lower court ruling that found the law violated the Second Amendment rights of those with gun-carry permits.

“The administrative stay previously entered is dissolved,” the panel wrote in May v. Bonta. “The emergency motion under Circuit Rule 27-3 for a stay pending appeal and for an interim administrative stay is denied pending further order of the court.”

The administrative move, like the one that preceded it, has a huge practical effect. The stay allowed the state to implement dozens of expansive “gun-free” zones at the beginning of the year, including one on every piece of private property unless the owner explicitly authorizes gun carry. The cumulative effect of the new “sensitive places” restrictions added up to an effective ban on gun carry.

Undoing the stay practically undoes enforcement of those new zones as the case against them proceeds on appeal. California Attorney General Rob Bonta (D.) did not respond to a request for comment on the order. However, gun-rights advocates celebrated the stay being dissolved.

“The right to carry in California was unconstitutionally eliminated for almost a week,” Kostas Moros, a lawyer for plaintiffs California Pistol and Rifle Association, told The Reload. “We are relieved the status quo has been restored, and Californians with CCW permits, who are among the most law-abiding people there are, can resume carrying as they have for years.”

The panel’s actions reinstate the preliminary injunction issued against the law by U.S. District Judge Cormac J. Carney in December. Carney found SB2 “unconstitutionally deprive” permitholders “of their constitutional right to carry a handgun in public for self-defense.” He further accused California of intentionally ignoring and undermining the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v. Bruen, which established carrying a gun for self-defense is protected by the Constitution.

“SB2’s coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court,” Carney, a George W. Bush appointee, wrote. “The law designates twenty-six categories of places, such as hospitals, public transportation, places that sell liquor for on-site consumption, playgrounds, parks, casinos, stadiums, libraries, amusement parks, zoos, places of worship, and banks, as ‘sensitive places’ where concealed carry permitholders cannot carry their handguns. SB2 turns nearly every public place in California into a ‘sensitive place,’ effectively abolishing the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”

The panel could still reconsider part of the stay before arguments in the case are actually heard. Those arguments are currently scheduled to occur in April.

For gun rights advocates, a ‘Bruen’ bonanza
Upholding weapons ban just one development

In a Dec. 22 press release, the Attorney General’s Office trumpeted the fact that it had successfully defended the state’s assault weapons ban in federal court.

But not only has the final chapter in that case, Capen and National Association for Gun Rights v. Campbell, not yet been written, there is no end in sight — here and across the country — to the battles spawned by the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

In Bruen, the Supreme Court refined the Second Amendment jurisprudence it had previously laid out in District of Columbia v. Heller and McDonald v. Chicago, clarifying that it believed that appellate courts had gone astray in interpreting Heller.

Since Heller, the appeals courts had developed a “two-step” framework for analyzing Second Amendment challenges, combining history with means-end scrutiny, which the Bruen court said was one step too many. The proper test should involve drawing analogies to the country’s history of firearm regulation alone, the Supreme Court ruled.

The court stressed that it was attempting to create “neither a regulatory straightjacket nor a regulatory blank check.” As courts were engaging in “analogical reasoning,” they need only find “a well-established and representative historical analogue, not a historical twin,” Justice Clarence Thomas wrote for the six-member majority in Bruen.

Since that ruling, courts in Massachusetts and elsewhere have begun fleshing out the standard, often prompted by cases filed by emboldened gun rights advocates. Recent weeks have not only seen U.S. District Court Chief Judge F. Dennis Saylor IV’s denial of the plaintiffs’ motion for a preliminary injunction in Capen but a Superior Court judge similarly rejecting a post-Bruen challenge to Massachusetts’ ban on anyone under the age of 21 obtaining a license to carry a handgun outside their home.

Meanwhile, gun rights advocates are celebrating a Lowell District Court judge’s decision to dismiss a charge of carrying a firearm without a license that a New Hampshire man had been facing for bringing the weapon he was licensed to carry in his home state across state lines.

Bruen has also revived a challenge to the state’s “gun roster” in the federal case Granata, et al. v. Campbell, et al., and spawned a new lawsuit challenging gun license delays of six months or more in Boston in White, et al. v. Cox.

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Judge allows challenge to NY assault weapons ban to proceed

A federal judge is allowing a challenge to New York’s assault weapons ban to proceed after he denied a motion to dismiss the lawsuit Thursday.

Two people supported by gun rights advocacy groups sued New York officials in December 2022 over the state’s ban on assault weapons, saying the law was “infringing the right of law-abiding, peaceable citizens to keep and bear commonly possessed firearms for defense of self and family and for other lawful purposes.” U.S. District Judge Kenneth Karas sided with the individuals bringing the lawsuit in a ruling released Thursday, denying state officials’ motion to dismiss the case.

Attorneys for New York officials filed a motion in the Southern District of New York to dismiss the complaint in May, arguing that the court does not have the jurisdiction to address the plaintiffs’ claims. The state officials’ legal team said the individuals “fail to establish that any injury-in-fact is traceable to the assault weapons ban” because they do not say they hold a license required to buy a semiautomatic rifle.

Karas dismissed the defendants’ arguments in the ruling.

“While there may be serious questions about Plaintiffs’ exemption argument, the Court need not address that question here because Plaintiffs adequately allege standing under Defendants’ interpretation of the statute,” Karas wrote.

“Put simply, Defendants have failed to explain how invalidating the Assault Weapons Ban would have no effect on the ability to obtain licenses for those same weapons,” Karas added later in the ruling.

The attorneys for the state officials also contended that the lawsuit should be dismissed because the individuals have not proved that they have “suffered an injury-in-fact.” Karas also pushed back on the argument, saying that the individuals “have also demonstrated that they face a credible threat of enforcement if they follow through with attempting to acquire assault weapons.”

Hearing on Oregon’s Measure 114 Finds it Unconstitutional

When Oregon voters passed Measure 114, it was hailed as a victory for gun control. To be fair, they weren’t wrong. The egregious infringement on people’s rights was as clear as day.

What’s more, any attempt to point out the unconstitutionality of the law were met with claims that it was the will of the people–because segregation was perfectly acceptable because most people in the South supported it or something.

That sparked off the legal fight, one that many people were confident the law would survive. Why they thought that is beyond me, but I’m biased.

It seems, though, that my understanding of whether or not Measure 114 was constitutional or not comes a lot closer to what the most recent hearing on the matter found.

A state court ruling against Oregon’s gun control policy, Measure 114, is going to stand after an expected final hearing about the matter today in Harney County Circuit Court to consider more arguments against the Court’s original case finding.

Harney County Circuit Court Judge Robert Raschio today said he expects the court’s judgment in the case to reflect language he used in his opinion letter about the case, saying Measure 114 is unconstitutional by Oregon’s Constitution.

He had set a January 2, 2024, hearing about his pending ruling against Measure 114 after defendants made more arguments in filings with Harney County Circuit Court after Raschio issued his written legal opinion, ruling November 21, 2023, that Oregon’s gun control policy, passed November 2022 by referendum as Measure 114, violated the state’s constitution.…

Judge Raschio denied that motion, before stating the Court’s judgment language would reflect his Opinion Letter Granting a Permanent Injunction in the case.

He opened that letter with, “The Harney County Circuit Court is issuing a Permanent Injunction under Oregon Revised Statute 28.020 declaring 2022 Ballot Measure 114 unconstitutional thereby permanently enjoining its implementation.  

The court finds the plaintiffs have shown their rights to bear arms under Article l, § 27 of the Oregon Constitution would be unconstitutionally impaired if Ballot Measure 114 is allowed to be implemented. Dovle v. City of Medford, 356 Or. 336 (2014). Based upon a facial constitutional evaluation of Ballot Measure 114, the measure unduly burdens the plaintiffs’ right to bear arms. State v. Christian, 354 Or. 22 (2013).”

And, the truth of the matter is that Measure 114 does all that and more if you’re looking at the Second Amendment, but the court found that it violated the right as protected under Oregon’s constitution.

Frankly, the Oregon Constitution isn’t particularly vague on the matter.

 Section 27. Right to bear arms; military subordinate to civil power. The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]

Plain and simple, people have the right under Oregon’s constitution. There doesn’t seem to be anything expressly permitting gun control, though it lacks that whole “shall not be infringed” thing we see in the Second Amendment.

The measure requires things like universal background checks and magazine bans as well as a gun licensing requirement.

Interestingly, while “the will of the people” seemingly supported the law, it should be noted that only six of 36 Oregon counties actually voted in favor of it. These counties were also the most urban in the state. Shocking, I know.

The passage of Measure 114 is a prime example of the urban/rural divide on guns.

In this case, though, the urban counties thought they could foist this abomination onto the rural ones and have just found out that it’s not that simple. Constitutionality matters.

New Year, Same Old Ninth Circuit

My wife has watched way too many sappy Christmas rom-coms over the holiday break. It’s one of her guilty pleasures, even though she knows from the get-go how the story is going to play out. Girl meets guy under improbable circumstances, there’s immediate friction with an undercurrent of attraction, they get together, there’s a huge blowup, and yet they manage to reconcile and live happily ever after. The characters and the locations may change, but the story is basically always the same.

The Ninth Circuit Court of Appeals is like the Hallmark Channel of the judicial system, at least when it comes to gun control fans. No matter what law is being challenged or how egregiously it violates our Second Amendment rights, lawsuits in the Ninth Circuit seem to follow the same script: gun owners sue, a judge agrees that the law is likely to be unconstitutional and grants an injunction, only to have it stayed and eventually overturned. Sometimes we get a plot twist and a three-judge panel will uphold the injunction, but inevitably that decision is overruled by an en banc review. No matter how improbable or untenable the decision may be, anti-gunners are assured of a happy ending in the Ninth.

Not once in the fifteen years since the Heller decision was handed down has the Ninth Circuit ultimately concluded that a gun control law goes too far and abridges a fundamental right, and though it’s still fairly early the appellate court looks to be keeping that streak alive by allowing California’s new “gun-free zones” to take effect today after a rare Saturday ruling to grant an administrative stay of Judge Cormac Carney’s injunction halting enforcement of the new bans in supposedly sensitive places… including virtually every publicly accessible business that doesn’t specifically post signage welcoming concealed carry holders.

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Left-wing activists sue to change public policy where their candidates cannot win

EXCLUSIVE — Left-wing activist organizations are at the forefront of shaping public policy through lawsuits in places where their aligned political candidates are unlikely to win.

A new Alliance for Consumers report obtained by the Washington Examiner shows how groups such as the anti-gun Everytown for Gun Safety or climate change activist group EarthRights International sue companies to advance their policy preferences to circumvent the legislative process.

These organizations often represent local governments in “public nuisance” lawsuits, which are used to claim that the public is generally harmed by the existence of something, such as tobacco, in order to obtain favorable public policy outcomes and massive settlements.

“Public nuisance lawsuits have almost nothing to do with helping consumers, but a lot to do with pushing a left-wing agenda,” Alliance for Consumers executive director O.H. Skinner told the Washington Examiner. “There’s been growing attention to the political donations that these lawsuits help drive toward left-wing candidates.

“More attention needs to be paid to the public interest groups and shadowy nonprofit funding networks, like Arabella Advisors, who staff, finance, and promote these cases,” Skinner continued. “That is what we have done with this report, and we think it illustrates clearly what these lawsuits are really about and why they are a threat.”

The report, which Alliance for Consumers sent to every Republican governor in America on Wednesday, highlights several organizations involved with public nuisance claims that are aimed at altering or circumventing the policy decisions made by those elected to decide them.

Everytown for Gun Safety, a group founded by former New York City mayor Michael Bloomberg to limit gun rights, has been active in trying to change public policy on guns, including by using its Victory Fund to start a “Demand a Seat” initiative to get its trained activists to run for political office. This year, the group boasted that 17 of its candidates won elections in Virginia alone.

The group launched Everytown Law to focus on being “the largest and most experienced team of litigators in the country dedicated to advancing gun safety in the courts and through the civil and criminal justice systems.”

Everytown has been active in filing lawsuits against gun manufacturers for “contributing to the violent crime epidemic,” as it did when representing Kansas City, Missouri, in a public nuisance complaint in 2020 against the Nevada-based Jimenez Arms and other manufacturers and distributors.

It also represented the city of Chicago when it sued an Indiana gun store because its sales of firearms have “created, exacerbated, and sustained a public nuisance that causes harm to the health, safety, and well-being of Chicago residents.”

The legal wing of the activist organization also trains government lawyers on how to defend limitations to the Second Amendment, and it files direct challenges to laws protecting the right to own and use guns, such as Stand Your Ground laws, which offer some protection for the use of lethal force in self-defense.

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Mark McCloskey, Pardoned for Brandishing Guns at Protesters, Can’t Get the Guns Back

From [the 26th’s] Missouri Court of Appeals decision in McCloskey v. State, written by Judge James M. Dowd and joined by Judges John P. Torbitzky and Michael S. Wright:

This appeal arises out of a petition for replevin in which appellant Mark McCloskey sought the return of two firearms that police had seized pursuant to search warrants in connection with a June 28, 2020, incident in which McCloskey and his spouse exhibited the firearms as a group of protesters passed by their home. They were charged with felony unlawful use of a weapon punishable by up to four years in prison. McCloskey and the State reached a plea agreement whereby McCloskey pleaded guilty to misdemeanor fourth-degree assault and forfeited ownership and possession in the two firearms in exchange for the State dismissing the felony charge….

Soon after, the governor pardoned McCloskey and he filed against the State, the Sheriff, and the Mayor (Respondents) his underlying petition for replevin of the weapons in which he claimed the governor’s pardon gave him the right to their immediate return….

While we agree that the pardon restored all of his rights forfeited by the conviction and removed any legal disqualification, disadvantage, or impediment, Missouri law is unequivocal that a gubernatorial pardon obliterates the fact of the conviction, not the fact of guilt. Thus, McCloskey’s guilty plea, for which he obtained the benefit of the State dismissing a felony charge punishable by jail time, survived the pardon and importantly, with respect to the issue at hand in this replevin action, triggered the guns’ forfeiture. Therefore, since McCloskey’s guilt remains, it follows that he is not entitled to the return of the weapons….

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Analysis: A New Twist on the ‘Dangerous and Unusual’ Standard for Gun Bans

A Massachusetts federal judge upheld the commonwealth’s ban on AR-15s and similar rifles this week. His rationale for doing so relied on an idiosyncratic understanding of the rifle’s purported lethality and defensive utility.

On Thursday, U.S. District Judge F. Dennis Saylor IV denied a motion for preliminary injunction against Massachusetts’ ban on “assault weapons” and ammunition magazines capable of holding more than ten rounds. He did so by putting a new twist on an old argument. He determined that modern laws banning AR-15s fit within the country’s historical tradition of regulating “dangerous and unusual” weapons.

“The banned weapons are ‘dangerous,’ because they are unreasonably dangerous for ordinary purposes of self-defense due to their extreme lethality and high potential for collateral harm,” Saylor, a George W. Bush appointee, wrote in Capen v. Campbell, “and they are ‘unusual,’ because it would be unusual for an ordinary citizen to carry such a weapon on his person on the street for self-defense, or to use it in the home to confront invaders or to protect against personal violence.”

While Saylor is certainly not the first to uphold a hardware ban since the Supreme Court’s Bruen decision, his analytical framework for doing so stands out among the rest for its emphasis on the “dangerous and unusual” standard and his understanding of how AR-15s fit in.

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The Great Legal War Over Your Freedom

Since the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen in 2022, the lower courts have been either trying to apply, or to resist, its directive to decide the validity of restrictions on the basis of the text of the Second Amendment and historical analogues from the time of the Founding. According to the ruling, an activity is presumed to be protected if it involves keeping and bearing arms by the people. The burden is then on the government to find historical precedents to show that a restriction is part of the nation’s history and tradition.

The Fifth Circuit Court of Appeals applied Bruen to the federal ban on gun possession by a person subject to a domestic violence restraining order (DVRO) and found it to violate the Second Amendment. State DVROs are often issued with little pretense of an adversary hearing or are mutually agreed upon in divorces without knowledge that it evokes a federal gun ban.

The Supreme Court agreed to hear the case, U.S. v. Rahimi, and a barrage of amicus briefs have been filed on both sides. Mr. Rahimi faces several state charges involving actual violence, dwarfing the federal possession charge. The amicus brief of the National Rifle Association put it this way: “Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties—if the allegations against him are ultimately proven true with sufficient due process. But constitutional safeguards cannot be set aside to obtain those ends.”

Consider the supposed historical analogues cited by Biden’s Justice Department and its amici—discriminatory laws disarming Catholics, slaves and “tramps”; confiscation of arms by oppressive British monarchs and by our own patriots in the American Revolution (there was a war going on, after all); and wholly irrelevant laws against gun sales to children and intoxicated persons. The Court heard oral arguments in the case on Nov. 7, 2023.

The Third Circuit, in Range v. Merrick Garland, held the federal ban on gun possession by felons to be unconstitutional as applied to a person convicted of a minor, non-violent offense.  Again, no laws in the Founding era disarmed persons who were not dangerous. The government is asking the Supreme Court to hear that case after it decides Rahimi.

When it decided Bruen, the Supreme Court directed the Fourth Circuit to reconsider its upholding of Maryland’s “assault weapon” ban in Bianchi v. Frosh. That court had held that ordinary AR-15 semi-automatic rifles are not really different from machineguns and are “weapons of war most useful in military service,” even though no military force in the world issues them as service rifles.

The Fourth Circuit got right on it, holding its oral argument on Dec. 6, 2022. A year later, crickets. Still no decision. Is it really so hard to apply Bruen’s simple tests, or would the court not like the result?

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Massachusetts Assault Weapon Ban Ruled Constitutional by Judge

Massachusetts’ law prohibiting the possession and sale of some semiautomatic weapons commonly used in mass shootings is acceptable under a recent change to Second Amendment precedent from the US Supreme Court, a federal judge said Thursday.

The National Association for Gun Rights asked the US District Court for the District of Massachusetts to prevent the state from being able to enforce its law, claiming the weapons are protected under the Second Amendment because they were in common use at the time the Second Amendment was adopted.

The banned weapons “are unreasonably dangerous for ordinary purposes of self-defense due to their extreme lethality and high potential for collateral harm,” Chief Judge Dennis Saylor wrote in an order denying the gun rights group’s request to halt enforcement of the law.

This IS NOT the Bruen Standard.

The US Supreme Court held last year in New York State Rifles & Pistol Association Inc. v. Bruen that state governments must prove a regulation would have been consistent with the nation’s historical regulation of firearms.

Saylor’s decision helps build the jurisprudence for the types of state regulations that remain acceptable under the Second Amendment post-Bruen as many states grapple with challenges to their weapon laws. States like Illinois, California, and Connecticut have also been allowed to move forward enforcing their assault weapon bans.

“The relevant history affirms the principle that in 1791, as now, there was a tradition of regulating ‘dangerous and unusual’ weapons—specifically, those that are not reasonably necessary for self-defense,” the order said, and the current restrictions “pose a minimal burden on the right to self-defense and are comparably justified to historical regulation.”

THIS, is not the Bruen Standard either!

Saylor was not convinced that assault weapons are commonly used for self-defense, finding them “generally unsuitable” for that purpose because of their weight, size, and firepower.

“The features of modern assault weapons—particularly the AR-15’s radical increases in muzzle velocity, range, accuracy, and functionality—along with the types of injuries they can inflict are so different from colonial firearms that the two are not reasonably comparable,” the order said.

The case is Capen v. Campbell, D. Mass., No. 1:22-cv-11431, order 12/21/23.

Federal Judge Declines to Temporarily Block Key Portion of Illinois High-Power Semiautomatic Weapons Ban

A federal judge in Illinois has declined to temporarily delay a portion of the state law banning some high-power semiautomatic weapons from going into effect.

U.S. District Judge Stephen McGlynn on Friday declined a request from several gun rights groups that would have delayed the Jan. 1 deadline for residents of Illinois to register their guns that are under the ban, according to the Chicago Tribune.

According to the report, those who have guns or accessories that are included in the ban are required to file “endorsement affidavits” with the Illinois State Police on their website.

Individuals who fail to register could be charged with a misdemeanor for the first offense and a felony for any offenses after.

McGlynn wrote in his opinion that a temporary injunction would “create further delays in this litigation when the constitutional rights of the citizens demand an expeditious resolution on the merits.”

President of Federal Firearms Licensees of Illinois, Dan Eldridge, told the outlet that the issue could end up in the Supreme Court.

“There’s a lot of stuff in motion in here,” Eldridge said.

The ban, signed by Democratic Gov. J.B. Pritzker in January, includes penalties for individuals who, “carries or possesses… manufactures, sells, delivers, imports, or purchases any assault weapon or .50 caliber rifle.”

The law also includes statutory penalties for anyone who, “sells, manufactures, delivers, imports, possesses, or purchases any assault weapon attachment or .50 caliber cartridge.”

Any kit or tools used to increase the fire rate of a semiautomatic weapon are also included in the ban, and the law includes a limit for purchases of certain magazines.

On Dec. 14, the Supreme Court allowed the law to remain in place after the National Association for Gun rights asked for a preliminary injunction.

In November, a 7th District U.S. Court of Appeals panel also refused a request to block the law. In August, the law was upheld by the Illinois Supreme Court in a 4-3 decision.

Biden Administration Urges Supreme Court To Overturn Injunction on Federal Agencies Influencing Tech Censorship
Biden wants the Supreme Court to support its censorship efforts.

The US Court of Appeals for the Fifth Circuit recently affirmed an injunction against federal agencies to stop the current White House from colluding with Big Tech’s social media.

And now, the Biden Administration is going to the US Supreme Court in a last-ditch attempt to reverse this decision.

The big picture effect – or at least, the intended meaning – of the Fifth Circuit ruling was to stop the government from working with Big Tech in censoring online content.

There’s little surprise that this doesn’t sit well with that government, which now hopes that the federal appellate court’s decision can be overturned.

The White House says the ruling is banning its “good” work done alongside social media to combat “misinformation”; instead of admitting its actions to amount to collusion with Big Tech – which has been amply documented now, not least by the Twitter Files – the government insists its actions are serving the public, and its “ability” to discuss relevant issues.

We obtained a copy of the petition for you here.

US Surgeon General Vivek Murthy is back again here – to say that what those now in power in the US (a message amplified by legacy media) did ahead of the 2020 presidential election, as well as subsequently regarding the pandemic “misinformation” – which is now fairly widely accepted to be censorship (“moderation”) – is what Murthy still calls, justified.

By what, though? Because the appellate court’s ruling looked into the government’s “persuasive actions” (and no, you’re not reading a line from a gangster movie script, where “coercion” is spelled as, “urging”, etc.).

In any case, the appellate court found these actions were in fact coercive and unconstitutional.

Well, Murthy believes the court got it all wrong. The Fifth Circuit is accused of “improperly applying new and unprecedented” remedies. (No – he was not talking about the Covid vaccine(s). The reference was to the court’s allegedly flawed “legal theories”).

Murthy and other administration representatives are telling the Supreme Court that what the Fifth Circuit found to be unconstitutional, was actually “lawful persuasive governmental actions.”

The “grand” argument here is that, historically, US governments have been using free speech as a vehicle to promote their policies. And so – why would this case of “urging” Big Tech be any different?

“The Biden administration’s urging of social media platforms to enforce their content moderation policies to combat misinformation and disinformation is no different,” the government said.