Category: Courts

Police in This Blue State Will Continue Enforcing ‘Draconian’ Handgun Law Ruled Unconstitutional by Court

Maryland State Police will continue enforcing the state’s handgun law for now, despite a federal appeals court ruling that the licensing requirement is unconstitutional.

“At this time, the HQL law remains in effect and there are no immediate changes in the process to purchase a firearm in Maryland,” the department wrote in an agency-wide advisory after last week’s ruling.

Maryland’s Handgun Qualification License (HQL) requires applicants to submit fingerprints for a background check, take a four-hour firearm safety course with a live fire component, and wait up to 30 days for approval before purchasing a handgun, which then requires another application and seven-day waiting period.

Last Tuesday, a three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 that the law is overly “burdensome” and cannot stand under the 2022 landmark Supreme Court decision that a firearm regulation is unconstitutional unless the government can prove it is consistent with the nation’s historical tradition.

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A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit
Courts are “not insensitive to domestic violence” but are “sensitive to the constitutional rights of the accused.

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I’ve voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett’s question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let’s start with a premise: Rahimi was a faithful application of Bruen. Efforts to “clarify” Bruen are really an attempt to rewrite the precedent. I don’t think anyone seriously doubts this premise. Now the reason why the Court may “clarify” Bruen is because certain members of the Court don’t like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that’s where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn’t get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can’t just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier. Here is a snippet from the introduction:

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities.

The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished.

Likewise, a violation of a person’s Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible. Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self‐incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder.

The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non‐excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial.

The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be detained indefinitely without proper procedures.

Liberty’s harm to society takes many forms—not just from the exercise of the right to keep and bear arms. These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

Not much has changed since I wrote these words more than a decade ago. The Supreme Court, often with lopsided majorities, protects the constitutional rights of very dangerous people. Yet when it comes to the Second Amendment, it’s as if all of these precedents vanish.

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Huge: Fourth Circuit Declares Maryland’s ‘Handgun Qualification License’ Unconstitutional

A decade ago, Maryland lawmakers imposed a new burden on residents hoping to exercise their Second Amendment right to keep and bear a handgun by creating a “Handgun Qualification License.” Before any would-be gun owner can take possession of a pistol, they must first jump through several state-mandated hoops, from submitting fingerprints as part of a background check investigation to taking a four-hour-long “firearms safety training course” that includes the firing of at least one live round of ammunition. After waiting 30 days or more for approval, the would-be gun owner then has to go through another background check and an arbitrary seven-day waiting period before they can take possession of their pistol, though they must run another bureaucratic gauntlet before they’re actually allowed to carry the sidearm in self-defense.

On Monday a three-judge panel of the Fourth Circuit Court of Appeals concluded what Second Amendment activists have been arguing for years; the Handgun Qualification License is an unconstitutional barrier to exercising a fundamental right. In a 2-1 decision, the majority declared that the “plaintiffs challenge must succeed”; reversing a district court opinion and delivering an important victory to the Firearms Policy Coalition, Maryland Shall Issue, the Independence Institute, Atlantic Guns, and several individual residents who’d sued over the permit requirement.

The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one.

Under the Supreme Court’s new burden-shifting test for these claims, Maryland’s law thus fails, and we must enjoin its enforcement. So we reverse the district court’s contrary decision.

Applying the Supreme Court’s “history, text, and tradition” test to the Maryland statute, the Fourth Circuit panel determined that there are no historical analogues to the modern-day gun control law. Importantly, the panel ruled that while the HQL doesn’t directly deal with either keeping or bearing arms, but rather their acquisition, the gun control law still directly implicates and imposes on the Second Amendment rights of residents.

The answer is not complicated. If you do not already own a handgun, then the only way to “keep” or “bear” one is to get one, either through sale, rental, or gift. And the challenged law cuts off all three avenues—at least, for those who do not comply with its terms.

That brings us to the next wrinkle: The challenged law does not permanently prohibit Plaintiffs from acquiring or carrying handguns. Instead, it imposes certain requirements that they must meet before they can obtain a handgun. And those requirements rely on “objective” criteria, which Plaintiffs admit that they can satisfy. Once they do so, the law commands that the state “shall issue” them handgun-qualification licenses.

But even though Maryland’s law does not prohibit Plaintiffs from owning handguns at some time in the future, it still prohibits them from owning handguns now. In order to get a handgun, Plaintiffs still have to follow all of the law’s steps. And, although they will be able to complete each one, it is impossible to do so right away.

Plaintiffs can’t receive a license to legally acquire a handgun until the state reviews their applications, which can take up to thirty days. So, no matter what Plaintiffs do, there will be a period of up to thirty days where their ability to get a handgun is completely out of their control.

In other words, though it does not permanently bar Plaintiffs from owning handguns, the challenged law deprives them of that ability until their application is approved, no matter what they do.

As the panel reasoned, there’s nothing in the language of the text of the Second Amendment or the Bruen decision that suggests the amendment protects “only against laws that permanently deprive people of the ability to keep and bear arms.” A right delayed is a right denied, and the “temporary deprivation that Plaintiffs allege is a facially plausible Second Amendment violation.”

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BLUF
Post-Bruen, just as what happened after Heller, many federal courts are trying to stymie the obvious results of the Supreme Court’s Second Amendment decisions. A continued effort by Second Amendment advocates will be required to ensure proper enforcement of these landmark rulings.

Seventh Circuit Strains to Uphold Illinois’ Gun and Magazine Ban

At this point, gun owners and other productive Americans don’t anticipate much good news out of Chicago. On November 3, the U.S. Court of Appeals for the Seventh Circuit lived up to those expectations when it upheld Illinois’ ban on commonly-owned semi-automatic firearms in Herrera v. Raoul.

In early 2023, Illinois enacted the ill-titled Protect Illinois Communities Act. That legislation, among its numerous anti-gun provisions, prohibits commonly-owned semi-automatic firearms such as the AR-15 and ammunition magazines with a capacity greater than 10 rounds. Current owners of prohibited guns are only permitted to retain their property if they register their firearms with the government. The plaintiffs in the present case challenged Illinois’ statute on Second Amendment grounds.

This may have seemed like an open-and-shut case to some who follow Second Amendment jurisprudence.

In 2008, the U.S. Supreme Court ruled that the Second Amendment protects ownership of arms “in common use” for lawful purposes. In case there was any confusion about what “arms” that might entail, Heller decision author Justice Antonin Scalia cleared that up in 2015 when he signed onto a dissent from the denial of certiorari in Friedman v. Highland Park. In the dissent, Justice Clarence Thomas explained,

Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

Commonly-owned semi-automatic firearms have only become more common since Heller and the Highland Park case. In 2022, the National Shooting Sports Foundation (the firearm industry trade association) estimated that since 1990 more than 24 million modern sporting rifles (their term for commonly-owned semi-automatic rifles) have entered circulation in the U.S. A 2023 Washington Post poll found that “6 percent of Americans own an AR-15, about 1 in 20.” Given compelling research finding that polling systematically undercounts the number of gun owners in the U.S., that number may be far higher.

The standard capacity firearm magazines Illinois prohibits are not just common, but ubiquitous. Many of the most popular handguns and rifles in America are designed to use magazines with a capacity greater than 10 rounds. Americans own hundreds of millions of firearm magazines with a capacity greater than ten rounds.

If Heller weren’t enough, in 2022 the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. As the dissent in the present case noted, “’in common use’ is a sufficient condition for finding arms protected under the history and tradition test in Bruen.” However, for a firearm restriction to be permissible it must meet that further burden.

Specifically, the Bruen opinion explained,

[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Given that the concept of an “assault weapons” ban targeting semi-automatic long guns came about in the 1980s only after gun control advocates failed to ban their preferred target (handguns), such prohibitions have no place in the American tradition.

To uphold the Illinois ban, the Seventh Circuit set about contending that the AR-15 falls outside the definition of “bearable arms” discussed and protected in Heller. According to the Judge Diane Wood,

the definition of “bearable Arms” extends only to weapons in common use for a lawful purpose. That lawful purpose, as we have said several times, is at its core the right to individual self-defense.

Wood contended that firearms that are prominent in military purposes fall outside this definition and are therefore not arms covered by the Second Amendment. Wood then claimed that the AR-15, despite its solely semi-automatic function, resembles the fully-automatic military M16 sufficiently for it to also fall outside the Second Amendment’s protection.

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There’s a Federal court case in Texas where a man filed a Form1 to make a MG and ATF (of course) denied it. This keeps up and SCOTUS just may get involved, and I’m not the only one thinking that, at the very least, the 1986 ban on new ‘transferable’ guns may get the axe under the “Bruen test” .

Attorney with local ties takes gun rights case to federal appeals court

An attorney and Nixa resident with ties to the area has a case related to gun rights making its way through the federal appeals court system after it was rejected by the U.S. District Court, Western District of Missouri, headquartered in Springfield.

The case has been appealed and will now move to the Eighth District Circuit Court of Appeals, primarily based in St. Louis.

Mark Blount, representing himself, is arguing against the National Firearms Act prohibition on possession of ordinary military weapons manufactured after 1986, with the defendants listed as the United States of America; the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Merrick Garland acting as Attorney General of the United States; and Bernard G. Hansen, acting as Special Agent in Charge of the ATF Kansas City Field Division.

The case background describes Blount’s complaint regarding the National Firearms Act, the Gun Control Act and the Firearms Owners Protection Act of 1986, all considered by Blount as unconstitutional, based on his argument the laws collectively infringe upon and deprive him of “ancient, inalienable, private, individual, absolute, ancestral sovereign common law right to keep and bear arms, retained by ancestors, the Founders of this country, and enumerated in the Second Amendment to the U.S. Constitution, by prohibiting Plaintiff from possessing machine guns of all descriptions manufactured after 1986.”

Blount specifically complains his constitutional rights are being infringed upon because, according to court documents, he “plans on purchasing an M-16 rifle, M-4 rifle, Squad Automatic Weapon (SAW), or other machine gun which comprises the standard issue equipment of a service member in the United States military, manufactured after 1987, to wit, an ordinary military weapon, or converting the AR-15 rifles that he already lawfully possesses to automatic weapons,” and the acts criminalize his “planned course of conduct.”

The case was dismissed by the District Court, in part, on the grounds that Blount’s argument that his rights were being infringed upon was based on a “conjectural or hypothetical interest” rather than an “invasion of a legally protected interest that is concrete and particularized and actual or imminent.”

In other words, it was rejected on the grounds his argument was based on an illegal act he planned on committing rather than the real possibility of prosecution after committing it, and that he failed “to allege anything beyond a speculative fear of prosecution.”

While the judgment didn’t address Blount’s argument of those laws as unconstitutional, he outlined it in an eight-page document sent to the Quill. In general, he says, the right to bear arms is a constitutional right that has been passed down from the founding fathers, and he describes it, in part, as a fundamental right “upon which rights every other right is based, which rights we had inherited as the lineal, legal, and bloodline descendants of the ancestral class of rights-holders, free Englishmen.”

Blount is a Duke University School of Law graduate. He is married to Ashley Huddleston-Blount, whose family is from West Plains. Huddleston-Blount’s family is from West Plains, and her grandparents owned a small cattle farm in Oregon County and were known throughout the area. She is descended from the Huddlestons who were in the West Plains area as early as the start of the 1820s.

Analysis: ‘One Weird Trick’ to Uphold Gun Restrictions Returns to Federal Court

particularly flimsy legal theory has reappeared in federal Second Amendment litigation.

On Monday, US District Judge John L. Kane upheld Colorado’s three-day waiting period for gun purchases. He ruled the sales restriction didn’t violate the Second Amendment. His reasoning? The Second Amendment doesn’t actually protect gun sales at all.

“After examining the language of the Second Amendment using the Supreme Court’s analysis in Heller, I find, for the purposes of Plaintiffs’ Motion, that the plain text does not cover the waiting period required by the Act,” he wrote in Rocky Mountain Gun Owners v. Polis. “This conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible.”

Judge Kane, a Jimmy Carter appointee, said the state’s restriction passes the Second Amendment test established in the Supreme Court’s New York State Rifle and Pistol Association v. Bruen decision by effectively short-circuiting it. Instead of examining the historical record for analogs to the modern waiting period, he argued that was unnecessary because the “right to keep and bear arms” doesn’t directly mention a right to buy, make, or sell them.

“From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered,” he wrote. “Still, Plaintiffs attempt to equate the words ‘obtain’ and ‘possess.’ But these terms are not equivalent. To ‘keep,’ under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, ‘hav[ing] weapons’ indicates the weapons are already in one’s possession, not that one is receiving them.”

As I said when a judge in the Ninth Circuit employed the same logic to uphold a homemade gun ban last year, this is like a “one weird trick that plaintiffs hate” theory of Bruen. There’s no need to perform the analysis the Supreme Court requires if you cut the case off before it even really begins.

“Though it leads with a recognition of the primacy of Bruen’s ‘plain text’ point, [the plaintiff] seeks in its opening brief to jump ahead in the analysis to a historical/tradition assessment (and to jump ahead in Bruen to that decision’s discussion of how to conduct such an assessment),” Judge George H. Wu wrote in his ruling rejecting a request for a preliminary injunction against California’s ban on unserialized homemade guns. “But it has effectively attempted to avoid the necessary threshold consideration – does the ‘Second Amendment’s plain text’ cover the issue here? No, it plainly does not. AB 1621 has nothing to do with ‘keep[ing]’ or ‘bear[ing]’ arms.”

There has been a lot of disagreement among the lower court as to how best to implement the Bruen test. Judges have come down on different sides of whether the same restrictions have relevantly similar historical analogues. That disagreement will likely continue until the Supreme Court steps in and further clarifies how lower courts should carry out its test–a process it’s expected to start in its current case United States v. Rahimi.

But the idea that the Second Amendment guarantees the right to keep and bear arms but not the right to make or acquire arms isn’t likely to be part of that clarification. It’s simply too cute by half. The argument makes you wonder what exactly Judge Kane and Wu think the point of protecting keeping and bearing arms is if the government can simply ban their manufacture or sale.

Judge Kane seemed to realize this because he did go through an attempt to do the actual Bruen analysis. He ruled that the law would still stand even if the Second Amendment protects sales. He argued colonial-era laws that disarmed intoxicated people were relevantly similar to the waiting period because both aimed at “preventing impulsive acts of firearm violence.”

“These measures are sufficient to show that our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,” Judge Kane wrote. “Plaintiffs do not seem to dispute this determination, but instead focus on whether those regulations are ‘relevantly similar’ to the Waiting-Period Act. For the purposes of this proceeding, I hold that they are.”

That line of argument doesn’t seem much more likely to persuade the Supreme Court–if it ever makes it that far up the ladder. But it at least engages with the test the Court handed down. The idea that the Second Amendment provides no protection at all to the act of acquiring arms is little more than an attempt to hand wave away Bruen.

State Rep. Dan Caulkins files petition to U.S. Supreme to review Assault Weapons Ban decision

DECATUR, Ill. (WRSP) — State Representative Dan Caulkins (R-Decatur) has petitioned the Supreme Court of the United States to review the Illinois Supreme Court’s decision on Illinois’ weapons ban law on due process, equal protection, and Second Amendment grounds.

Caulkins believes the issue is the denial of due process under the 14th Amendment arising from Justices Elizabeth Rochford and Mary Kay O’Brien participating in the case despite overwhelming reasons they should have recused themselves.

He feels that both justices received disproportionate contributions from the leaders of the co-equal branches of government in the aggregate sum of more than $2.5 million calling into question their impartiality and independence.

He says that both justices received the endorsement of G-PAC, which states: “Each endorsed candidate supports our #1 legislative priority when the General Assembly is called into session: banning assault weapons and large-capacity magazines.”

Both Justice Rochford and O’Brien received disproportionate campaign contributions, and both made a commitment to support the legislative policy of banning assault weapons,” Caulkins said. “Additionally, the donations to these justices came from Gov. JB Pritzker and House Speaker Chris Welch which calls into question the independence of the judiciary and the separation of powers.

Given the size of the campaign contributions and who gave the contributions, there not only is a question of fairness and impartiality, there also is a question of the independence of the Justices which calls into question the validity of the state court decision.

Caulkins said the due process under the 14th Amendment argument calls into question the fairness of the proceedings at the Illinois Supreme Court, but the petition also asks for a review of the substance of the case which centers on the three readings requirement in the Illinois Constitution, the Second Amendment, and the Equal Protection clause of the 14th Amendment.

The petition states:

There exists no rational basis to criminalize one person indistinguishable in any manner based on conduct from another immunized from the criminal liability or to speculate that the prohibited present a greater risk for mass shootings than the grandfathered based on the date an assault weapon was acquired.

The grandfathered who are immunized from criminal liability for possession have no greater training than the prohibited merely because the grandfathered already possess an assault weapon. Or, if the grandfathered are presumed to be safe (lawful) to possess assault weapons by mere possession, then the prohibited would satisfy the same safety presumption if allowed to acquire and possess.

The fortuity of time of acquisition bears no connection to safety or danger. The resulting arbitrary classification on the face of the Assault Weapons Partial Ban fails all levels of scrutiny test and should be invalidated on this additional basis.

This petition is about the thousands of plaintiffs who joined my lawsuit and were denied a fair proceeding at the Illinois State Supreme Court,” Caulkins said. “The Illinois Supreme Court does not have an objective standard for recusals. The Court relies on individual justices to determine if there is a conflict. The end result is an unfair process that leads to biased outcomes. We are asking the U.S. Supreme to review this case based on the lack of fairness as well as the merits of our arguments against the weapons ban law.

And on the other hand, there’s a subset of people who understand that when SCOTUS restores fundamental rights as they should be, they follow right along, like they should.
Now, I don’t advise cheating Uncle, or driving while intoxicated, but goobermint needs to stop with restricting rights by any piddly means it can devise.

Judge Nixes Lifetime Gun Ban for Non-Violent Misdemeanor Offense

In a case very reminiscent of Range v. Garland, in which the Third Circuit Court of Appeals ruled that Bryan Range’s conviction for lying about his income on a food stamp application decades ago should not have resulted in a lifetime prohibition on keeping or bearing arms, a federal judge in Pennsylvania has ruled that a man’s 2005 DUI arrest and conviction on misdemeanor charges cannot disqualify him from exercising his Second Amendment rights.

Though Edward Williams was convicted of a misdemeanor offense, it was also a crime punishable by up to five years in prison. Williams didn’t serve any time behind bars, however. Instead, he was sentenced to 90 days of house arrest and ordered to receive treatment for drug and alcohol abuse. Since the potential sentence was more than a year in prison, however, the misdemeanor conviction meant that Williams was considered a prohibited person going forward, and he was no longer allowed to possess or purchase a firearm.

Williams first tried challenging the statute in question back in 2017 and was denied, but applied for a re-hearing after the Supreme Court issued its decision in Bruen last year. This time around, in a case argued by 2A attorney Joshua Prince and supported by the Firearms Policy Coalition,  U.S. District Judge John M. Younge applied the Court’s text, history, and tradition test to the Williams case, as well as the Third Circuit’s decision in Range v. Garland, and found that Williams cannot be denied access to his right to keep and bear arms as a result of a non-violent misdemeanor conviction, even if it was punishable by years behind bars.

The Government has not met its burden in proving that the prohibition on Plaintiff’s possession of a firearm due to his DUI conviction is consistent with historical firearms regulations.

Finding a historical tradition of similar firearms regulations “requires that the government identify a well-established and representative historical analogue, not a historical twin.”

A modern regulation that would not have been contemplated during the Founding Era can be found relevantly similar to then-existing regulations by considering “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.

That federal law has, over the past century, allowed for the disarmament of certain types of convicted criminals does not satisfy the constitutional issues raised by applying Section 922(g)(1) to all convictions punishable by more than a year of imprisonment.

Instead, the Court must consider more longstanding limitations on firearm possession to “demarcat[e] the scope of [the] constitutional right.”

The historical firearms regulations provided by the Government are not sufficiently analogous to the case considered here to satisfy its burden.

Younge noted that while he remains “quite concerned about the prospect of granting access to firearms to persons who have demonstrably abused alcohol”, he remains unconvinced that “the general dangerousness of drunk driving and of combining firearm use and alcohol consumption establishes that DUIs must therefore be considered sufficiently analogous to historical examples of ‘dangerous’ conduct that have previously served as grounds for disarmament.”

Younge acknowledged the government’s citing of laws that prohibited the carrying of firearms while intoxicated, but argued that none of those regulations “allude to disarmament lasting beyond the individual’s state of intoxication, and none provided for permanent disarmament, as Section 922(g)(1) does.”

I agree with Younge that drunk driving is a serious concern, and not something that should be easily dismissed, but the fact is that Williams wasn’t barred forevermore from getting behind the wheel of a car because of his misdemeanor conviction. He can obtain a driver’s license and purchase a vehicle despite his DUI conviction that’s now nearly 20 years old, but he can’t legally purchase or possess a firearm. That’s a punishment that doesn’t fit the crime, as far as I’m concerned.

I’m sure the DOJ will appeal this case to the Third Circuit, but given their decision in Range it’s unlikely that Merrick Garland is going to get the response he’s looking for from the appellate court. By the time Williams v. Garland gets to SCOTUS the justices will have had a chance to weigh in on Bryan Range’s case, and if the Court does adopt a “dangerousness” standard for depriving individuals of their Second Amendment rights in Rahimi, then both Range and Williams have an excellent chance of having the lower court decisions in their favor approved by a majority of Supreme Court justices as well.

There’s a subset of people in the U.S. who hate the idea of RKBA and the Supreme Court’s rulings and will do anything possible to sabotage them

Federal Judge Declares No Right to Acquire a Gun

If we possess a right to keep and bear firearms, it stands to reason that we must also have the right to acquire one, but according to a federal judge in Colorado no such right exists.

U.S. District Judge John L. Kane, an 86-year-old appointee of Jimmy Carter back in 1977, made the eyebrow-raising decision in a case known as Rocky Mountain Gun Owners v. Polis, which challenges Colorado’s newly-enacted three-day waiting period on all gun sales. Kane denied the group’s request for an injunction that would have halted enforcement of the waiting period while the litigation continues, ruling the plain text of the Second Amendment only covers the right to keep and bear a firearm, not to purchase or acquire one for lawful purposes.

Plaintiffs contend that the words “keep” and “bear” in the Second Amendment are implicated by the waiting period required by the Act. In Heller, the Supreme Court examined the “normal meaning” of those words at the time of the Nation’s founding, reviewing definitions from contemporaneous dictionaries. As the Court explained, the 1773 edition of Samuel Johnson’s Dictionary of the English Language “defined ‘keep’ as, most relevantly, ‘[t]o retain; not to lose,’ and ‘[t]o have in custody.’”.

 The Court then turned to the word “bear” and determined that it means to “carry.” The Court clarified that, when “bear” is “used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose—confrontation.” So, putting all the pieces together, the Court found that the text of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”

From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered. Still, Plaintiffs attempt to equate the words “obtain” and “possess.” But these terms are not equivalent. To “keep,” under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, “hav[ing] weapons” indicates the weapons are already in one’s possession, not that one is receiving them.

So you have the right to possess a firearm but not the right to obtain one? Kane’s reasoning would leave the door open for all kinds of restrictions on the acquisition of arms. Why not a six-month waiting period? How about a $500 administrative fee for every firearm purchase, or mandating purchasers come up with a half dozen character references before a gun can be sold. Taken to its extreme, Kane’s position would leave open the possibility of a complete and total ban on gun sales. It’s ridiculous to separate the right to obtain a firearm with the right to keep and bear it, but that’s exactly what the judge did here.

Kane went on to say that even if commercial sales of firearms are protected by the Second Amendment’s language, Colorado’s waiting period is likely to withstand court scrutiny because there were no “Guns-R-Us” outlets at the time the Second Amendment was ratified. It could take days, weeks, or even months for a would-be gun owner to acquire a firearm while they waited for a shipment of muskets to be delivered to their nearest city or town. Of course, there was no law requiring people to wait before purchasing a firearm if one was readily available, nor were there any prohibitions on private transfers of arms. If your neighbor had a fowling piece that you wanted to purchase, you could walk or ride to his farm and make a trade or a cash transaction without the possibility of punishment from the state.

Further, says Kane, though there aren’t any statutes in the historical record that mirror Colorado’s modern waiting period, there are some old laws that he believes are a close enough analogue to allow the state’s three-day waiting period to pass muster; laws forbidding the carrying of firearms while intoxicated.

Perhaps the state could impose a more narrowly tailored requirement, but that is not the inquiry here. The intoxication laws prevented all individuals from becoming intoxicated and engaging in the prohibited conduct. They did not apply only to those people who would have certainly used a firearm irresponsibly while intoxicated. Despite Plaintiffs’ arguments, the “how” and the “why” of the intoxication laws and the Waiting-Period Act are sufficiently similar to demonstrate that the Act is consistent with the Nation’s historical tradition of firearm regulation.”

The purpose of the waiting period, according to Colorado’s legislature, is to “help prevent impulsive acts of firearm violence, including homicides and suicides.” According to Kane, because the ostensible reason for the waiting period is similar to the rationale on historical prohibitions against carrying while under the influence, that’s enough to make the two laws analogous. Of course, under that theory, virtually any gun control measure could be deemed a part of the historical tradition, so long as lawmakers contend that its purpose is to prevent “impulsive” acts of gun violence.

If the majority in Bruen believed that opinion would put a stop to the Second Amendment shenanigans in the lower courts, it should be clear to them by now that is most certainly not the case. We’ve seen judges declare that commonly owned arms like semi-automatic rifles are not protected by the Second Amendment, wide swathes of public spaces can be deemed “sensitive” and off-limits to lawful carry, and the right to keep and bear arms does not encompass the right to obtain one.

Each of these decisions is a gross misreading of Bruen as well as a green light for fundamental infringement on our Second Amendment rights, but until SCOTUS intervenes these abuses will continue.

‘Like A Machine Gun’ Isn’t A Machine Gun

Ever since Las Vegas, bump stocks have been horrifically demonized. Granted, the Las Vegas shooting was horrific enough that it shouldn’t surprise us that it did.

Soon after, the ATF reversed their decision that they weren’t machine guns.

That reversal came at the direction of then President Donald Trump. He did that, at least in part, to cut the legs out of an effort in Congress that would have gone a lot further than bump stocks and binary triggers. It could have screwed up any trigger modifications for any reason.

Regardless of the reason, though, the ATF actually overstepped their authority, so it’s not surprising that it triggered a lawsuit.

Now, it’s headed to the Supreme Court and Elie Mystal at The Nation has thoughts.

On Friday, the Supreme Court agreed to hear another gun case. That alone should make people hide under their desks at school, because at this point in our bloody republic, every time the Supreme Court decides to entertain the gun lobby, more children are likely to die.

The case involves a challenge to the federal ban on “bump stocks.” Bump stocks are a modification that can be attached to semiautomatic rifles to make them perform as fully automatic weapons. A shooter pulls the trigger to fire the weapon, and the bump stock uses the recoil from that action to pull the trigger again and again, resulting in a near continuous rate of fire, just like a machine gun.

The issue is “like a machine gun” and “machine gun” isn’t the same thing in the least. Especially not in the eyes of the law.

The ATF doesn’t have broad authority to just create law. It has the power to interpret laws passed by Congress, but it can’t just make up law as it goes.

Otherwise, ATF Director Steve Dettelbach could just mandate the assault weapon ban he’s said he wanted.

He can’t do that because there’s nothing in the law that allows for that.

What the ATF did with bump stocks, though, is not much different from a mandated assault weapon ban because the justification used doesn’t actually fit with bump stocks.

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Gun rights groups to seek Supreme Court ruling on assault weapons

Gun rights advocacy groups say they intend to ask the U.S. Supreme Court to review the state’s assault weapons ban after a federal appeals court on Friday refused to block enforcement of the law.

In a statement Saturday, the Illinois State Rifle Association said it was not surprised by the 7th Circuit panel’s 2-1 decision, which said plaintiffs in the consolidated cases had not met their burden to show they were likely to win in a constitutional challenge to the law.

“It has always been and is our intent to take our case to the U.S. Supreme Court where we believe we can get a favorable ruling for law-abiding gun owners in Illinois,” the organization said. “We will continue to stand up for the Second amendment and Illinois law-abiding gun owners and against our anti-gun Governor Pritzker and General Assembly.”

In addition, the National Foundation for Gun Rights – which provided attorneys involved in the consolidated case – said it will appeal as well.

“Semi-auto bans like Illinois’ strike right at the heart of the Second Amendment and are completely inconsistent with multiple Supreme Court precedents,” the organization said in a statement. “We will keep fighting and are preparing to appeal this outrageous ruling.”

The 7th Circuit’s decision on Friday left in place the state’s assault weapons ban as well as local bans enacted by Cook County and the cities of Chicago and Naperville.

The state of Illinois and the city of Naperville both enacted their bans in response to a mass shooting last year at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized.

Authorities say the alleged shooter in that incident used a Smith & Wesson M&P 15 semiautomatic rifle and carried three 30-round magazines. That type of gun and magazine are now banned under the state’s assault weapons law.

The majority opinion from the 7th Circuit focused on whether that type of weapon, or others like it, were protected under the Second Amendment.

That opinion, written by Judge Diane Wood and cosigned by Judge Frank Easterbrook, drew a distinction between the types of “bearable” arms commonly used for self-defense and the type of weapons typically reserved only for military uses.

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While this is pretty much nothing more than the 7th poking their finger in the eye of SCOTUS, the sooner this gets to there, so we know what the words of the 2nd amendment mean to the courts, and thus to law, the better.

Seventh Circuit Overturns Injunction Against Illinois “Assault Weapons Ban”, Says AR-15s Aren’t Protected Arms

On the face of it, Friday’s decision by the Seventh Circuit Court of Appeals to overturn an injunction against enforcement of Illinois’ recently enacted ban on “assault weapons” and “large capacity” magazines doesn’t change circumstances on the ground. The three-judge panel that issued today’s decision had previously stayed U.S. District Judge Stephen McGlynn’s injunction while the state appealed, so the law has been in effect throughout litigation.

Still, the 2-1 decision does matter, both because it provides an opportunity for some or all of the plaintiffs to appeal on an emergency basis to the Supreme Court and because it will undoubtedly be cited by other anti-gun judges around the country, including those on the Ninth Circuit panel hearing the appeal of Judge Roger Benitez’s decision striking down California’s ban on “assault weapons.”

I won’t have a chance to do a deep dive into the opinion until this weekend, but one thing immediately stuck out to me as I was giving a quick look-over. The three-judge panel concluded that AR-15s (and presumably semi-automatic rifles in general) are not protected by the Second Amendment because they’re too close to machine guns:

Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no.

We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude). Indeed, the AR-15 is almost the same gun as the M16 machinegun. The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways. 

Both weapons share the same core design, and both rely on the same patented operating system.

If the distinction between semi-automatic and select fire is enough to render modern sporting rifles outside the scope of the Second Amendment, according to the Seventh Circuit, then what does that mean for semi-automatic handguns? Are they too close to machine guns to be protected as well? Note this passage from the majority opinion:

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon.

You can (illegally) attach an auto-sear or a switch to many semi-automatic handguns as well. Is the Seventh Circuit suggesting that the most popular make of handguns, undoubtedly in common use for lawful purposes, is also beyond the Second Amendment’s protection?

It sure sounds like it to me, though the panel didn’t have to address that issue since the state hasn’t attempted to ban the majority of semi-automatic pistols, only a subset it deems to be “assault weapons”. This is actually something that gun control activists have been arguing for a couple of years now, both in civil litigation and in lobbying the Biden administration to reclassify many semi-automatic firearms as machine guns under the National Firearms Act.

If the Seventh Circuit’s twisted logic is adopted or allowed to stand by the Supreme Court, not only would the most popular style of rifle be implicated, but the vast majority of handguns that are in the hands of lawful gun owners across the country as well. The 2-1 decision is bad enough, but the long term implications will be even worse unless and until SCOTUS makes it clear that the Seventh Circuit got it wrong.

Why this is even a question is what’s amazing;
“Unrealized” gains – emphasis on the word unrealized –are not ‘income’ since they haven’t been paid or credited.
This is simply the goobermint exercising power over people. They don’t need our money, they print it at leisure. Taxing keeps the people from using for their own purposes.

The stakes are high as Supreme Court considers this obscure, unconstitutional tax

Word games are usually fun. They become less fun, however, when the government uses them to levy unjust and unconstitutional taxes from the citizenry.

The Supreme Court is set to determine whether Congress , for the purposes of taxation, may classify unrealized capital gains as “income.” Should the justices rule in Moore vs. United States rule against the plaintiffs, the federal government effectively would gain seismic new powers to tax almost any property from which it hopes to extract revenue. This would conflict directly with the Constitution ’s plain text and original meaning.

Charles and Kathline Moore, the case’s plaintiffs, have challenged an obscure provision in 2017’s landmark Tax Cuts and Jobs Act. This provision created a “mandatory repatriation tax” (MRT), which subjects Americans who own stock in foreign companies to a one-time tax on some of those companies’ earnings over the previous 30 years. Congress classified it as an “income” tax.

The Moores in 2006 purchased a 13% share of an Indian company, KisanKraft, that provides farming equipment to impoverished regions. Since then, they never have received any dividend or other form of compensation or profit from this investment. They have seen no “income.” Nonetheless, they found themselves subjected to the MRT.

“The Moores were … taxed as if KisanKraft … had … distributed to the Moores a dividend worth 13% of KisanKraft’s total earnings since 2006,” the Cato Institute explains in its amicus brief.

Beginning with dictionary definitions, the government’s arguments wilt. “Income has a plain and longstanding meaning: for something to be ‘in-come,’ it must, in some way, ‘come in,’” as the Chamber of Commerce writes. Moreover, early-1900s legal authorities believed “income” necessarily implied realization of gains. Put differently, “income” by nature requires the taxable money to become separated from the capital asset; an asset’s increased value cannot alone suffice. This interpretation corresponds with 19th-century caselaw, discussions surrounding the 16th Amendment’s ratification, contemporaneous state statutes, the Revenue Act of 1913 (which instituted the newly constitutional income tax), and subsequent Supreme Court precedent.

The Framers worried much about abusive federal taxation, and the Constitution originally disallowed Congress to institute any direct tax not apportioned based on state population. The 16th Amendment (ratified in 1913) exempted income taxes from this restriction. Far from a blanket mandate, this amendment’s drafters and ratifiers intended it as a defined carveout to authorize a specific sort of tax.

Only if the Supreme Court adopts the government’s bastardized definition of “income” can the non-apportioned MRT stand.

Further, the MRT required U.S. shareholders to pay tax on foreign companies’ earnings dating back to 1987. Demanded a percentage of 30-year-old earnings (which, to be clear, are better labeled simply as “private property”) resembles more a property tax, taking, or a confiscation than a traditional tax.

Indulging congressional whim by expanding this definition radically (as the U.S. Court of Appeals for the Ninth Circuit did when it ruled against the Moores) greatly increases the federal government’s de facto taxation powers. “Without the guardrails of a realization component, the federal government has unfettered latitude to redefine ‘income’ and redraw the boundaries of its power to tax without apportionment,” the outnumbered Ninth Circuit judge Patrick Bumatay argued in dissent.

Indeed, prominent politicians such as President Joe Biden already have advocated an unrealized capital gains tax; the president’s latest budget proposal featured one on wealth exceeding $100 million. A mistaken Supreme Court decision would feed this effort and far worse ones.

“The powers delegated by the proposed Constitution to the federal government are few and defined,” James Madison stated in Federalist No. 45.
However, if the Supreme Court in Moore rules that Congress — simply by adopting erroneous interpretations of legally settled terminology — can arrogate to itself vast authorities, an important constitutional guardrail against tyranny would effectively have no force.

Supreme Court Roundup: Not all History is Created Equal

In a previous post, I wrote about the attempt by Merrick Garland’s Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling “text and history” interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass’n v. Bruen. Rahimi is the case challenging the facial constitutionality of 18 U.S.C § 922(g)(8), a federal statute that disarms any individual subject to a state domestic violence restraining order (DVRO). In that post, I explained how the Government is contending, contrary to Bruen, that the established rule is that “Congress may disarm persons who are not ‘law-abiding, responsible citizens.'” That statement is not just incorrect, but a serious distortion of what Heller actually said.

As it turns out, the Government’s recently filed reply brief contains several other important errors about the fundamental principles to be applied when assessing historical analogue laws, which are central to Bruen‘s methodology.  Let’s start with an easy one.  The Government takes Rahimi to task for allegedly asserting that Bruen limits courts to historical evidence from “near the time of ratification.” Here’s what Rahimi’s brief actually said, after discussing attempts by some courts to boost some dicta in Heller to the level of substantive constitutional law:

[T]he original meaning of the Second Amendment must be determined exclusively using the text and the historical tradition of firearm regulations adopted near the time of ratification—not with assumptions or dicta. 

That statement by Rahimi was contrasting the use of actual historical traditions to determine the meaning of the Second Amendment, as opposed to twenty-first century dicta, or assumptions by lower courts regarding what those dicta meant. It was not an attempt to fine tune the period of time with precision.

Yet Rahimi is correct that the time around the adoption of the Bill of Rights must be the principal period to determine the original public meaning of its provisions.  Bruen quoted Heller to the effect that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” before noting that “The Second Amendment was adopted in 1791….”

The Bruen opinion also quoted approvingly a dissent by then-Judge Kavanaugh: “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” The six-person Bruen majority also relied on a dissenting statement by Chief Justice Roberts, in Sprint Communications v. APCC Services (2008), that “The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787].” The same is true of the Bill of Rights, adopted in 1791.

The Government claims in its brief that “the Court has consulted post-ratification evidence—extending ‘through the end of the 19th century’—’to determine the public understanding of’ the Amendment.” But as Bruen notes, another case made clear that this evidence was reviewed “only after surveying what [the Court] regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.” Bruen continues, “In other words, this 19th-century evidence was ‘treated as mere confirmation of what the Court thought had already been established.'” See also Justice Barrett’s concurrence in Bruen, quoting Espinoza v. Montana Dept. of Revenue (2020) (a practice that “arose in the second half of the 19th century … cannot by itself establish an early American tradition” informing our understanding of the First Amendment); Mark W. Smith, Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868, Harvard Journal of Law & Public Policy Per Curiam (Fall 2022).

So Rahimi is right.  A court must look principally to the Founding era to determine the meaning of the Second Amendment.  It can look at later evidence only for confirmation, not to change the original understanding.

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Texas Granted Temp Restraining Order Against Biden Admin Preventing Removal Of Razor Wire At Border.

Judge Alia Moses of the U.S. District Court for the Western District of Texas ordered the Biden Administration to stop cutting the razor wire installed on the Texas border to deter illegal migrant crossings.

The temporary restraining order is in place “until the parties have an opportunity to present evidence at a preliminary injunction hearing before the Court.”

The order stops the Biden administration from (property refers to the razor wires):

  • Removing the property from its present location for any reason other than to provide or obtain emergency medical aid
  • Concealing the property in any way
  • Offering the property for sale, rent, or use to any person, business, or entity
  • Selling or otherwise transferring the property in whole or in part
  • Encumbering the property in any way
  • Scrapping the property
  • Disposing of the property in any way
  • Dissembling, degrading, tampering with, or transforming the property in any way for any reason other than to provide or obtain emergency medical
  • Failing to take all steps necessary to protect the property against damage or loss of any kind

Moses granted the restraining order for three reasons.

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New York City Gun Restrictions Ruled Unconstitutional

Local laws allowing New York City officials to subjectively deny gun possession permits violate the Second Amendment, a federal judge ruled Tuesday.

U.S. District Judge John P. Cronan struck down portions of a New York City law governing when licensing officials may deny permits to own rifles, shotguns, and handguns. Cronan determined that allowing the City to deny licenses to applicants who are “not of good moral character” or when they feel “other good cause” exists allows too much discretion and does not fit with how America historically regulated guns. He found that makes them unconstitutional under the Supreme Court’s latest Second Amendment test.

“This case is not about the ability of a state or municipality to impose appropriate and constitutionally valid regulations governing the issuance of firearm licenses and permits,” Judge Cronan wrote in Srour v. NYC. “The constitutional infirmities identified herein lie not in the City’s decision to impose requirements for the possession of handguns, rifles, and shotguns. Rather, the provisions fail to pass constitutional muster because of the magnitude of discretion afforded to City officials in denying an individual their constitutional right to keep and bear firearms, and because of Defendants’ failure to show that such unabridged discretion has any grounding in our Nation’s historical tradition of firearm regulation.”

The decision, which is likely to be appealed by city officials, may result in more residents of the nation’s largest city being able to legally arm themselves. It also represents the continuing fallout from a landmark gun case ruling handed down by the Supreme Court last year.

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Why Biden Wants SCOTUS To Rule Agains Rahimi

I’m going to start this off by saying what we almost have to say when talking about the Rahimi case, that the plaintiff in this case is not a good person. By all indications, he’s a terrible human being and not someone I’d want as part of my life.

But, our rights don’t exist only for those we approve of. They have to be protected for everyone, regardless of whether they’re a good person or not.

And Zachey Rahimi is such a person.

Now, his case is going to the Supreme Court, and a lot of people are blatantly misrepresenting it. They’re saying it’s about keeping domestic abusers disarmed, all while ignoring that the case doesn’t try to take on laws that rule those convicted of such offenses are prohibited from owning guns.

Because Rahimi wasn’t convicted of any such thing when he was charged with illegally possessing a gun. He just had a restraining order against him.

Over at The Federalist, John Lott gets into the real reason the Biden administration is fighting this so hard.

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