Category: Courts

SAF SUES CALIFORNIA OVER ‘SENSITIVE PLACES’ LEGISLATION

The Second Amendment Foundation has filed a federal lawsuit in California seeking declaratory and injunctive relief from the freshly inked Senate Bill 2 (SB 2), which makes nearly every public place in the state a “sensitive place” and forbids the carrying of firearms even by citizens who have gone through the lengthy and expensive process of obtaining a concealed handgun license.

SAF is joined by Gun Owners of America, Gun Owners Foundation, Gun Owners of California, the California Rifle & Pistol Association and eleven private citizens. Named as Defendant is California Attorney General Rob Bonta. The lawsuit was filed in U.S. District Court for the Central District of California, Southern Division. Plaintiffs are represented by attorneys C.D. Michel, Sean A. Brady and Konstadinos T. Moros at Michel & Associates in Long Beach, and Donald Kilmer, Law Offices of Don Kilmer, Caldwell, Idaho.

“SB 2 is designed to frustrate and ultimately discourage individuals from exercising their right to bear arms by creating a patchwork of locations where Second Amendment rights may, or may not, be exercised,” noted SAF Executive Director Adam Kraut. “That is not how constitutional rights work. SAF is happy to add California to the list of states that we have sued for adopting so-called ‘Bruen Response Bills’ that make it impractical, if not impossible for people to exercise their rights by essentially making carry permits useless.”

“Under SB 2,” said SAF founder and Executive Vice President Alan M. Gottlieb, “legally armed California citizens might be able to carry on some streets and sidewalks, and in a few private businesses that post signs allowing legal carry on their premises. Overall, however, SB 2 is a massive prohibition on legal carry throughout the Golden State, which runs counter to what the U.S. Supreme Court said in its Bruen ruling last year, and which Gov. Gavin Newsom and anti-gun-rights state lawmakers are desperately trying to get around.”

“The right to keep and especially bear arms is under direct attack via SB 2,” Kraut observed. “California continues its trend of ignoring rights safeguarded by the Constitution. Such disregard cannot be allowed to go unchallenged.”

Fort v. Grisham: 2A Challenge to New Mexico Governor’s Carry Ban

Summary: Federal lawsuit challenging the New Mexico Governor’s total carry ban.

Plaintiffs: Zachary Fort, Firearms Policy Coalition, Second Amendment Foundation, and New Mexico Shooting Sports Association.

Defendants: New Mexico Governor Michelle Lujan Grisham, New Mexico Department of Health Cabinet Secretary Patrick Allen, New Mexico Department of Safety Cabinet Secretary Jason Bowie, New Mexico State Police Chief W. Troy Weisler.

Litigation Counsel: Jordon George

Docket: D. NM case no. 1:23-cv-00778 | CourtListener Docket

Key Events & Filings:

Firearms Policy Coalition @gunpolicy

The First Circuit heard oral arguments today in a lawsuit challenging Rhode Island’s magazine ban. You can listen to it here: ca1.uscourts.gov/sites/ca1/file…
“‘I struggle with the notion’ that magazines aren’t arms, said U.S. Circuit Judge Bruce Selya, a Reagan appointee. ‘The firearm isn’t operable otherwise. So I don’t understand why a magazine isn’t an essential component of a firearm and thus a firearm.'” courthousenews.com/can-states-ban…
The first federal appeals court to tackle this issue after the Supreme Court’s landmark gun-control ruling last year seemed uncertain how to proceed.
“[Judge] Kayatta was skeptical. ‘How did there get to be millions and millions of these in people’s hands if there’s a long tradition of outlawing them?’ he asked.”
wut?
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We all know New Mexico goobernor Grisham issued an Emergency “Health Order” suspending concealed and open carry of guns in New Mexico even for concealed carry permit holders.

Challenge to N.M. Governor’s Ban on Public Gun Carry in Albuquerque and Surrounding County

From the motion for a temporary restraining order in Nat’l Ass’n for Gun Rights v. Grisham, filed yesterday in New Mexico federal court (paragraph numbering removed).

Governor Grisham issued Executive Order 2023-130 (the “Executive Order”) on September 7, 2023…. In the Executive Order Governor Grisham declared that a state of emergency exists in in New Mexico due to gun violence.

Based on the Executive Order, [N.M. Secretary of the Department of Health Patrick Allen issued “Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures” dated September 8, 2023 (the “PHE Order”)[:] …

[1] No person, other than a law enforcement officer or licensed security officer, shall possess a firearm … either openly or concealed, within cities or counties averaging 1,000 or more violent crimes per 100,000 residents per year since 2021 according to Federal Bureau of Investigation’s Uniform Crime Reporting Program AND more than 90 firearm-related emergency department visits per 100,000 residents from July 2022 to June 2023 according to the New Mexico Department of Public Health [which, according to news accounts, includes only Bernalillo County, where Albuquerque is located -EV], except:

 

[A] On private property owned or immediately controlled by the person;

[B.] On private property that is not open to the public with the express permission of the person who owns or immediately controls such property;

[C.] While on the premises of a licensed firearms dealer or gunsmith for the purpose of lawful transfer or repair of a firearm;

[D.] While engaged in the legal use of a firearm at a properly licensed firing range or sport shooting competition venue; or

[E.] While traveling to or from a location listed in Paragraphs (1) [sic] through (4) [sic] of this section; provided that the firearm is in a locked container or locked with a firearm safety device that renders the firearm inoperable, such as a trigger lock….

Bruen states that the appropriate test for applying the Second Amendment is: “[1] When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. [2] The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” … The Carry Prohibition flatly prohibits Plaintiffs from carrying handguns (or any other firearm) in public for self-defense. Therefore, Plaintiffs’ burden under step one of the Bruen analysis is easily met for the same reason it was met in Bruen….

In Bruen, the State of New York conceded a general right to public carry. Instead, New York argued that that the Second Amendment permits a state to condition handgun carrying in certain areas on a showing of a “need” for self-defense in those areas. The Court held that to “support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” After an exhaustive analysis of the relevant historical tradition, the Court held that New York failed to demonstrate that its law was consistent with the Nation’s historical tradition of firearm regulation….

If New York’s “proper-cause” requirement for public carry failed Bruen’s second step, New Mexico’s flat prohibition of public carry under any circumstances necessarily fails Bruen’s second step as well. The Court can reach this conclusion without reviewing any of the relevant history, because as a matter of simple logic it is not possible for New Mexico to demonstrate that a flat prohibition on public carry is consistent with history and tradition when even a proper cause requirement for public carry was not….

Plaintiffs [also] desire to go to private businesses open to the public while lawfully carrying a firearm for lawful purposes, including self-defense, without first obtaining the express affirmative permission of the person who owns the property. The Carry Prohibition prohibits that conduct. Last month, in Wolford v. Lopez (D. Haw. 2023), the court issued a TRO and preliminary injunction enjoining a practically identical Hawaii law. Hawaii argued that there was historical support for its prohibition on carriage on private property without consent. After examining the historical record submitted by the state, the court rejected its argument. It wrote:

… The State has not established that the portion of [the statute] that prohibits carrying firearms on private property held open to the public is consistent with this Nation’s historical tradition of gun regulation. Because the State has not met its burden, Plaintiffs are likely to succeed on the merits of their challenge to [the statute] to the extent that [the statute] prohibits carrying firearms on private property held open to the public.

The historical record has not changed since last month. Like Hawaii, New Mexico will not be able to show that the Carry Prohibition’s prohibition on lawfully carrying firearms into private businesses in Affected Areas open to the public without first obtaining the express affirmative permission of the person who owns the property is consistent with this Nation’s historical tradition of gun regulation. There is no such historical tradition. Therefore, the State is unable to carry its burden….

I intend to blog the other side’s argument when it becomes available. (You can read the full order, which is written to last until Oct. 6, here.) In the meantime, here’s the relevant part of the New Mexico Constitution’s right to bear arms provision (enacted in 1971):

No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

City of Las Vegas v. Moberg (1971) interpreted the 1912 constitutional right to bear arms  provision (“The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons”) as indeed invalidating laws that ban both open and concealed carry of guns. The argument in this federal case doesn’t rely on the state constitutional provision (likely because federal courts generally can’t issue injunctions against state governments violating state law), but I thought it worth noting, since the New Mexico Governor is of course obligated to comply with the state constitution.

The next question is whether California will appeal for an en banc appeal to the full court, the court will itself ‘sua sponte’ make itself go en banc, or not.

Gun owners win new bid to challenge California’s open-carry restrictions

A federal appeals court on Thursday gave two gun owners another shot at blocking California’s restrictions on openly carrying firearms in public, citing a major U.S. Supreme Court ruling last year that expanded gun rights.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that a lower-court judge applied the incorrect legal standard when she declined last year to issue a preliminary injunction barring enforcement of California’s law.

The gun owners, Mark Baird and Richard Gallardo, have been challenging the laws since 2019, saying California’s restrictions on openly carrying handguns in public violates their right to keep and bear arms under the U.S. Constitution’s Second Amendment.

U.S. District Judge Kimberly Mueller in Sacramento, an appointee of former Democratic President Barack Obama, declined in December to block enforcement of the restrictions, saying doing so could endanger public safety.

But U.S. Circuit Judge Lawrence VanDyke, who was appointed by former Republican President Donald Trump, said Mueller failed to analyze a key factor–whether Baird and Gallardo would likely succeed on the merits of their constitutional claim.

VanDyke, whose opinion was joined by two fellow appointees of Republican presidents, stressed that the right to bear arms was not a “second-class right,” and he said the importance of evaluating the plaintiffs’ claims “does not change where the constitutional violation at issue is a Second Amendment violation.”

Amy Bellantoni, a lawyer for the plaintiffs, welcomed the ruling. “California’s open carry regulations are repugnant to the plain text of the Second Amendment and a preliminary injunction should follow,” she said in a statement.

A spokesperson for the office of California Attorney General Rob Bonta, a Democrat, said in a statement that the office was reviewing the decision. “It is important to note that criminal penalties for the unlicensed open carry of firearms remain in effect,” the statement said.

Openly carrying a firearm is generally illegal in California, with narrow exceptions. Only counties with populations of less than 200,000 — which combined account for about 5% of state residents — may issue open-carry permits.

But Baird and Gallardo, who reside in these smaller counties, said they have been unable to obtain such a license.

Their lawsuit gained new support in June 2022, when the conservative-majority U.S. Supreme Court declared for the first time that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense.

That decision, New York State Rifle & Pistol Association v. Bruen, set forth a new test for assessing firearms laws, saying restrictions must be “consistent with this nation’s historical tradition of firearm regulation.”

The ruling has led to many other gun safety laws being struck down across the country. The Supreme Court in November will consider whether to uphold a federal ban on people under domestic violence restraining orders from possessing firearms.

In Thursday’s ruling, VanDyke said that on remand, Mueller must assess whether under Bruen, California’s laws are “analogous to regulations widely in effect in 1791 or 1868,” when the 14th Amendment to the Constitution was adopted.

He said Mueller must reevaluate the issue “expeditiously.”

The case is Baird v. Bonta, 9th U.S. Circuit Court of Appeals, No. 23-15016.

Federal Judge Issues 42-Page Ruling on Floating Border Barriers

A federal judge on Wednesday ordered the state of Texas to remove barriers from the Rio Grande, which Gov. Greg Abbott had put in place to deter migrants from entering his state illegally.

The Biden administration filed a lawsuit against Abbott in July, arguing that he had failed to obtain the federal government’s permission to place the buoys on the border between the U.S. and Mexico, CBS News reported.

In his 42-page preliminary injunction order, Judge David Ezra, a Ronald Reagan appointee, directed the state to remove the barriers from the river by Sept. 15.

Ezra wrote that Abbott needed permission to place the floating barriers in the Rio Grande because they obstructed a U.S. navigable waterway in violation of federal law.

The judge also pointed out that the water barrier raised international relations issues with Mexico, which are in the purview of the federal government.

“Mexico vigorously denounces the presence of the barrier, expressing its hope for expeditious removal of the barrier as the first topic at the August 10, 2023, meeting between Foreign Secretary Alicia Barcena and Secretary of State Anthony Blinken,” Ezra said.

This judge has it backwards and I’d say purposefully. The goobermint has to submit evidence that the weapons are not in common use for self defense, (impossible by the way, so that’s why the judge pretzeled it)  not the plaintiffs

Federal judge upholds Conn.’s assault weapons ban for 2nd time in a month

For the second time in less than a month, a federal judge has upheld Connecticut’s assault weapons ban by denying an injunction seeking a temporary halt to the enforcement of the ban as part of a lawsuit challenging the state’s gun laws.

In a 14-page ruling issued earlier this week, U.S. District Judge Janet Bond Arterton said the assault weapons banned by the state are not “commonly” used for self-defense, which would classify the firearms as protected under the Second Amendment.

“Plaintiffs are correct that the Second Amendment provides them with the freedom to choose a firearm . . . ‘that is not dangerous and unusual’ and that is normally used for self-defense,” Arterton said. “However, until they submit evidence that supports a finding that the assault weapons in the challenged statutes meet those requirements, they cannot show a likelihood of success on the merits of their Second Amendment claim.”

She had denied a similar injunction requested by the National Association for Gun Rights, which is also suing state officials to revoke the ban, on Aug. 3. Her ruling this week marks the third time since June that Arterton has upheld the state’s assault weapons ban.

Attorney Cameron Atkinson, one of three lawyers representing the plaintiffs, three people including two former state correction officers and two gun rights advocacy groups, said they will appeal the most recent ruling.

“The District Court did exactly what the Supreme Court told it not to do (in other rulings),” Atkinson said Wednesday. “We’re very confident that the ruling will be reversed on appeal.”

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Per the usual way the courts have dealt in the past with this burr under their saddle, by the time they can delay no longer, the plaintiff’s will have reached 21 years old, and dust off their hands as they dismiss the case as moot.

Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives (3:22-cv-00410) District Court, E.D. Virginia

gov.uscourts.vaed.524643.77.0_1

 

ORDER that the DEFENDANTS’ MOTION FOR A STAY OF INJUNCTION PENDING APPEAL (ECF No. 63 ) is granted. The FINAL ORDER OF INJUNCTION (ECF No. 81 ) and the FINAL ORDER OF DECLARATORY RELIEF (ECF No. 82 ) are STAYED pending appeal to the United States Court of Appeals for the Fourth Circuit. The facts and legal contentions are adequately presented in the materials before the Court and oral argument would not aid the decisional process. It is so ORDERED. Signed by District Judge Robert E. Payne on 8/30/2023 at 4:56 p.m. (jenjones, ) (Entered: 08/30/2023)

The Virginia federal judge found that the federal ban on handgun sales to those under the age of 21 is unconstitutional under the 2nd amendment, per Bruen’s  “History and Tradition” test.
The judge issued a nationwide injunction against the law, but stayed the order while the government appeals to the Circuit court.

21-and-up gun law to remain blocked as federal lawsuit plays out

DENVER (KDVR) — Colorado’s new law blocking all gun sales to anyone under age 21 remains on hold while a legal challenge continues to play out in court.

Rocky Mountain Gun Owners argues the law is a Second Amendment violation and is challenging its constitutionality in federal court.

A judge already blocked the gun-buying restrictions from going into effect in August while the court case plays out. Gov. Jared Polis asked the 10th Circuit Court of Appeals to block that ruling, but the court declined.

“Today, two Obama-appointed judges agreed with us that our plaintiffs do have standing and that our likelihood of success on the merits is strong,” Taylor Rhodes, executive director of Rocky Mountain Gun Owners, said in part in a statement.

For now, the law will remain blocked until the case is heard in court.

Coloradans under 21 could still buy rifles

While federal law requires buyers to be at least 21 years old to buy a handgun, Coloradans under age 21 can still buy rifles. If upheld, Senate Bill 23-169 would block all gun sales to anyone in Colorado under age 21.

A spokesperson for Polis’ office released a statement after the Tuesday ruling.

“People will remain very confused because of this injunction because since 1968, federal law has required Coloradans to be 21 years old to purchase a pistol, but a loophole allows kids under age 21 to legally buy a rifle instead. This new law approved by the legislature closes that loophole and Governor Polis hopes that the courts agree with him that the law is fully consistent with the Second Amendment and reduces confusion. The Governor is working towards his goal of making Colorado one of the ten safest states in the country and the same age requirements for pistols and rifles would help support responsible gun ownership.”

CONOR CAHILL, PRESS SECRETARY FOR COLORADO GOV. JARED POLIS

The Rocky Mountain Gun Owners lawsuit names two Coloradans plaintiffs in the case, each older than 18 but younger than 21 and who said they want to buy a gun for self-defense.

The gun group’s arguments have hinged on the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen.

In that case, the court ruled Americans have a right to carry guns in public for self-defense. The case also set a standard that courts must look at history to decide the constitutionality of gun laws.

D.C. to pay $5.1 million settlement after judge finds Second Amendment violations

D.C. will pay $5.1 million as part of a class-action settlement with gun owners who were arrested under laws that have since been found to violate the Second Amendment, according to the settlement agreement.

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U.S. District Judge Royce C. Lamberth gave preliminary approval to the settlement agreement on Monday following years of litigation. Lamberth had previously ruled in September 2021 that D.C. arrested, jailed, prosecuted and seized guns from six people “based on an unconstitutional set of laws” and violated their Second Amendment rights.

The laws — a ban on carrying handguns outside the home and others that effectively banned nonresidents from carrying guns at all in D.C. — have since been struck down in federal court. They were part of a “gun control regime that completely banned carrying handguns in public,” Lamberth wrote in the 2021 ruling.

Now, D.C. will pay a total of $300,000 to the six plaintiffs and $1.9 million in attorneys fees, with the majority of the rest of the money set aside for more than 3,000 people estimated to qualify for the class-action.

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Montana leads 18 states in court to strike down Maryland ‘buffer zones’ gun law

EXCLUSIVE — Montana Attorney General Austin Knudsen (R-MT) filed an amicus brief in a lawsuit over a Maryland county law he says is defying the Supreme Court’s landmark Second Amendment test by establishing “unconstitutional” gun-free buffer zones.

A group of 18 attorneys general led by Knudsen filed the brief Monday at the Virginia-based U.S. Court of Appeals for the 4th Circuit, asking the court to side with plaintiffs who say it is “practically impossible” to carry a gun for personal defense in Maryland’s most populous county, Montgomery County, due to a restrictive gun control law passed in late November.

When asked why Montana sought to intervene over a Maryland county law, Knudsen told the Washington Examiner that the Second Amendment is one of his “personal passion issues.”

“I’m a hunter. I’m a reloader. I’m a competitive shooter. I’m a bit of a gun nut — so I keep a pretty close eye on these things,” Knudsen said. “And I firmly believe that as some of these states go, if left unchallenged, we’ll see this kind of nonsense regulation and, frankly, unconstitutional laws being attempted in other places, not just in Maryland.”

Montana’s assistant solicitor general wrote in the brief first provided to the Washington Examiner that Section 57 of Montgomery County Code “prohibits the sale, transfer, or possession of firearms ‘[i]n or within 100 yards of a place of public assembly.'”

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New Jersey’s Falsely Claims Historical Tradition Of Firearm Regulation Exists

Attorneys representing the Second Amendment Foundation (SAF) and its partners in a federal lawsuit challenging New Jersey’s “sensitive places” statute have filed a response brief to the state’s appeal. The case is now known as Koons v. Platkin.

In May, U.S. District Court Judge Renee Marie Bumb granted a preliminary injunction against the state. New Jersey sought a stay of that order pending appeal, to which Second Amendment Foundation filed a brief in opposition.

SAF is joined by the Firearms Policy Coalition, the Coalition of New Jersey Firearm Owners, New Jersey Second Amendment Society, and four private citizens. Attorney David Jensen, Beacon, N.Y represent them.

“The state is trying to justify the challenged provisions of its ‘sensitive places’ law, which makes it virtually impossible for people with carry permits to actually go to most places,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “Essentially, Garden State residents can walk out the front door with their legally-carried firearms, but they can’t really go anywhere.”

“We maintain the District Court acted properly by issuing a preliminary injunction against enforcement of this ‘sensitive places’ statute,” added SAF Executive Director Adam Kraut. “The Anti-Carry Default provision of the law, which prohibits carrying on private property without the owner’s express permission, is tantamount to prohibiting lawful carry in most public places. The section prohibiting carrying a gun in a vehicle, unless the gun is unloaded and placed in a securely fastened case literally makes legal carry impossible while traveling.”

Both Second Amendment Foundation officials say it is impossible for the state to show the challenged provisions of the law, known as Chapter 131, are consistent with a historical tradition of firearm regulation.

“It is a requirement of the Supreme Court’s Bruen ruling last year,” Kraut noted, “and they can’t meet that requirement because there was no such Founding-era tradition. The state has failed to show such examples, and the injunctions should be upheld.”

The court ruled that since the law hadn’t actually been enforced yet, the plaintiffs didn’t have ‘standing’, as they weren’t yet subject to harm.

New Jersey Can Sue Gun Companies As A ‘Public Nuisance,’ Appeals Court Rules

The state of New Jersey can sue firearms manufacturers under a new state public nuisance law designed to target the industry, a federal appellate court ruled on Thursday.

New Jersey, in July of 2022, enacted new statutory law that allows the attorney general to sue gun manufacturers for being a “public nuisance” if they have “endangered the safety and health of New Jersey residents through the sale, manufacture, distribution, and marketing of lethal, but nonetheless legal, gun-related products,” according to the law. The state was then sued by the National Shooting Sports Foundation (NSSF) in November of 2022 in a “pre-enforcement action,” to stop them from bringing a suit under the law, which was on Thursday dismissed for a lack of ripeness — meaning that it hasn’t matured to the point where a genuine dispute exists — according to the court’s ruling dismissing the suit.

“Pre-enforcement challenges are unusual. To bring one, the plaintiff must show that the stakes are high and close at hand … Yet this suit falls far short of even the ‘normal’ pre-enforcement challenge. A brand-new civil tort statute, without more, does not justify a federal court’s intervention,” wrote U.S. Circuit Judge Stephanos Bibas, a Trump appointee to the U.S. Court of Appeals for the Third Circuit, for a unanimous three-judge bench. “[W]e see little evidence that enforcement is looming … the Foundation has jumped the gun,” Bibas noted.

New Jersey’s law was passed in response to the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, where the court in a 6-3 ruling struck down a New York law that required pistol permit applicants to prove that a “proper cause exists” for having such a permit. The Supreme Court ruled that the law violated the Second Amendment.

“The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different,” wrote Justice Clarence Thomas for the majority in the case. The ruling was widely criticized by Democrats and left-wing groups, who argued that it would increase gun violence and prompted the passage of laws by Democratic-led states to curtail firearm access.

“A gun industry member shall not, by conduct either unlawful in itself or unreasonable under all the circumstances, knowingly or recklessly create, maintain, or contribute to a public nuisance in this State through the sale, manufacturing, distribution, importing, or marketing of a gun-related product,” reads the New Jersey statute, which was challenged by the NSSF. The law also specifies that “[t]he Attorney General shall not be required to demonstrate any special injury” to prevail in a legal challenge on these grounds.

The law had previously been blocked by U.S. District Judge Zahid Quraishi of New Jersey for purportedly violating federal law, which currently immunizes gun manufacturers from lawsuits when their guns are used to commit crimes.

The law adapts a model — creating a civil cause of action for private citizens to sue — that had been adopted by some conservative states, notably Texas, to enforce abortion restrictions prior to the Supreme Court’s overturning of Roe v. Wade. Democratic-led states, such as California, then vowed to use the same model to target gun manufacturers.

“During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement,” said Lawrence Keane, the NSSF’s senior vice president and general counsel. “Should New Jersey’s attorney general attempt to enforce the law, we will immediately refile our complaint.”

“I am thrilled,” said Democratic Gov. Phil Murphy of New Jersey.

Illinois’ latest gun law is an affront to more than just the Second Amendment

Illinois’ new “Firearms Industry Responsibility Act” isn’t just an attack on our right to keep and bear arms. It’s an assault on our freedom of speech as well. On today’s Bearing Arms’ Cam & Co Mark Oliva of the National Shooting Sports Foundation sits down with me to discuss the group’s newly-filed lawsuit challenging HB 218, as well as the impending ATF rule on private sales and transfers of firearms.

The NSSF’s lawsuit, filed in the U.S. District Court for Southern Illinois, challenges the validity of Illinois’ new gun control law on multiple counts, starting with the argument that HB 218 is preempted by the Protection of Lawful Commerce Act. But the NSSF is also raising a First Amendment challenge, asserting that the law discriminates against speech based on its content or viewpoint and arguing that such discrimination should be subject to strict scrutiny by the courts.

The topics and views that Illinois has singled out in HB 218 do not fall into any “well-defined and narrowly limited classes of speech” unprotected by the First Amendment. To be sure, the First Amendment does not preclude imposing liability for false, deceptive, or otherwise “misleading” commercial speech.

But HB 218 does not even purport to target only speech that is false or misleading. It authorizes the imposition of liability for speech about a product—a product expressly protected by the Constitution, no less— even when that speech is truthful and not misleading. Indeed, the words “false,” “misleading,” and “deceptive” appear nowhere in the relevant provisions.

A manufacturer that places online advertisements containing entirely accurate specifications of its products and subsequently sells that product to a distributor, could be liable under HB 218, even if that product is fully lawful in every state in which it is sold, if a Illinois court later deems the product to have been marketed (1) in a way that “contribute[d] to a condition in Illinois that endangers the safety or health of the public,” or (2) encouraged non-servicemembers to use it for “a military-related purpose”.

“They’re trying to squelch the First Amendment rights of firearm manufacturers and retailers,” Oliva explained to me. “If they can eliminate the discussion of safe and responsible firearm ownership to the next generation, they can diminish the desire for ownership and people exercising their Second Amendment rights. So they’re trying to play the long game of eliminating the Second Amendment by eliminating and curtailing the First Amendment. And it’s important to remember that commercial speech is protected by the First Amendment. It is a right for these companies to be able to advertise a constitutionally-protected product.”

In its suit, the NSSF says that the speech code established by HB 218 is so vague that it’s “virtually impossible for regulated parties to tell what speech is and is not permitted, leaving them with no realistic choice but to err on the side of refraining from exercising their First Amendment rights.”

By its terms, HB 218 renders unlawful any marketing of a firearm-related product that “create[s], maintain[s], or contribute[s] to a condition in Illinois that endangers the safety or health of the public” if it is deemed “unreasonable under all circumstances.” This restriction “will provoke uncertainty among speakers,” as such indeterminable and subjective abstractions do not articulate at all—let alone articulate with “narrow specificity”—what kind(s) of speech may later be deemed to have unreasonably contributed to a “condition … that endangers the safety or health of the public.”

Those restrictions are problematic enough, but HB 218 further prohibits marketing “in a manner that reasonably appears to support, recommend, or encourage individuals” who are not in the military “to use a firearm-related product for a military-related purpose.” The problem with this broad prohibition is that Illinois provides no guidance on what qualifies as a “military-related” purpose, leaving industry members to guess whether their marketing materials will later be deemed unlawful.

HB 218 goes on, moreover, to prohibit an industry member from “advertis[ing], market[ing], promot[ing], design[ing], or sell[ing] any firearm related product in a manner that reasonably appears to support, recommend, or encourage persons under 18 years of age to unlawfully purchase or possess or use a firearm-related product.”

A state of course may prohibit speech directly concerning unlawful conduct. But, unless this provision covers nothing more than advertisements that tell minors to buy guns (despite being minors), it is not at all clear what it means. Does any advertisement that shows minors lawfully using firearms (e.g., with a parent while hunting, or at a Boy Scouts shooting event) fall on the wrong side of the line?

What about marketing in a way targeted toward young men, who share many characteristics with those just a few years younger—but are lawfully able to purchase firearms (and serve in the armed forces)? The questions vastly outnumber the answers. And while no statute must preempt all potential complications, when it comes to a prohibition on speech, the lack of clarity is destined to create a massive chilling problem.

If HB 218 is so narrow that it only prohibits advertisements that entice juveniles into breaking the law, then this particular provision is never going to come into play in practice. If, on the other hand, the bill is written broadly enough to target manufacturers like Wee1 Tactical and its JR-15 rimfire rifle, then it’s going to make it virtually impossible to not only market but produce firearms designed for youth shooting. As Oliva says, that’s nothing more than abridging the First Amendment rights of gun makers to curb the Second Amendment rights of gun owners, and a sign of the contempt that Illinois lawmakers have for all of our individual rights.

Check out the entire conversation with Mark Oliva in the video window below, including his initial thoughts on the yet-to-be-introduced ATF rule that seeks to impose a near-universal background check system on gun sales and the dangers it poses to lawful gun owners across the country. Be sure to tune in tomorrow as well, when we’ll be talking with Jim Wallace of the Gun Owners Action League about how gun owners are pushing back on the “Lawful Citizens Imprisonment Act” and what’s happening behind the scenes at the statehouse in Boston.

ILLINOIS 5TH CIRCUIT COURT REVERSES, REMANDS FOID CARD CHALLENGE CASE

BELLEVUE, WA – The Illinois 5th Circuit Court of Appeals has finally reversed and remanded a lower court ruling in a case which could determine whether the Firearm Owner’s Identification (FOID) card requirement is constitutional.

The Second Amendment Foundation notes this will be the third go-round for the case in White County Circuit Court, but it could ultimately end up before the Illinois State Supreme Court, noted SAF founder and Executive Vice President Alan M. Gottlieb. The case was brought and funded by SAF and the Illinois State Rifle Association.

The five-page order was unanimous, with Justices John B. Barberis and Barry L. Vaughan concurring with Justice Thomas M. Welch, who delivered the opinion.

Noting that, “The State has filed a motion for summary relief arguing that the basis of the court’s dismissal—that it was impossible for Brown to comply with the statute—is not one of the bases upon which a charge may be dismissed before trial,” Justice Welch confirmed the defendant, Vivian Claudine Brown “agrees that the cause should be remanded.”

“We’re delighted the courts will finally have an opportunity to hear arguments in the actual case which challenge the constitutionality of the FOID card,” Gottlieb said. “Hopefully, this time around, we won’t see the case bogged down by more procedural issues which have allowed the court to avoid addressing the main issue at hand, which is whether the FOID card requirement actually passes constitutional muster.”

The case dates back to when Brown was originally charged with unlawful possession of a firearm without also possessing a FOID card, in May 2017.

“This case has been bouncing around for six years,” Gottlieb noted, “and it is high time to move forward.”

Federal District Court issues Temporary Restraining Order on Hawaii’s ‘new’ Concealed Carry law.

https://storage.courtlistener.com/recap/gov.uscourts.hid.165717/gov.uscourts.hid.165717.66.0.pdf

The TRO Motion is GRANTED to the extent that the following
provisions are enjoined:
-the portions of § 134-A(a)(1) that prohibit carrying firearms
in parking areas owned, leased, or used by the State or a
county which share the parking area with non-governmental
entities, are not reserved for State or county employees,
or do not exclusively serve the State or county building;
-the entirety of §§ 134-A(a)(4) and (a)(12);
-the portions of § 134-A(a)(9) prohibiting the carrying of
firearms in beaches, parks, and their adjacent parking
areas; and
-the portion of § 134-E that prohibits carrying firearms on
private properties held open to the public.