Category: Courts

Hunter Biden seeks dismissal of gun charges, saying law violates the Second Amendment
He’s accused of having a gun for 11 days in 2018, a period where he has acknowledged using drugs. It’s illegal for “habitual drug users” to own guns, but an appeals court has ruled that law unconstitutional.

Hunter Biden pushed back Monday against gun charges filed against him, challenging the case on multiple fronts as unconstitutional and politically motivated days after he was hit with new tax charges.

His defense attorney argued the gun case should be tossed out because an appeals court has found the law violates the Second Amendment under new standards set by the Supreme Court. Abbe Lowell also contended the charges against Hunter Biden violated immunity provisions that prosecutors agreed to in a plea deal they abandoned after Republicans slammed it as a “sweetheart deal.”

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Law Enforcement Officers Are Part of “the People,” Not Above Them

Law enforcement amicus brief against Colorado magazine ban.

DAVID KOPEL 

Two weeks ago, I filed an amicus brief in U.S. District Court in Colorado, in Gates v. Polis, a case challenging the Colorado legislature’s 2013 ban on magazines over 15 rounds. The brief was on behalf of Sheriffs and law enforcement training organizations: the International Law Enforcement Educators and Trainers Association, the Colorado Law Enforcement Firearms Instructors Association, the Western States Sheriffs Association, 10 elected Colorado County Sheriffs, and the Independence Institute (where I work).

Some of the brief explains the practical mechanics of armed self-defense, and why bans on standard magazines do not impair mass shooters, but do endanger ordinary citizens, especially when attacked by multiple criminals. Another part of the brief shows that the key data created by some of the Colorado Attorney General’s expert witnesses is obviously false.

But in this post, I will focus on a more fundamental argument in the brief. The law enforcement amici reject the claim that arms universally recognized as appropriate for ordinary law enforcement officers should be banned for ordinary citizens. The claim is based on the pernicious idea that law enforcement officers are above the people, rather than part of the people. Here are some excerpts from the brief:

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Hawaii Resident Challenging ‘Suitable Person’ Criterion for Carry Permits

It’s been awhile since I’ve had to say aloha to new litigation in Hawaii. In our post NYSRPA v. Bruen world, there’s been all kinds of shenanigans that jurisdictions have been playing that keeps permitting systems “may issue.” There are also pre-Bruen standards that need to be revisited, as is the case here. Any subjective standard in an application scheme is de facto “may issue” criteria, and goes against Heller and NYSRPA v. Bruen. Resident of the Aloha State, Blake Day, was denied a permit to carry for allegedly being “not of ‘good moral character’ and/or ‘suitable.’”

Drawing details from the complaint that was filed on the 6th of December, 2023, Mr. Day’s alleged lack of “good moral character” and suitability arises from what the Hawaii County Chief of Police stated was “due to ‘recent violent conduct.’” The so-called “violent conduct” is in reference to an incident where Mr. Day was forced to defend himself – with non-lethal force – while executing his duties as a contractor for a bank. The conflict resulted in no criminal charges.

In January of 2023, the job Day was tasked with was cleaning up and securing a vacant property. “Mr. Day was led to believe (by his contact at Five Brothers) that the property had been foreclosed upon by Home Street Bank, the mortgagee identified on the Work Order.” The complaint states. It was further noted that Mr. Day believed the property was vacant based on the information he received from Five Brothers.

While Mr. Day was at the property, the owner of the property, Darren Rodrigues, Jr., who had in fact previously vacated the property, was alerted by a Ring doorbell camera that someone had entered the property.

Mr. Rodrigues called the police and then drove to the home.

Mr. Rodrigues aggressively entered the driveway at a high rate of speed. Mr. Rodrigues came to an abrupt stop directly behind Mr. Day’s vehicle which had also been parked in the driveway. Mr. Rodrigues’ vehicle blocked Mr. Day’s exit and Mr. Day could not leave.

Mr. Rodrigues quickly exited his vehicle and stood by the driver’s side door of the vehicle yelling obscenities and “what are you doing at my house?”

Mr. Rodrigues appeared to have something in his right hand and Mr. Day believed it was a weapon. Mr. Day used lawful non-lethal force, i.e., a pepper spray air gun, firing it several times in self-defense.

Mr. Rodrigues threw the object that was in his right hand, which Mr. Day learned to be a Coca-Cola can shortly after it struck Mr. Day in the face.

The complaint details that the police responded and “upon completion of the investigation, neither Mr. Day nor Mr.Rodrigues were arrested or booked. No charges were ever brought.”

In May of 2023, Day filed for a permit to carry through the County of Hawaii Police Department. In June, Day received a denial letter stating that he did not meet the suitability requirements in order to be issued a permit to carry. According to the complaint, Mr. Day suffers from no statutory state or federal disabilities which would create disqualifiers for him to own or carry a firearm.

This is the same issue we’ve been dealing with which Bruen struck down – subjectivity. While many will concede that jurisdictions that have “suitability” requirements like the County of Hawaii and New Jersey, they have been issuing permits to carry – mostly without issue. However there are also a whole slew of situations where they haven’t been, and the old guard needs to surrender their grip on civil liberties. Mr. Day unfortunately is being weighed against the subjective opinion of a government employee and not measured to an objective statutory standard.

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Gun rights group applauds after federal appeals court deals blow to NY concealed carry law
Gun Owners of America praised the Second Circuit decision but said the court should have thrown out all of the New York gun control law

Gun rights activists cheered Friday after a federal appeals court struck down parts of New York’s expansive concealed carry law.

The U.S. Court of Appeals for the Second Circuit blocked three provisions of New York’s “Concealed Carry Improvement Act” (CCIA), a law Democrats passed last year in response to a Supreme Court ruling that declared the state’s previous concealed carry permitting requirements unconstitutional. In doing so, the appeals court allowed other parts of the law to go into effect.

In a 261-page ruling, the three-judge panel struck down a requirement that gun owners disclose their social media accounts for review when applying for a concealed carry permit. The court also blocked restrictions on carrying firearms on private property that is accessible to the public, as well as a restriction on concealed carry in houses of worship.

However, controversial parts of the law remain intact, including a requirement that applicants demonstrate good moral character and disclose household and family members on a permit application. New York will also be allowed to enforce bans on concealed carry in so-called “sensitive places,” including theaters, bars, public parks and other spaces.

“Governor [Kathy] Hochul and her cabal in Albany never seem to get the message, and in turn, GOA is proud to have played a major role in rebuking her unconstitutional law,” Gun Owners of America (GOA) Senior Vice President Erich Pratt said in a statement.

“Nevertheless, this was not a total victory, and we will continue the fight until this entire law is sent to the bowels of history where it belongs,” Pratt added.

Friday’s decision is the first federal court ruling to consider potential limits on where licensed gun owners can carry concealed firearms since the Supreme Court expanded gun rights in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). Justice Clarence Thomas wrote in that opinion for the court that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

The consequences of the Supreme Court’s ruling have been far-reaching, upending gun regulations in several states.

The circuit court judges acknowledged their ruling won’t be the final word on New York’s gun control law as the case winds its way through lower courts.

READ THE SECOND CIRCUIT OPINION BELOW. APP USERS: CLICK HERE

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FED. JUDGE STRIKES HANDGUN SALES BAN FOR 18-20 YR. OLDS IN W.VA CASE

BELLEVUE, WA – A federal district court judge in West Virginia has ruled that a federal law prohibiting handgun sales to 18-20-year-olds is “facially unconstitutional,” and granted a summary judgment in a case brought by the Second Amendment Foundation.

In a 40-page decision, U.S. District Chief Judge Thomas S. Kleeh with the Northern District of West Virginia wrote, “(B)ecause Plaintiffs’ conduct – the purchase of handguns – ‘fall[s] [within] the Second Amendment’s ‘unqualified command’ and the challenged statutes and regulations are not ‘consistent with the Nation’s historic tradition of firearm regulation,’ the Court FINDS 18 U.S.C. §§ 922(b)(1) and (c)(1) facially unconstitutional and as applied to Plaintiffs.”

He enjoined the defendants—in this case the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Director Steven Dettelbach and Attorney General Merrick Garland—from enforcing the provisions “against Plaintiffs and otherwise-qualified 18-to-20-year-olds.”

“This is a huge victory for Second Amendment rights, especially for young adults,” said SAF Executive Director Adam Kraut. “The Biden Justice Department argued that people in this age group were not adults, which was patently ludicrous. The government simply could not defend the constitutionality of the handgun prohibition, and Judge Kleeh’s ruling makes that clear.”

“There was never any historical evidence supporting this arbitrary ban on the purchase and ownership of handguns by young adults,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “As we maintained all along, history goes in the opposite direction. At that age historically, young adults were considered mature enough to serve in the militia, the military and take on other responsibilities. We’re delighted with the judge’s ruling.”

The case was filed in September 2022. Joining SAF were the West Virginia Citizens Defense League and individual citizens Steven Robert Brown and Benjamin Weekly. They were represented by attorneys John H. Bryan of Union, W.Va., and SAF’s Kraut, who is a practicing attorney based in Westtown, Pa.

Laws Requiring Permission to Obtain Guns Look Vulnerable

According to a landmark 2022 Supreme Court decision, the Second Amendment constrains the requirements that states may impose on residents who want to carry guns in public for self-defense. It stands to reason that the same is true of the steps that people must take to acquire guns in the first place.

That is essentially what the U.S. Court of Appeals for the 4th Circuit concluded last week, when it ruled that Maryland’s handgun licensing system is inconsistent with the right to keep and bear arms. The case exemplifies a new front in constitutional challenges to gun control laws under the Second Amendment test that the Supreme Court established last year.

To pass that test, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” But Maryland’s law, which requires would-be handgun owners to complete a process that can take up to 30 days, bears little resemblance to regulations enacted in the 18th or 19th century.

Maryland is one of 14 states that require background checks for all firearm purchases, whether or not the seller is a federally licensed dealer. Since 2013, Maryland has imposed an additional requirement on handgun buyers: They must first obtain a “handgun qualification license,” which entails completing at least four hours of firearm training and undergoing a seemingly redundant “investigation” aimed at screening out people who are legally disqualified from owning guns.

Maryland argued that its law fits a tradition of disarming “dangerous” individuals, such as people with felony records, illegal drug users and people convicted of domestic violence misdemeanors. But even assuming those categories of “prohibited persons” are validated by long-standing practice, 4th Circuit Judge Julius Richardson said, Maryland’s statute goes further by “preemptively disarming every person until they can each prove that they are not dangerous,” which “burdens a far broader swath of people.”

Writing in dissent, Judge Barbara Milano Keenan highlighted the Supreme Court’s distinction between “may issue” laws like New York’s, which required carry-permit applicants to demonstrate “proper cause,” and “shall issue” laws, which make permits available to all applicants who meet “objective criteria.” Maryland’s licensing system for handgun buyers falls into the latter category, Keenan said, which suggests the Court would be inclined to uphold it.

While the Supreme Court did indicate that “shall issue” laws could be consistent with the Second Amendment, it also noted that “any permitting scheme can be put toward abusive ends.” It therefore did not rule out “constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

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