Category: Courts

This makes no sense whatsoever, but then most goobermint doesn’t

State: ‘Government has no authority’ to impose penalties for not registering banned guns
Data shows 5,900 registered banned guns in Illinois after Jan. 1

(The Center Square) – The state of Illinois says “government has no authority” to impose criminal penalties for those not registering banned firearms.

Illinois State Police have updated the gun ban registration numbers to include those who registered after the Jan. 1 deadline. On top of the 29,357 individuals who registered before the deadline, 5,867 have registered since. The total of those registering before and after the deadline of 35,224 is 1.46% of the state’s more than 2.4 million Firearm Owners ID card holders.

Also updated is a list of how many individuals registered banned items per county. Cook County had the highest numbers of those registering at 6,364. Pope County had the fewest at five.

Lawsuits against the gun ban and registry continue in state and federal court.

In their response to a Fifth Amendment challenge to the state’s gun ban and registry in the Southern District of Illinois federal court, attorneys for the state say the right against self-incrimination isn’t violated by the registry.

The state’s lawyers argue the registration is a “voluntary benefit that exempts owners of certain” firearms from “otherwise applicable criminal penalties.” They also argue the “government has no authority to impose” penalties on those that don’t register and the idea someone would be prosecuted for what they file is “not real.”

“[T]he fanciful chain of events they have dreamed up has no serious chance of coming to fruition,” the filing said.

The filing is part of the ongoing litigation that plaintiffs’ attorney Thomas Maag predicts will get to the merits of the issues in the months ahead.

“It was clear from what [Judge Stephen McGlynn] said that he said that the lawyers should not plan on missing any breaks over the summer,” Maag told The Center Square. “That the judge wants to have a trial on the merits before June.”

Separately in state court last week, an Effingham County judge denied attorney Thomas DeVore’s attempt to reinstate his gun ban challenges that were vacated last year after the Illinois Supreme Court sided with the state in the case brought by state Rep. Dan Caulkins, R-Decatur.

DeVore said he’s taken the case to the appellate court.

“The judge just kicked the can down the road, he didn’t stop this case,” DeVore told The Center Square. “And the Illinois Supreme Court in their ruling in Caulkins did one good thing, is they gave me a roadmap on how I can win the arguments on equal protection.”

DeVore contends the state saying exempt classes of people, like active duty and retired police, security and prison guards, have specialized training is a “legal fiction.”

“If you break them down, you will find that almost none of them have a duty to protect the public order and the training,” he said.

All preliminary attempts in state and federal court at blocking the law from being implemented have not resulted in the law being overturned. It’s expected the issue will be taken up by the U.S. Supreme Court.

The Supreme Court Just Took a Side in the Biden Border Crisis

The Supreme Court sided with the Biden administration on Monday in a split decision that will allow federal agents to cut razor wire installed by Texas officials along the U.S.-Mexico border amid the worsening crisis created by President Biden’s policies.

The 5-4 decision granted an emergency appeal filed by the Biden administration to reverse an injunction from the Fifth Circuit Court of Appeals and now allows the feds to dismantle concertina wire while the lawsuit over Texas’ efforts to assume the duties of enforcing the international border — a responsibility that’s been abdicated by the Biden administration — moves ahead.

According to the Court’s order in Department of Homeland Security et al. v Texas:

The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.

Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberal wing constituted by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to grant the Biden administration’s appeal.

As Fox News Channel’s Bill Melugin noted on X following the Supreme Court’s ruling, this is “potentially setting up a significant state vs federal showdown.” That’s because most of the razor wire installed by state officials in Texas lies in Eagle Pass’ Shelby Park which was seized by Texas as it fights to secure the border amid Biden’s failures. Texas booted federal agents from the park, but the SCOTUS order means Border Patrol needs access to the park to cut the razor wire.

NH Supreme Court Affirms No Duty to Retreat When Acting in Self-Defense

It feels like it’s a rare occasion these days for any court with more than one judge to issue a unanimous decision, much less one that comes down on the side of our right to keep and bear arms, but that’s exactly what happened in New Hampshire on Monday as the state Supreme Court sided with a man who drew his gun to ward off an aggressor in a road rage incident, only to find himself charged (and convicted of a crime).

It was almost three years go when Joshua D. Shea’s was convicted on a single charge of criminal threatening with a deadly weapon, but the court has now thrown out that conviction after ruling that the judge overseeing the case erred by instructing the jury to consider whether Shea had the opportunity to retreat from the encounter. As the court pointed out in its ruling, lawmakers had removed any such duty to retreat from state statutes a decade earlier, and the judge had no basis to demand the jury consider the long-repealed law when weighing the evidence against Shea.

“After 2011, a person is justified in using deadly force when he reasonably believes that another person is about to use unlawful, deadly force against him, and he is not required to retreat if he is anywhere he has a right to be and was not the initial aggressor,” wrote Associate Justice Anna Barbara Hantz Marconi.

Shea claims he pulled his gun after another driver threatened to “beat his ass” following a close call on Route 28 in Epsom, according to the ruling’s recitation of the case. While the complainant claimed Shea pointed the gun at him, Shea testified he merely showed the gun to warn the other man off.

The incident started when the other man pulled his car in front of Shea’s truck as they drove on Route 28, forcing Shea to slam on his brakes and hit his horn. After the two men “exchanged middle fingers” they both pulled into a gas station parking lot off a traffic circle, according to the ruling.

In the gas station parking lot, according to Shea’s testimony at trial, the complainant began “aggressively swearing and saying he was going to . . . rip (Shea) out of [his] car.”

Shea further testified that the complainant said he would “beat (Shea’s) ass,” and asked the defendant to pull into the parking lot next door where there were no cameras.

At this point, Shea testified, the complainant began walking toward Shea’s truck and he was in serious fear for his safety. Shea testified he unclipped his pistol from its holster and warned the other driver he had a gun. Shea says he brought the gun up to his chest to show the man the gun, while the other man claimed Shea pointed the gun at him.

Despite the fact that no duty to retreat exists in New Hampshire law, Judge Andrew Schulman still informed the jury that one of the factors in the case was whether Shea “could have completely and safely left the area without any risk to himself or others.” In doing so, the judges ruled, Schulman went above and beyond what is allowed by law and contradicted what the state legislature has had to say about retreating in the face of danger; namely, that there is no requirement to do so if they were not the initial aggressor. Even when deadly force is not used, merely the display of a firearm to prevent the threat from escalating, the gun owner has no duty to retreat or present their back to the individual threatening to commit an act of violence against them.

I have to say, it’s nice to be able to cover a decision involving our right to self-defense that doesn’t include anti-gun judges trying to twist the law to suit their own purpose. Granted, four of the five justices on the court were appointed by Republican Gov. Chris Sununu, but even the lone justice named to the bench by Democrat John Lynch didn’t try to play any games with the decision. The five justices all made it clear that folks who aren’t the aggressor are not compelled to walk, run, or drive away instead of taking steps to lawfully protect themselves, and I’m glad that the court reiterated that fact in no uncertain terms. Hopefully Schulman’s jury instruction was just an aberration to begin with, but now there’s no excuse for any other Granite State judge to assert a duty to retreat that doesn’t exist in state law, and that’s a big win for those of us who believe in the human right of self-defense

Baldwin Facing Involuntary Manslaughter Charges After Grand Jury Indictment

A few months ago it looked like Alec Baldwin was going to avoid having to choose between a trial and a plea bargain for his role in the death of cinematographer Halyna Hutchins. Last April prosecutors dropped the original charge against the actor, citing new evidence that the gun in question might have been modified or malfunctioned, though they did say at the time that the “decision does not absolve Mr. Baldwin of criminal culpability and charges may be refiled.”

The investigation continued after the dismissal, and prosecutors received another analysis of the revolver by the Arizona company Forensic Science Services, which concluded that despite Baldwin’s claims that he never pulled the trigger of the gun before it discharged the round that killed Hutchins, “the trigger had to be pulled or depressed sufficiently to release the fully cocked or retracted hammer of the evidence revolver.”

Prosecutors recently brought that analysis before a grand jury, and now its members have indicted Baldwin on the same charge that was dismissed in 2023.

While the proceeding is shrouded in secrecy, two of the witnesses seen at the courthouse included crew members — one who was present when the fatal shot was fired and another who had walked off the set the day before due to safety concerns.

Baldwin, the lead actor and a co-producer on the Western movie “Rust,” was pointing a gun at cinematographer Halyna Hutchins during a rehearsal on a movie set outside Santa Fe in October 2021 when the gun went off, killing her and wounding director Joel Souza.

Baldwin has said he pulled back the hammer, but not the trigger, and the gun fired.

Baldwin’s not the only one facing charges, of course. Hannah Gutierrez-Reed, who was Rust’s armorer, has pleaded not guilty to involuntary manslaughter and evidence tampering in the case. Her trial was supposed to take place last month, but is now scheduled for February 21.David Halls, who was an assistant director as well as film’s safety coordinator, ended up taking a plea deal last March; pleading no contest to a single count of unsafe handling of a firearm in exchange for six months of probation, suspended.

Baldin’s attorneys offered a brief comment to Variety after the indictment was announced, telling reporters only, “We look forward to our day in court.” With the possibility of an 18-month prison sentence hanging over his head, my guess is that Baldwin and his legal team are also looking to see what kind of deal might be on the table before a trial takes place.

This case has been a hot mess from almost Day 1; with multiple prosecutors recusing or resigning from the case, charges filed, dropped, and now refiled, and conflicting reports about the gun in Baldwin’s hand when Hutchins was killed. Despite enough drama to serve as the inspiration for a whole season of Law & Order episodes, the case ultimately boils down to this: can prosecutors prove beyond a reasonable doubt that he acted negligently and without due care by violating some of the cardinal rules of gun safety on the set? They’re probably going to need more than a forensic report, so it will be interesting to see if either of the two crew members spotted at the courthouse where the grand jury met is willing to state that they actually saw Baldwin pull the trigger with Hutchins and Souza in front of him.

Speaking of the rules for gun safety, if nothing else, Baldwin’s legal woes are a good opportunity to remind him and everyone else of the four fundamentals:

  • Always keep your gun pointed in a safe direction
  • Keep your finger off the trigger until you’re ready to shoot
  • Know your target and what’s beyond
  • Treat all guns as if they are loaded at all times

Follow these rules (and I’d throw in the fifth rule of never mixing guns and alcohol/drugs as well) and you’ll be fine. Ignore them and it might not be just your own future you put in peril but your friends, family, range buddies, or even co-workers.

3 Gun Rights Cases Before the Supreme Court You Should Know About

Both sides of the Second Amendment debate will be watching the U.S. Supreme Court closely in 2024 as it applies the standards from previous decisions to new high-profile cases.

In the 2022 New York State Rifle and Pistol Association v. Bruen decision, the Supreme Court ruled that, to be constitutional, new gun laws must match the plain text of the Constitution and the “history and tradition” of the United States.
“The test that … applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Justice Clarence Thomas wrote for the majority in June 2022.

One of the first major post-Bruen cases, United States v. Rahimi has court watchers curious about how Bruen will be applied. The high court heard oral arguments on Rahimi on Nov. 7, 2023.

Federal law currently bars those who are under domestic violence restraining orders from possessing guns. The Supreme Court in the Rahimi case will decide if it stays or goes.

Gun control advocates say the “text and tradition” standard of the Bruen decision, if applied in Rahimi, would allow violent abusers access to guns, resulting in the deaths of domestic violence victims.

“The Supreme Court must reverse this dangerous [Bruen] ruling,” Janet Carter, senior director of issues and appeals at Everytown Law, wrote on the Everytown for Gun Safety website. “Domestic abusers do not have—and should not have—the constitutional right to possess a firearm.”
Gun rights advocates say the Rahimi case has been mischaracterized as an attempt to arm violent criminals when it’s really about protecting society without preemptively suspending constitutional rights.

“It’s going to answer one issue, which is, do we as a country have a historical tradition of disarming people that we believe to be dangerous?” William Kirk, a Washington state-based lawyer who specializes in the Second Amendment, told The Epoch Times.

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MONUMENTAL DECISION: THIRD CIRCUIT RULES THAT THE SECOND AMENDMENT APPLIES THOSE 18 YEARS OF AGE AND OLDER

Today, Chief Counsel Joshua Prince secured a major victory for Second Amendment jurisprudence in Lara, et al. v. Commissioner of the Pennsylvania State Police, docket no. 21-1832, where the Third Circuit held that Pennsylvania’s banning of 18-to-21-year-olds from carrying firearms outside of their homes during a state of emergency is unconstitutional.

In so holding, the Third Circuit declared

The words “the people” in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds, and we are aware of no founding-era law that supports disarming people in that age group.

In that vein, the court went on to emphasize that

It is undisputed that 18-to-20-year-olds are among “the people” for other constitutional rights such as the right to vote (U.S. Const. art. I, § 2; id. amend. XVII), freedom of speech, peaceable assembly, government petitions (id. amend. I), and the right against unreasonable government searches and seizures (id. amend. IV)…and there is no reason to adopt an inconsistent reading of “the people.”

In turning to whether the relevant historical timeframe is 1791 (ratification of the Second Amendment) or 1868 (ratification of the Fourteenth Amendment), the court declared

[That] to maintain consistency in our interpretation of constitutional provisions, we hold that the Second Amendment should be understood according to its public meaning in 1791.

In turning to the statutory sections at issue, the court acknowledged that

[t]aken together, §§ 6106, 6107, and 6109 – when combined with a state or municipal emergency declaration – have the practical effect of preventing most 18-to-20-year-old adult Pennsylvanians from carrying firearms

and that “that the Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns.”

Accordingly, the Third Circuit remanded the issue with “instructions to enter an injunction forbidding the Commissioner from arresting law-abiding 18-to-20-year-olds who openly carry firearms during a state of emergency declared by the Commonwealth.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Impermissible, the court said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Gun Silencer Regulations Are Held Valid Under Second Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Judge allows challenge to NY assault weapons ban to proceed

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

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

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

Karas dismissed the defendants’ arguments in the ruling.

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

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

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

Hearing on Oregon’s Measure 114 Finds it Unconstitutional

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Year, Same Old Ninth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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