Category: Courts

Old gun controls that were constitutionally repealed are not precedents for modern gun control

This week amicus briefs were filed in United States v. Rahimi, the only Second Amendment merits case currently before the Supreme Court. The docket page for the case is here. I will be blogging later about various briefs in the case. This post describes the amicus brief that I filed, available here.

The case involves the constitutionality of 18 U.S.C. sect. 922(g)(8), which imposes a federal prison sentence of up to 15 for persons who possess a firearm while subject to certain state-issued restraining orders. The amici are several law professors, including the VC’s Randy Barnett, the Second Amendment Law Center, and the Independence Institute, where I am Research Director. My co-counsel on the brief was Konstandinos T. Moros, of the Michel & Associates law firm, in Long Beach, California.

The bottom line of the brief is that subsection 922(g)(8(C)(i) does not infringe the Second Amendment; it restricts the arms rights of individuals who have been found by a judge to be a “credible threat” to others. In contrast, subsection 922(g)(8(C)(ii) does infringe the Second Amendment, because it does not require any such judicial finding.

The brief addresses the question of “who” may be restricted in the exercise of Second Amendment rights; the brief takes no position on questions of “how”–such as what due process is required, or whether the severity of 922(g)(8) ban is comparable to historic laws restricting the exercise of arms rights.

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Judge Issues Injunction Blocking MD’s Unconstitutional Carry Restrictions

After the United States Supreme Court ruled that the Second Amendment protects the right of law abiding citizens to carry a firearm in public, a Maryland court found it was “self-evident” that Maryland’s carry permitting regime was also unconstitutional. Maryland then followed New York and New Jersey in overhauling their carry laws by effectively declaring the entire state to be a so-called “sensitive place” through the passage of S.B. 1.

And, just like in New York and New Jersey, NRA filed suit as the ink from Governor Moore’s signature was drying on bill.

On September 29th, in a 40-page opinion, a federal judge enjoined three portions of S.B. 1, from taking effect.

The biggest win was stopping the “private building consent rule,” which declares all private property that is open to the public to be a prohibited place—unless the property owner expressly allows individuals to enter the premises with a firearm.

These private building consent restrictions were cooked up by anti-Second Amendment advocates to effectively nullify the Bruen decision. They are the heart of the states’ response to Bruen. And courts are having nothing to do with them. Today’s ruling was the fourth on enjoining these private consent rules from taking effect.

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Assault victim sues Loudoun County Public Schools for $30 million.

The daughter of Scott Smith who was 15 at the time she was sexually assaulted by a boy in the girl’s bathroom has filed a lawsuit against the school system for $30 million.

A teenage girl who was sexually assaulted in a Virginia high school bathroom has sued Loudoun County Public Schools, alleging that school officials failed to heed warning signs about her attacker and responded to her May 2021 assault by trying to cover it up.

The teenager, who filed the lawsuit under the pseudonym “Jane Doe” along with her parents, was 15 years old when a younger, male student in a skirt assaulted her in a girls’ bathroom at Stone Bridge High School in Ashburn on May 28, 2021.

The incident garnered national attention. Conservatives protested a policy in Loudoun County schools — put in place after the assault — that allowed transgender students to use bathrooms matching their gender identity. Meanwhile, outraged parents in Loudoun County questioned why the perpetrator was moved to a different school, where he assaulted a second female student months later.

The story is a lot more complicated than this simple summary can convey. The girl had previously had some kind of sexual encounter with the boy in question in a school bathroom. This rendezvous was also planned but the incident became aggressive and the girl wanted it to stop.

Also, while it’s true the trans bathroom policy wasn’t in place at the time, it’s also true that the day of the incident the first report back to the school board was that the assault might be connected to the forthcoming bathroom policy. In other words, the very things “conservatives” protested was also the first thing school officials were worried about.

The boy’s mother has since claimed he was not trans or non-binary but no one denies he was wearing a skirt to school that day. Former school superintendent Scott Ziegler told the NY Times in August that at a meeting on the day of the assault the school’s principal told him, “He runs with the drama crowd, and you know how the drama crowd can be. They’re attention-seeking. And he’s been experimenting with different looks.” So, yes, he wore skirts but “he has never come out to the school as either nonbinary or transgender.” More on the lawsuit.

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2A says ‘right to keep and bear arms’
That’s anything to do with weaponry

Analysis: Pistol Brace Ruling Implies Second Amendment Protects AR-15s, Ammo Mags, and Silencers

“[T]he Court finds that braced pistols regulated under the Final Rule are commonly used by law-abiding citizens for lawful purposes.”

That may be the most influential finding in Judge Reed O’Connor’s decision enjoining the ATF’s pistol brace rule. It strikes at a key part of the fight over gun and accessory bans across the country. And how Judge O’Connor reached his conclusion provides new insight into the threshold other courts may employ to determine whether the Second Amendment protects a banned item.

Working off of Supreme Court precedent in 2008’s District of Columbia v. Heller, 2010’s McDonald v. Chicago, and 2022’s New York State Rifle and Pistol Association v. Bruen, Judge O’Connor established the test for whether the Constitution protects an arm is whether it’s in lawful common use or not. And he said the Court had already determined modern handguns fit the bill.

“A weapon is in ‘common use’ rather than ‘dangerous and unusual’ if it is ‘commonly possessed by law-abiding citizens for lawful purposes today,’” he wrote. “The relevant inquiry under this standard is the current total number of a particular weapon that is in lawful possession, ownership, and circulation throughout the United States. As a per se matter, semiautomatic pistols are commonly used weapons for lawful self-defense purposes across the United States today.”

From there, he found adding a brace to a pistol “does not somehow alter that status and effectively strip these pistols of their Second Amendment protection.” Then he argued the ATF’s own estimate for how many braced pistols have been legally purchased over the years directly undercut its argument they could be banned or significantly restricted.

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Karn v. U.S. State Department found that computer code is protected speech. But this judge decided that, because cad files can communicate with the machines directly, they are not protected…really.

Ahhhh. So does that mean ASCII files are no longer free speech after some judge realizes they can be sent directly to an inkjet printer?

These old, activist judges will learn quickly that you can’t stop the signal.

Federal Judge Rules Gun CAD Files are Not Protected Speech

A federal judge in New Jersey ruled that computer code that lets someone produce firearms is not protected speech under the First Amendment.

In the case, Defense Distributed v. Platkin, Federal District Court Judge Michael A. Shipp dismissed the lawsuit that Defense Distributed and the Second Amendment Foundation ( SAF) brought against New Jersey’s law banning the sharing of gun computer-aided design files (CAD). Even before the law was passed, New Jersey issued a cease-and-desist letter to the company in early 2018, demanding it stop publishing firearms information that New Jersey residents could access. Defense Distributed has been posting CAD files on its Def Cad website that allow users to print firearms using 3D printers. New Jersey claimed publishing these files broke the state’s public nuisance and negligence laws.

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Judge halts Maryland’s ban on carrying guns in places selling alcohol and near demonstrations

A federal judge on Friday blocked several restrictions Maryland lawmakers tried to impose on the ability to carry a firearm, while leaving other gun control measures in place.

Judge George L. Russell III, an Obama appointee, issued a preliminary injunction halting Maryland’s new restrictions banning the carrying of a gun in places selling alcohol, in private buildings or property without owner’s consent and within 1,000 feet of a public demonstration.

He reasoned there was no historical basis to leave those rules in place in light of the Second Amendment challenge brought by a group of plaintiffs and gun rights groups. It was filed against Maryland’s Gun Safety Act of 2023 that is set to take effect Sunday.

Judge Russell analyzed the restrictions following the Supreme Court’s ruling last year that upended New York’s license-to-carry measure, in which the state required people to show a proper need to carry a gun. The majority of the high court said any gun control measure must be consistent with the nation’s tradition and history back to its founding.

Using that precedent as a guide, Judge Russell upheld state bans against the carrying of a gun in museums, health care facilities, state parks, mass transit, school grounds, government buildings, casinos, racetracks, amusement parks and stadiums. He said there were traditions showing regulation of guns in those places.

Maryland lawmakers passed the law after the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen, which held tat carrying a pistol in public is a constitutional right. The high court’s decision has led to many gun control measures being upended across the country as lower courts try to find historical analogs when weighing a gun control measure against a Second Amendment challenge.

Magazines are as much a part of a gun as ammo and other accoutrements, and are just as protected from goobermint restriction. The 2nd amendment is not an ‘allowance’, or ‘permission’ to keep and bear arms.
It restricts goobermint, not the people.
Judges, legislators and bureaucraps who think otherwise are nothing but clear domestic enemies of the Constitution, which the Bill of Rights is part.

BLUF
Nevertheless, it has become abundantly clear that whether or not a judge is sympathetic to the idea that magazines are “arms” is the most relevant dividing line in this hotly contested slice of Second Amendment jurisprudence. It will undoubtedly be the hinge point in many future rulings as these bans continue to be litigated.

Analysis: Judges Diverge on Whether Second Amendment Protects Ammo Magazines

Are ammunition magazines constitutionally protected arms? Or are they simply accessories incidental to the weapons covered under the Second Amendment?

Different judges have reached wildly different conclusions since the Supreme Court’s decision in NYSRPA v. Bruen last June, particularly regarding the so-called large capacity magazines often banned in blue states. It is no surprise then that the outcomes of the various legal challenges taking aim at those prohibitions have primarily been settled depending on which side a particular judge falls on this very question. Two major decisions handed down in the last week demonstrate this.

Last Friday, U.S. District Judge Roger Benitez struck down California’s ban on ammunition magazines capable of holding more than ten rounds.

“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

Just three days later, U.S. District Judge Mary Dimke upheld Washington state’s nearly identical magazine ban.

“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right,” Judge Dimke wrote in Brumback v. Ferguson.

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Whamm, Zwap, Bam! Lawsuits Already Filed Over California’s Newest Gun Control Laws
GOA, GOF join Gun Owners of California in suit challenging California’s brand new anti-concealed carry law

Senate Bill 2 by Senator Anthony Portantino’s (D–Burbank), which is California’sresponse bill to New York Rifle and Pistol Association v. Bruen, was signed into law Tuesday. SB 2 enacts numerous “sensitive locations” where guns are banned, and changes requirements to obtain a concealed carry license. SB 2 was also sponsored by Gov. Gavin Newsom and Attorney General Rob Bonta, and simply put illegally imposes restrictions on those seeking a California Concealed Carry Weapons (CCW) permit.

Notably, Newsom, Bonta and Portantino know they are imposing restrictions to those applying for CCWs, when virtually no crimes are committed by CCW holders, who are required to pass background checks by County Sheriffs, and take gun safety courses.

Remarkably, CCW permit holders don’t commit mass shootings, they stop them. We’ve never had a comment or even a reaction from Gov. Newsom, AG Bonta or Sen. Portantino on this fact. Instead they obsess on legal gun owners, seeking ways to limit Second Amendment protections.

Gun Owners of America and the Gun Owners Foundation just announced:

Gun Owners of America (GOA) and the Gun Owners Foundation (GOF) teamed up with Gun Owners of California (GOC) to promptly serve California AG Rob Bonta in a lawsuit challenging portions of SB 2, a bill that anti-gun Governor Gavin Newsom signed into law Tuesday. This unconstitutional legislation was passed in response to the Bruen decision (which ended the state’s draconian “may-issue” policy), and among other provisions would:

    • Enact highly restrictive “sensitive locations” where concealed carrying would be prohibited, including all private property unless expressly permitted by the owner;
    • Require 16 hours of training;
    • And significantly increase the costs associated with securing a permit.

This suit specifically goes after the “sensitive locations” provision of the law.

So that is strike one.

This is strike two.

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CRPA, SAF, GOA and Others Jointly File Federal Lawsuit Challenging California’s Carry Restriction Law.

Multiple gun owner’s rights advocacy groups and individuals have joined together and filed a Second Amendment challenge to Senate Bill (SB2) in the United States District Court. The lawsuit is known as May v. Bonta and you can see the filings so far here. We are already in contact with the state’s lawyers, are working out a briefing schedule, and have a tentative hearing date on a motion for preliminary injunction on December 4, 2023.

SB2 designates much of the state as a “sensitive place” and thereby eliminates those places where law-abiding gun owners who have qualified for and been issued a permit to carry a firearm by law enforcement can carry their approved firearms. So, SB2 effectively makes a permit useless. SB2 also makes it much more time-consuming and costly to obtain a concealed carry permit.

SB2 is a vindictive legislative response designed to get around the Supreme Court’s historic Bruen decision from 2022. Bruen held that a permit to carry a firearm in public to defend yourself and your family is a right, not a privilege. As a result, California and other states that previously limited access to these permits had to start issuing them, and the number of permit holders in California has greatly increased.

The Bruen decision also clarifies that governments cannot limit the usefulness of these permits by over-designating places as “sensitive,” where carrying a firearm, even with a permit, would be prohibited. Governor Newsom and the anti-gun-owner legislators who voted for this law are trying to do exactly that. They know this bill will only affect lawful gun owners because they are the only ones who pass the qualification process to get a permit.

SB2 does nothing to stop gun violence by criminals. And in fact, data from several states demonstrates that Americans with concealed carry permits commit crimes at extraordinarily low rates, as the lawsuit explains. Recently, a Hawaii district court relied in part on this same data, which was presented to it by some of the same associations now challenging SB2, to conclude that Hawaii’s similar law could be enjoined.

Designating so many places as gun-free zones is a retaliatory tactic coordinated by well-financed national gun control advocacy that is being used in states hostile to gun ownership to make the right to defend yourself in public useless. California follows in the footsteps of Hawaii, New York, New Jersey, Maryland, and Hawaii.

Federal courts in those other jurisdictions have already enjoined laws like SB2. These rulings include, but are not limited to: Antonyuk v. Hochul, No. 1:22-CV-0986 (GTS/CFH), 2022 U.S. Dist. LEXIS 201944 (N.D.N.Y. Nov. 7, 2022); Koons v. Platkin, No. CV 22-7463 (RMB/AMD), 2023 WL 3478604 (D.N.J. May 16, 2023); and Wolford v. Lopez, No. CV 23-00265 LEK-WRP, 2023 WL 5043805, at *1 (D. Haw. Aug. 8, 2023).

It is an open secret in the hallways of the Capital that Newsom hopes to pass so many gun control laws that Second Amendment advocacy groups cannot keep up. But those groups have responded by forming an unprecedented strategic partnership and coordinating their efforts to fight back.

We now have a strong coalition of gun rights groups fighting against these laws. And when we win, the state will be forced to pay our legal bill.

Pro-Second Amendment groups joining in a lawsuit against Newsom and SB2 are well known in the state, and many have been fighting against unconstitutional gun bans for decades. The coalition includes the California Rifle & Pistol Association, Gun Owners of California, Gun Owners of America, Gun Owners Foundation, and Second Amendment Foundation.

Each organization brings resources, members, donors, and expertise to this challenge. Newsom has unlimited tax dollars to battle for his unconstitutional laws in court and thinks that he can bankrupt us. But we have millions of gun owners who donate to support these challenges. When our elected officials refuse to uphold the law of the land and our Constitution, we are proud to hold that line for the people of California.”

The crown jewel of Newsom’s anti-Second Amendment campaign is his ploy to get a 28th Amendment passed that would gut the Second Amendment, including a ban on semi-automatic firearms. But 38 states would have to agree to that amendment, and 24 states have already filed amicus briefs in courts that urged those courts to strike down laws banning semi-automatic firearms commonly possessed by tens of millions of law-abiding gun owners. So, his constitutional amendment gambit, which insiders already recognize is a ploy to raise money and give him a platform to run his shadow campaign for president, is dead on arrival.

Judge Benitez destroys the 2.2 rounds per DGU lie once and for all

Over two years ago, I read through some court filings in Duncan v. Bonta, the lawsuit against California’s “large capacity” magazine ban. I was left scratching my head at a claim from the State of California in support of their magazine ban, that the average Defensive Gun Use (DGU) incident involves discharging only 2.2 rounds. The more I looked into it, the more obvious it became that this was unsubstantiated.

Since then, Duncan v. Bonta made a trip to the Supreme Court, got GVR’d after NYSRPA v. Bruen, and sent back down the judicial hierarchy to the US District Court for the Southern District of California. The district court published its decision last Friday, in which Judge Roger Benitez completely took apart the 2.2 rounds per DGU canard (PDF pages 26-33):

C. The Invention of the 2.2 Shot Average

…the State’s statistic is suspect. California relies entirely on the opinion of its statistician for the hypothesis that defenders fire an average of only 2.2 shots in cases of confrontation.

Where does the 2.2 shot average originate? There is no national or state government data report on shots fired in self-defense events. There is no public government database. One would expect to see investigatory police reports as the most likely source to accurately capture data on shots fired or number of shell casings found, although not every use of a gun in self-defense is reported to the police. As between the two sides, while in the better position to collect and produce such reports, the State’s Attorney General has not provided a single police report to the Court or to his own expert. 

Without investigatory reports, the State’s expert turns to anecdotal statements, often from bystanders, reported in news media, and selectively studied. She indicates she conducted two studies. Based on these two studies of newspaper stories, she opines that it is statistically rare for a person to fire more than 10 rounds in self-defense and that only 2.2 shots are fired on average. Unfortunately, her opinion lacks classic indicia of reliability and her two studies cannot be reproduced and are not peer-reviewed.

“Reliability and validity are two aspects of accuracy in measurement. In statistics, reliability refers to reproducibility of results.” Her studies cannot be tested because she has not disclosed her data. Her studies have not been replicated. In fact, the formula used to select 200 news stories for the Factiva study is incomprehensible. […]

For one study, Allen says she conducted a search of stories published in the NRA Institute for Legislative Action magazine (known as the Armed Citizen Database) between 2011 and 2017. There is no explanation for the choice to use 2011 for the beginning. After all, the collection of news stories goes back to 1958. Elsewhere in her declaration she studies mass shooting events but for that chooses a much longer time period reaching back to 1982. Likewise, there is no explanation for not updating the study after 2017.

[…] details are completely absent. Allen does not list the 736 stories. Nor does she reveal how she assigned the number of shots fired in self-defense when the news accounts use phrases like “the intruder was shot” but no number of shots was reported, or “there was an exchange of gunfire,” or “multiple rounds were fired.” She includes in her 2.2 average of defensive shots fired, incidents where no shots were fired. […] She does not reveal the imputed number substitute value that she used where the exact number of shots fired was not specified, so her result cannot be reproduced. […] For example, this Court randomly selected two pages from Allen’s mass shooting table: pages 10 and 14. From looking at these two pages (assuming that the sources for the reports were accurate and unbiased) the Court is able to make statistical observations, including the observation that the number of shots fired were unknown 69.04% of the time.

The foundation of the claim was not real data but “anecdata,” which don’t cover nearly as many incidents as actual police reports do. (Not every incident is reported, so even police data is incomplete.)

Second, the sampled news reports were randomly selected. It isn’t clear if there were any process safeguards to prevent cherry picking, and there is no transparency about the included incidents.

Third, the selected timeframes look arbitrary.

Fourth, as Judge Benitez points out, including zero-shot incidents will obviously bring the average down, so it’s questionable.

The most devastating critique is that the expert assigned an arbitrary number of shots fired when news stories didn’t include that crucial detail.

The Court is aware of its obligation to act as a gatekeeper to keep out junk science where it does not meet the reliability standard of Daubert v. Merrell Dow Pharmaceuticals, Inc. […] while questionable expert testimony was admitted, it has now been weighed in light of all of the evidence.

Using interest-balancing, the en banc 9th Circuit shamelessly rubber-stamped California’s infringement using this pathetic junk science. It’s gratifying to see interest-balancing tossed into the garbage alongside this junk science under the new Bruen standard.

Pushback: California county sued for using cellphones to track movements of church-goers

They’re coming for you next: Santa Clara county in California is now being sued by Calvary Chapel San Jose and its pastor Mike McClure for using without warrant the GPS data from the cellphones of the church’s members to track their movements without their knowledge.

On August 22, 2023, a lawsuit was filed by Advocates for Faith and Freedom on behalf of Calvary Chapel San Jose against Santa Clara County, California, for utilizing geofencing methods to spy on church members during the COVID-19 pandemic. Earlier this year, Santa Clara County imposed a $1.2 million fine against the church for not abiding by the State’s and County’s COVID-19 restrictions.

Santa Clara County utilized an investigative method known as geofencing. Geofencing is a technological tool the government uses to track people relative to their location and likely locations. This tool is typically used in police investigations of criminal activity and, in these instances, requires a warrant– which is not always granted.

The lawsuit complaint can be read here [pdf]. As it notes:

Unbeknownst to the public, Defendants embarked on an invasive and warrantless geofencing operation to track residents in the County. The Defendants used this tool under the auspices of researching so-called superspreader events and activities.

Geofencing is a location-based tool used by the government to track individuals through their cell phone data. This tool is generally used in police investigations of criminal activity and requires the government to obtain a warrant, which is limited in time and scope.

The Defendants specifically targeted Calvary Chapel San Jose (“CCSJ”) to demonstrate the church was a large superspreader. The County hoped to use this information in its ongoing state enforcement action against the church. To this day, the County cannot trace one COVID-19 case to the church.

The Defendants put multiple geofences around the church’s property so they could track when and where individuals were on the premises. This operation took place over a year with seemingly no oversight, boundaries, or limitations – meaning the Defendants could track churchgoers in the sanctuary, prayer room, or bathroom.

This type of expansive geofencing operation is not only an invasion of privacy but represents a terrifying precedent if allowed to go unaddressed. As it stands, the Defendants are effectively arguing that, as long as they call it research, any level of government can target and spy on any individual or group at any time for any duration, and, if they so choose, they can wield the collected data against said individuals or groups who oppose their orders. This is not just un-American; it is downright Orwellian. [emphasis mine]

The highlighted sentence is the bottom line. Despite imposing a $1.2 million fine against the church for continuing its regular meetings during the COVID lockdowns, the county has yet to document any evidence that the church’s defiance caused COVID to spread at all. If anything, the county’s illegal data-gathering proved it did not, unequivocally.

Of course, any rational person could have told the county this. The lockdowns did nothing to stop COVID, so there was no reason for the church to stop its Sunday services. In fact, the county’s attempt to forbid religious services (while allowing many other group activities to go on), its totalitarian fining of the church, and its illegal surveillance all strongly suggest that county officials had no interest in stopping COVID, but were actually implementing an anti-religious campaign to suppress religious expression.

The county can deny this accusation, but the evidence tells us it is true. Santa Clara County officials decided to use COVID as an excuse to squelch the religious freeom and first amendment rights of this church and its members. In doing so, it is also attempting to establish a precedent that will allow the government to spy on any citizen for as long as it wants, without warrant and for any reason, and then use that data to condemn that citizen.

Note too that the surveillance was without cause, and could not have gotten a warrant even if the county had tried. The church members were not committing any crimes by going to church. If anything they were simply exercising their first amendment rights, guaranteed from this kind of government interference by the Constitution itself.

The lawsuit demands nominal and compensatory damages as well as attorneys’ fees, claiming the county violated the church’s first and fourth amendment rights. I hope a jury gives the church an award that exceeds the county’s fine by many millions.

BREAKING: California’s ‘High Capacity’ Magazine Ban Ruled Unconstitutional Under Bruen.

The opinion is here.

If you’ll remember, back in 2017, Judge Roger Benitez struck down California’s ban on standard capacity magazines the state had arbitrarily ruled to be “high capacity.” That ruling was, of course, overturned by an en banc Ninth Circuit ruling. The case was then appealed to the Supreme Court where it sat until Bruen was decided.

After Bruen, the Supreme Court granted cert, vacated the ruling, and remanded it for reconsideration. Today, Judge Benitez has, as expected, struck down the ban as clearly unconstitutional.

As he wrote . . .

Removable firearm magazines of all sizes are necessary components of semiautomatic firearms. Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed. Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment.
There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried.
The best analogue that can be drawn from historical gun laws are the early militia equipment regulations that required all able-bodied citizens to equip themselves with a gun and a minimum amount of ammunition in excess of 10 rounds.

Oh, and this . . .

One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves. The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen.

That kind of a solution is an infringement on the Constitutional right of citizens to keep and bear arms. The adoption of the Second Amendment was a freedom calculus decided long ago by our first citizens who cherished individual freedom with its risks more than the subservient security of a British ruler or the smothering safety of domestic lawmakers. The freedom they fought for was worth fighting for then, and that freedom is entitled to be preserved still.

It doesn’t get any clearer than that.

Benitez has issued an injunction blocking enforcement of the law, but stayed his order for 10 days to give Attorney General Rob Bonta time to cry in his beer, inform all of California’s relevant law enforcement authorities, and almost surely seek a stay of the order. Even in the Ninth Circuit, that’s less likely to happen now that Bruen is the law of the land.

As California Rifle & Pistol Association president Chuck Michel tells TTAG . . .

Today’s rulings represent continued affirmation that the Bruen decision, and Heller before that, represent a sea change in the way courts must look at these absurdly restrictive laws. Sure, the state will appeal, but the clock is ticking on laws that violate the Constitution

Judge Benitez used a thoughtful and in-depth approach to this ruling and we are pleased that he came to the conclusion, once again, that California’s magazine ban is not constitutional. CRPA was been fighting this magazine ban from day one and we are one step closer to a final victory for gun owners.

This is a very big win and will likely be the basis for many more to come, including the Golden State’s “assault weapons” ban.

FPC Files Amended Complaint in Lawsuit Challenging Massachusetts Handgun Roster

BOSTON, MA (September 21, 2023) – Today, Firearms Policy Coalition (FPC) announced the filing of an amended complaint in its Granata v. Campbell lawsuit, which challenges Massachusetts’ ban on constitutionally protected, modern handguns commonly possessed and used for lawful purposes throughout the United States. The filing comes after the First Circuit Court of Appeals remanded the case to be reheard in light of the Supreme Court’s decision in NYSRPA v. Bruen. The complaint can be viewed at FPCLegal.org.

In addition to state laws requiring that gun owners obtain a Firearms Identification Card or License to Carry Firearms, Massachusetts also prohibits the commercial sale of handguns that are not on its “Approved Handgun Roster” nor prohibited by Attorney General Maura Healey’s “Handgun Sales Regulations.” As a result, Massachusetts residents are prevented from purchasing a large number of popular makes and models of constitutionally protected handguns.

“The analysis is straightforward: (a) Plaintiffs are not prohibited from exercising their right to keep and bear arms; (b) because Plaintiffs’ proposed conduct is covered by the Second Amendment’s plain text, the government must justify the Handgun Ban as being consistent with this Nation’s tradition of firearm regulation; and (c), as Heller and Bruen establish, there is no historical basis for banning arms in common use for lawful purposes,” argues the complaint. “Therefore, the Handgun Ban must be declared unconstitutional and enjoined.”

“Massachusetts’ law preventing residents from acquiring some of the most commonly possessed arms in the Nation is blatantly unconstitutional,” said Cody J. Wisniewski, FPC Action Foundation’s General Counsel and Vice President of Legal, and FPC’s counsel. “Massachusetts residents have the constitutionally protected right to acquire and possess these arms, and we’re looking forward to proving as much in court.”

Harney County judge calls police, sheriffs’ testimony on number of rounds they carry ‘highly relevant’ for Measure 114 trial

Although police are exempt from Measure 114′s gun control restrictions, Harney County Circuit Judge Robert S. Raschio ruled Wednesday that testimony from law enforcement about the number of rounds they use for self defense is relevant for his judgment on whether Oregon’s gun control Measure 114 violates the state constitution.

Raschio said he was partly swayed by a “friend of the court” brief that the National Police Association had filed with the Oregon Supreme Court in late January in support of the Harney County gun owners’ challenge to the Oregon gun control measure.

The judge read a passage from the association’s 50-page brief, to explain his ruling:

“It reads, ‘Because police officers are defending themselves against the same criminals as citizens, their experience is highly relevant to the appropriate scope of self- defense. Over the years, police departments across the nation have abandoned service revolvers in favor of modern semi-automatic weapons with larger magazines. This is true even though police are often working together as a group, with even less need for higher capacity magazines than individual citizens attempting to defend themselves.’”

Raschio said that he agrees that what police use for self defense is “highly relevant,” and will allow the testimony from Oregon State Police Supt. Casey Codding and two sheriffs from Union and Harney counties, who took the witness stand a day earlier, to be considered.

The issue before Raschio is whether the measure’s regulations are lawful under Article 1, Sec. 27 of the Oregon Constitution, which establishes a right to bear arms.

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Federal Judge Rejects Hunter Biden Request To Appear In Court Via Video Conference

A federal judge rejected a request from Hunter Biden’s legal team this week to allow the president’s son to make his arraignment on federal gun charges through a video conference instead of having to show up in person.

U.S. Magistrate Judge from the District of Delaware Christopher Burke rejected the request in an order on Wednesday afternoon.

Burke gave multiple reasons for denying, including that the Court believes the appearance in important because its one of the few times that the defendant will physically be in the courtroom and the setting “helps to emphasize the ‘integrity and solemnity of a federal criminal proceeding.’”

Special Counsel David Weiss indicted Hunter Biden earlier this month on three charges related to the purchase of a firearm, including allegedly making multiple false statements, and being unlawfully in possession of a firearm.

“Moreover, in this matter, most of the criminal charges that Defendant now faces are new and were not addressed at his prior hearing in July 2023-such that this will be the first time they are discussed in court,” Burke wrote. “The Court will also address Defendant’s pre-trial release conditions; while the Court expects it is likely that the currently-imposed conditions will remain in place, were either side to suggest alterations, the Court would want to be able to address that issue in person with the parties.”

“Other than during the exigent circumstances of the COVID crisis (when the Court was proceeding under the auspices of the now-expired CARES Act standing order), in 12 years as a judge on this Court, the undersigned cannot recall ever having conducted an initial appearance other than in person,” he continued. “That has been the case as to defendants of all types, regardless of their location or personal circumstance.”

Burke used the words from Hunter Biden’s legal team against him, saying that he agrees that Hunter Biden “should not receive special treatment in this matter-absent some unusual circumstance, he should be treated just as would any other defendant in our Court.”

“Any other defendant would be required to attend his or her initial appearance in person,” he said. “So too here.”

Plaintiffs rest in state trial challenging Oregon’s new gun laws

Lawyers for two Harney County residents who are suing the state to block Oregon’s new gun laws wrapped up their arguments Wednesday. They presented two and a half days of expert testimony from firearms experts, law enforcement officers and other people who regularly use firearms in the course of their day-to-day lives.

Measure 114 requires a permit to purchase a firearm and a completed background check and bans magazines holding over 10 rounds of ammunition. It also bans magazines “that can be readily restored, changed, or converted to accept, more than 10 rounds of ammunition.” The provisions were blocked in December by Harney County Circuit Court Judge Robert Raschio pending this week’s trial.

On the opening day of the trial, the plaintiffs called Derek LeBlanc, a firearms instructor, and Ashley Hlebinsky, a former curator at the Cody Firearms Museum in Wyoming.

LeBlanc testified that, for self-defense, he recommends people get a firearm capable of holding as many rounds as possible. Questioned by Oregon Department of Justice attorneys defending Measure 114, LeBlanc conceded that he doesn’t carry the largest magazines possible, such as 60 or 100 round magazines.

Hlebinsky testified that there have been points in history when people carried more advanced firearms than the military. The Oregon Court of Appeals has in the past said firearms that evolved from military ordnance are not protected under the state constitution.

Hlebinsky also testified that there were many early firearms capable of firing multiple rounds without needing to be reloaded, and several makes and models that held over 10 rounds or used magazine-style feeding devices. During cross-examination, Hlebinsky said many of the earlier rifles she mentioned in her testimony were only available in Europe or, if they were in the United States, they were only in very limited numbers.

Hlebinsky’s husband works in the firearms industry and owns over $1 million in stock in an ammunition company. Her ties to the firearms industry and lack of formal training as a historian led a federal judge to question her credibility in a federal trial testing Measure 114′s legality under the U.S. Constitution.

“Ms. Hlebinsky lacks background and training as a historian,” U.S. District Judge Karin Immergut wrote in her July ruling, which found Measure 114 federally constitutional. “More troubling to this Court, Ms. Hlebinsky has both professional and personal ties to pro-gun groups and the firearms industry, which this Court finds limit her ability to serve as a neutral expert in this case.”

Scott Springer, who manufactures firearms parts and accessories, went over several different handgun, rifle, and shotgun magazines, and showed how the most common 10-round magazines can be altered to accept more than 10 rounds. The modifications require a drill, belt sander or additional parts.

Oregon State Police Superintendent Casey Codding, Union County Sheriff Cody Bowen and Harney County Sheriff Dan Jenkins all testified that their troopers and deputies carry firearms with 17-round magazines plus one round in the chamber. They also carry an additional two extra magazines for a total of 52 rounds. Codding said many of his troopers in rural areas take their firearms home with them because they start and end their days at home.

Bowen and Jenkins said their jurisdictions cover large geographic areas where response times can be lengthy. Bowen said citizens have asked him what they are supposed to do while waiting for a potentially 30-minute response “while somebody is beating on the door saying they’re going to kill me.”

“My answer to them, you know, defend yourself,” Bowen testified. “As far as human life, you have every right to defend yourself. You do whatever it takes to stay alive and wait for us to get there.”

Both sheriffs said their deputies have often relied on armed civilians to provide cover for them during incidents. They also testified that residents and deputies use their firearms to protect themselves, their families and their livestock from predators including bears, wolves and coyotes.

Bowen said he recently had a run-in with a bear, although he said the bear “didn’t get his filthy paws on me, but it was way too close for my comfort.”

Lawyers defending Measure 114 objected to much of Codding’s, Bowen’s and Jenkins’ testimony because the law has carve-outs for law enforcement to own and carry high-capacity magazines. Special Assistant Attorney General Harry Wilson said that, unlike citizens, law enforcement has the authority and duty to protect the public.

The U.S. Supreme Court ruled in 2005 that police do not have a constitutional duty to protect the public from harm.

Lawyers challenging the new law said law enforcement’s assessment of what is necessary for self-defense is relevant. Raschio agreed and allowed the testimony.

Cattle rancher Shane Otley testified that he carries a Glock 380 and an AR-15. In the Glock, he said he carries a five-round magazine, and in the AR-15, he said he uses between 10 and 30-round magazines. He said he carries the Glock for personal defense and the AR-15 for protecting his livestock.

Harney County gun store owner Ben Callaway testified about the various kinds of magazines and firearms he frequently orders and sells. He testified that several attempts to order 10-round magazines had been rejected by out-of-state companies citing Measure 114′s prohibition against magazines that can be modified to hold more than 10 rounds.

Opponents of Measure 114 gun laws say case is about “individual rights” in trial opening

In opening statements Monday, lawyers for two people suing over Oregon’s new gun laws said Ballot Measure 114′s provisions are the “most significant threat to [the right to bear arms] Oregonians have faced in nearly 165 years.”

“This case is not about public health, public safety or public concern,” plaintiffs’ attorney Tony Aiello told Judge Robert Rascio. “This is about individual rights. This is about the individual right to self defense and the right to bear arms to secure that right.”

Aiello said plaintiffs in the state trial plan to show that Measure 114, approved by voters last year, effectively limits Oregonians to owning only antique firearms. He said Measure 114 regulates firearms that were plentiful prior to 1859, the year Article I, Section 27 of the Oregon constitution — the section protecting the right to bear arms — was ratified.

The new laws would ban high capacity magazines holding more than 10 rounds of ammunition, require a completed background check to buy or transfer a firearm and require a person to take training and receive a permit to purchase a firearm. Raschio, an Oregon Circuit Court judge based in Harney County, blocked the new laws from taking effect in December pending this week’s trial.

In their opening statement, lawyers defending the new rules for the Oregon Department of Justice said the court must determine if large capacity magazines are considered “arms” under the state constitution, and thus protected, a question they said had already been resolved by the Oregon State Court of Appeals.

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Oregon judge to decide in new trial whether voter-approved gun control law is constitutional

PORTLAND, Ore. (AP) — An Oregon judge is set to decide whether a gun control law approved by voters in November violates the state’s constitution in a trial scheduled to start Monday.

The law, one of the toughest in the nation, was among the first gun restrictions to be passed after a major U.S. Supreme Court ruling last year changed the guidance judges are expected to follow when considering Second Amendment cases.

Measure 114 has been tied up in federal and state court since it was narrowly passed by voters in November 2022, casting confusion over its fate.

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