Category: Courts

FPC Files For Injunction Against Washington “Large Capacity” Magazine Ban

Firearms Policy Coalition (FPC) announced that it has filed a motion for summary judgment in its Sullivan v. Ferguson lawsuit, which challenges Washington’s unconstitutional ban on common firearm magazines. The motion can be viewed at FPCLegal.org.

“There can be no serious dispute that the magazines Washington bans are ‘in common use’—there are hundreds of millions of them [] owned by tens of millions of Americans as private surveys and industry and government data all corroborate,” argues the motion. “Indeed, courts across the country have repeatedly found that these magazines are commonly owned and widely chosen by Americans for self-defense and other lawful purposes. That fact decides this case, and Plaintiffs are entitled to judgment in their favor.”

“There are few things more offensive than politicians arbitrarily preventing people from possessing the tools they deem necessary to protect their lives, loved ones, and communities,” said Cody J. Wisniewski, FPCAF’s General Counsel and Vice President of Legal, and FPC’s counsel in this case. “The magazines that Washington bans are constitutionally protected and it does not have the power to infringe on the rights of Washingtonians by banning them. We’re hopeful that the Court will see the error of Washington’s ways.”

FPC is joined in this lawsuit by the Second Amendment Foundation.

Federal judge in Colorado blocks law raising age requirement for gun purchases

A federal judge in Colorado on Monday temporarily blocked a state law that raised the legal age requirement for purchasing a firearm to 21.

Chief U.S. District Judge Phillip A. Brimmer ruled in favor of the gun rights group, Rocky Mountain Gun Owners, who had filed a lawsuit against Gov. Jared Polis.

The state law, SB23-169, was one of several sweeping gun reform measures approved by the state legislature and signed by Gov. Polis in the spring. It sought to prohibit people under the age of 21 from purchasing a gun, with exceptions for active members of the U.S. armed forces, peace officers, and people certified by the Peace Officer Standards and Training board.

RMGO argued in their lawsuit that law was unconstitutional. The group said if people are allowed to vote when they turn 18, they should be allowed to purchase a gun.

“Since the day this legislation was introduced, we knew it was unconstitutional,” said RMGO executive director Taylor Rhodes in a written statement. “Under the Golden Dome, at the unveiling of this proposal, RMGO warned the bill sponsors this would quickly be struck down by a federal judge. Today, our crystal ball became a reality.”

 

How a “poison pill” in NYSRPA v. Bruen is being exploited by a lower court

The last year has seen some significant successes in the restoration of our Second Amendment rights. From coast to coast, unreasonable gun laws written for the express purpose of harassing law-abiding citizens and infringing on the rights of the body politic are being struck down. Before the Bruen text/history/tradition test, just about every infringement was rubber-stamped by biased anti-Rights judges who always put a thumb on the scale in favor of restrictions.

Unfortunately, there is a sort of “poison pill” in the Court’s Bruen decision that provides a small loophole that anti-Rights judges can drive a truck through. This is the “unprecedented Societal Concern or dramatic technological changes” caveat in the Supreme Court’s opinion:

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.

The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted).

Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U.S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”).

To be fair, the Court’s opinion talks about the importance of the right to keep and bear arms and how it has a fixed meaning and leaves it up to judges to apply those basic principles to circumstances beyond what the Founders specifically anticipated. The context, however, is not the infringement of rights but consistent support for rights over time. To drive home the point, the Court provides an example from United States v. Jones, and talks about how the installation of a GPS tracker was a physical intrusion that would have been considered a search. The Founders lived during an era when there was no electricity, but the Fourth Amendment is still applicable to small GPS devices that use signals from orbiting satellites to determine someone’s location.

But judges with inherent bias will take advantage of even the smallest opening, and we saw that yesterday at the United States District Court for the District of Connecticut in National Association for Gun Rights v. Lamont, which deals with Connecticut’s “assault weapons” ban. The plaintiffs in this case sought to get a preliminary injunction to stop the enforcement of Connecticut’s “assault weapons” ban. The Court denied the injunction, saying that the plaintiffs have failed to show their likelihood of success on the merits.

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Federal judge bizarrely contends that most firearms can be banned without violating the Second Amendment

Last month, U.S. District Judge Janet Bond Arterton tossed out a lawsuit challenging Connecticut’s ban on concealed carry in state parks, ruling that the plaintiff in the litigation didn’t have standing to sue because there was no credible threat of him being arrested or prosecuted for violating the ban. That was an exceedingly odd decision, but it kept the ban in place (at least for now), which counts as a win as far as anti-gunners are concerned.

Now Arterton has followed up with another legal doozy, rejecting a preliminary injunction against the state’s newly-expanded ban on so-called assault weapons and large capacity magazines by declaring that the Supreme Court’s Second Amendment jurisprudence allows for bans on commonly-owned weapons, and that “only a ban on firearms that are so pervasively used for self-defense that to ban them would ‘infringe,’ or destroy, the right to self-defense” would violate our right to keep and bear arms.

Under Arterton’s interpretation of Heller, McDonald, Caetano, and Bruen everything from bolt-action hunting rifles to single-barreled shotguns could be banned without calling into question the right to keep and bear arms; presumably leaving only some (but likely not all) handguns protected by the Second Amendment’s language.

Unlike the broader category of handguns at issue in Heller and Bruen, the record developed here demonstrates that assault weapons and LCMs are suboptimal for self-defense.

A set of statutes that bans only a subset of each category of firearms that possess new and dangerous characteristics that make them susceptible to abuse by nonlaw abiding citizens wielding them for unlawful purposes imposes a comparable burden to the regulations on Bowie knives, percussion cap pistols, and other dangerous or concealed weapons, particularly when “there remain more than one thousand firearms that Connecticut residents can purchase for responsible and lawful uses like self-defense, home defense, and other lawful purposes such as hunting and sport shooting.”

Well hang on there. If, according to Arterton, only those arms that are “pervasively” used in self-defense cannot be banned, then firearms most commonly used for lawful purposes such as hunting and sport shooting have no protection whatsoever under the Second Amendment, regardless of whether or not the state of Connecticut still allows them to be sold.

You can read Arterton’s lengthy dissertation for yourself here, but I’ll caution you before you start that her opinion reminds me of the apocryphal quote attributed to W.C. Fields; if you can’t dazzle them with brilliance baffle them with bullsh**. Arterton definitely left me scratching my head on multiple occasions, such as her rejection of the use of FBI crime statistics that point to rifles of any kind being rarely used in homicide because the data supposedly “provides limited relevant insight” since they “these statistics do not track what types of firearms are used with enough precision to determine whether they are assault weapons.” Arterton, meanwhile, blithely took the state’s “expert” John Donohue of Stanford University at face value, though Donohue has maintained that the individual right to keep and bear arms was created by the Supreme Court in Heller and was not a pre-existing right protected by the Second Amendment in 1791.

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In reality, there are 4 branches of government:
– Executive
– Legislative
– Judicial
– Jury,  as in Jury Nullification
This is an example

In first trial for feeding homeless outside Houston library, jury finds Food Not Bombs not guilty

The first of a controversial series of tickets Houston has issued the volunteer group Food Not Bombs went to trial Friday. And before the end of the day, a jury found the volunteer, Phillip Picone, not guilty of violating city law for feeding those in need in front of the Central Library.
The ordinance was put in place by City Council in 2012 but largely had gone unenforced for over a decade, municipal records show. The city began issuing tickets after funding its own dinners at a police parking lot just outside the courthouse doors where the trial was being heard. Houston has declared that the lot is the approved public site for any group that wants to give away meals.
In an emailed statement, a city spokesperson explained that the meal program Houston is funding at the police parking lot is designed to use food to attract people to a place where they can engage with an array of services “on a reoccurring basis.”
“This is why we fight back,” Picone said after the verdict.
As of the hearing, Food Not Bombs had received 45 tickets, each seeking $254, for continuing to pass out meals at the library instead. Volunteers have argued that the law is immoral and violates their freedoms of expression and religion.Nine more tickets are scheduled for court Thursday and Friday.
“The City of Houston intends to vigorously pursue violations of its ordinance relating to feeding of the homeless,” said Houston city attorney Arturo Michel said in a statement emailed Sunday evening. “It is a health and safety issue for the protection of Houston’s residents. There have been complaints and incidents regarding the congregation of the homeless around the library, even during off hours.” The city has also decided to stop using the Central Library as an official cooling center during heat emergencies like the one unfolding this week.
During jury selection Friday, Picone’s lawyer, Paul Kubosh, explained the Houston law to potential jurors with slices of cake wrapped in cellophane.
One by one, he placed them atop a wooden partition separating him from the jurors, recalled two Food Not Bombs volunteers present. If he gave five slices to people in need, without permission of the property owner, he was fine, he said, according to the volunteers. If he gave six, he’d be violating the ordinance. And if he gave them to people who were not in need, that was also fine. (Kubosh is representing a number of people in Picone’s situation free of charge.)

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Florida judge tosses gun possession cases now that permitless carry is in effect

On July 1st, it became legal in Florida for lawful gun owners to carry a concealed firearm without the need for a government permission slip. While the start of permitless carry hasn’t led to the state devolving into the Wild West or an anarchic dystopia, it has left courts around the state wrestling with what to do about those individuals who were arrested and charged with carrying without a license before the new law took effect.

On Tuesday, an Orange County courtroom was the setting for both a judge and prosecutors to throw out more than a half-dozen cases, though not every defendant is in the clear.

In a rapid-fire hearing Tuesday, an Orange County judge dismissed five cases of people charged with illegally carrying a concealed firearm that began before Florida’s new permit-less carry law took effect, while prosecutors opted to drop charges against two others.

The seven total decisions were made in a nine-minute span, with prosecutors and defense attorneys mostly referring to written arguments and saying little out loud.

Judge Mark Blechman did not give a reasoning when announcing his decision, but the few questions he asked suggested he was following the guidelines set out by the new law.…

So far, attorneys said Orange County’s court system has acted similarly to a roulette wheel, with attorneys getting different outcomes in each court room they argue in.

“I have about five pending right now with motions in various divisions,” Kathleen Gillard, whose client was among Blechman’s dismissals, said. “One judge still has it under advisement. I had watched a hearing last week where another judge granted somebody’s motion.”

Many attorneys have not yet asked their judges to dismiss their cases. Attorney Roger Weeden speculated it was because they were waiting to see how the early rulings would go. It’s estimated that there are hundreds of charges pending in various stages of the court system in Orange and Osceola counties alone.

Weeden said he himself had a half dozen cases he was working to offload, and hoped Tuesday would begin a domino chain.

“The judges are all going to be mindful of what the other judges are doing,” he explained.

Though prosecutors dropped the charge of carrying without a permit in two cases, both defendants are still facing charges for more serious crimes, according to State Attorney Monique Worrell.

The action by Judge Blechman seems like the most appropriate course to take. If the actions of those defendants were against the law when they were arrested, but the law now allows them to legally carry, what benefit is served by bringing them to trial or even offering them a plea deal in exchange for admitting guilt? The criminal justice system in this country is plagued with inefficiency and an over-reliance on plea bargains as it is, and clogging up courtrooms with non-violent, possessory carry cases that are no longer a crime is a terrible use of taxpayer dollars and the finite resources of prosecutors, public defenders, and the judiciary, not to mention a nightmare when it comes to protecting civil rights.

It’s unclear how many of the “hundreds” of outstanding cases around the state are purely possessory in nature, but there’s no reason why judges and/or prosecutors can’t dismiss the charges of carrying without a license while keeping any underlying charges in place. Florida’s criminal justice system, like its legislature, should be focused on delivering consequences for crimes of violence, not fueling infringements on our fundamental right to bear arms that have since been wiped off the books.

Judge vacates Bowe Bergdahl’s desertion conviction

FALLS CHURCH, Va. — A federal judge on Tuesday vacated the military conviction of Bowe Bergdahl, a former U.S. Army soldier who pleaded guilty to desertion after he left his post and was captured in Afghanistan and tortured by the Taliban.

The ruling from U.S. District Judge Reggie Walton in Washington says that military judge Jeffrey Nance, who presided over the court-martial, failed to disclose that he had applied to the executive branch for a job as an immigration judge, creating a potential conflict of interest.

Walton noted that former President Donald Trump had strongly criticized Bergdahl during the 2016 presidential campaign. Bergdahl’s lawyers argued that Trump’s comments placed undue command influence on Nance.

Walton rejected the specific argument surrounding undue command influence, but he said a reasonable person could question the judge’s impartiality under the circumstances.

Bergdahl was charged with desertion and misbehavior before the enemy after the then-23-year-old from Hailey, Idaho, left his post in Afghanistan in 2009. He said he was trying to get outside his post so he could report what he saw as poor leadership within his unit, but he was abducted by the Taliban and held captive for nearly five years.

During that time, Bergdahl was repeatedly tortured and beaten with copper wires, rubber hoses and rifle butts. After several escape attempts, he was imprisoned in a small cage for four years, according to court documents.

Several U.S. service members were wounded searching for Bergdahl. In 2014, he was returned to the U.S. in a prisoner swap for five Taliban leaders who were being held at Guantanamo Bay.

The swap faced criticism from Trump, then-Sen. John McCain and others. Both Trump and McCain called for Bergdahl to face severe punishment.

In 2017, he pleaded guilty to both charges. Prosecutors at his court-martial sought 14 years in prison, but he was given no time after he submitted evidence of the torture he suffered while in Taliban custody. He was dishonorably discharged and ordered to forfeit $10,000 in pay.

His conviction and sentence had been narrowly upheld by military appeals courts before his lawyers took the case to U.S. District Court, resulting in Tuesday’s ruling.

The Justice Department declined comment on the ruling Tuesday.

Eugene Fidell, one of Bergdahl’s lawyers, said he was gratified by the ruling and said Walton’s 63-page opinion shows how meticulous he was in rendering the ruling.

Calls and emails to the immigration court in Charlotte, North Carolina, where Nance now serves as an immigration judge, were not returned Tuesday evening.

Federal judge blocks Biden’s controversial asylum policy in a major blow to administration.

A federal judge on Tuesday blocked President Joe Biden’s controversial asylum policy, delivering a major blow to the administration, which has leaned on the measure to drive down border crossings. The judge put the ruling on hold for 14 days for a possible appeal.

The ruling against the Biden administration could have major implications on the US-Mexico border, where crossings have plummeted since the rollout of the asylum policy, among other measures. A Justice Department spokesperson told CNN that the department plans to appeal.

“The Justice Department disagrees with the district court’s ruling today in the East Bay case and intends to appeal the decision and to seek a stay pending appeal. We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws,” the spokesperson said.

Judge Jon Tigar of the California Northern District Court previously ruled against a similar policy under the Trump administration and expressed skepticism that there was any daylight between Biden’s policy and the Trump-era one during a court hearing last week. Administration officials have rejected the comparison to Trump-era rules.

The Biden administration has rolled out a series of measures to try to stem the flow of migration and manage the situation along the US-Mexico border but is facing multiple lawsuits from Republican states as well as advocates, posing a risk to Biden’s border plans.

Tigar’s ruling stems from a lawsuit brought by the American Civil Liberties Union among other immigrant rights groups over a new asylum rule that largely bars migrants who passed through another country from seeking asylum in the United States, marking a departure from decades-long protocol.

The Biden policy, like the Trump-era one, garnered wide condemnation from Biden allies, including Democratic lawmakers and immigrant advocates when it was rolled out. “To be clear, this was not our first preference or even our second,” an administration official conceded at the time, adding that the onus is on Congress to pass reform.

The ACLU applauded the ruling in a statement.

“The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”

The Justice Department is expected to appeal the ruling. If the Justice Department moves ahead with an appeal, the case will go to the Ninth Circuit, which twice affirmed Tigar’s rulings on similar policies under Trump.

During last week’s hearing, Justice Department lawyer Erez Reuveni argued that the rule has exemptions and that there are other lawful pathways that have been made available to migrants seeking to come to the United States.

Migrants who secure an appointment through the CBP One app to present at port of entry, for example, are exempt. While there are some exceptions, the rule generally applies to migrants who unlawfully cross the US-Mexico border. It doesn’t apply to unaccompanied migrant children.

Blocking the rule, Reuveni told Tigar, would “potentially undermine the ability to negotiate” with countries who have partnered with the US to manage the flow of migration.

Eiland, who argued on behalf of the plaintiffs, said the rule put migrants in harm’s way and that the regulation itself doesn’t provide any additional pathways. “There are no carrots that the rule itself actually offers,” she said.

Administration officials have pointed to a dramatic drop in border crossings since the end of a pandemic policy, known as Title 42, that allowed for the quick expulsion of migrants, as evidence that the administration’s approach, including increased deportations and tougher penalties.

In June, US Border Patrol arrested nearly 100,000 migrants along the US southern border, marking a decrease from May and marking the lowest monthly border encounters since February 2021, according to US Customs and Border Protection data.

But the Biden administration has continued to grapple with unprecedented mass movement of people in the Western hemisphere, which is the outcome of the coronavirus pandemic decimating conditions in the region.

The shifting migration patterns has put a strain on federal resources, as border authorities have encountered an increasing number of Cubans, Venezuelans and Nicaraguans. The US is largely barred from deporting migrants from those nationalities back to their home countries because of strained diplomatic relations.

Tigar concluded that the programs that provide migrants an avenue to apply to lawfully migrate to the US are specific to certain nationalities and not meaningful options for all asylum seekers.

“The Rule therefore assumes that these exceptions will, at the very least, present meaningful options to noncitizens subject to the Rule. Parole programs are not meaningfully available to many noncitizens subject to the Rule. Though other parole programs exist, the Rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan, and Ukrainian nationals. These programs are country-specific and ‘are not universally available, even to the covered populations,’” he wrote.

He also said that the government violated a law known as the Administrative Procedures Act – which sets certain guidelines for how agencies can roll out policies – in its implementation of the asylum rule.

“To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility,” Tigar wrote. “The Rule is therefore arbitrary and capricious.”

Christians Arrested For Outdoor Church Service During COVID-19 Win $300,000 Lawsuit.

A primarily liberal college town in Idaho has agreed to pay $300,000 to three Christian churchgoers who sued the city after being imprisoned for failing to wear face masks or maintain social distance measures at an outdoor service during the peak of the COVID-19 outbreak.

The city of Moscow, Idaho, announced this week that it would settle the lawsuit with Gabriel Rench and Sean and Rachel Bohnet, who filed a case against city officials in March 2021.

They asserted that their rights under the First and Fourth Amendments were violated when they were arrested at an outdoor “psalm sing” led by church leaders in September 2020.

Moscow, Idaho, is a community of around 25,000 inhabitants located approximately 80 miles south of Spokane, Washington. The church named in the lawsuit, Christ Church, is a small congregation of about 1,000 members that is part of the Communion of Reformed Evangelical Churches.

At the time of the incident, Officers took Rench’s hymn book before hauling him away in handcuffs to the county jail, where he and others were kept for several hours, according to video of the arrests, which went viral and was blasted at the time on the Twitter platform.

The calm worship service lasted only 20 minutes in front of Moscow City Hall, where local authorities had put little yellow dots six feet apart to guide participants in COVID-19 6-feet-apart social distancing.

Rench and the other two were accused of breaching the city’s periodically amended health law. However, a magistrate court later dropped the city’s case against them.

U.S. District Court Judge Morrison C. England, Jr., noted that the “plaintiffs should never have been arrested in the first place,

“Somehow, every single city official involved overlooked the exclusionary language [of constitutionally protected behavior] in the Ordinance,” the judge wrote.

Rench said that the situation in Moscow could be described as a sort of “microcosm” of concerns occurring throughout the country and overseas.

“I think it’s no secret that portions of our government and political groups are now starting to target Christians in a way that has never really happened in America or [even] Canada,” he said, referencing the pastors who have been jailed in neighboring Canada recently for holding church services.

“I’m in a conservative state, but I live in a liberal town, and the liberals had no problem arresting me for practicing my religious rights and my Constitutional rights,” Rench said. “But my [Republican] governor also didn’t defend me either. If you look at what’s going on in Canada, I think America’s 10 years, at most 20 years, behind Canada if we don’t make significant changes.”

One thing that Rench said he learned from the whole incident is that “hardened” political leaders cannot be expected to modify their mental processes or political ideals.

“What needs to happen is the people need to change how they vote and disincentivize the targeting of Christians and those who are genuinely trying to defend the Constitution,” he maintained.

“Under the terms of the settlement agreement, ICRMP will pay a total settlement amount of $300,000 and all claims against the City and the named City employees will be dismissed with prejudice along with a release of all liability,” the release said, including that the settlement will “provide(s) closure of a matter related to the unprecedented COVID-19 pandemic and the City’s efforts to protect the public during an exceptionally trying time.”

More judges trying their hardest to slow down what SCOTUS did to gun control laws.

Federal Judge Upholds San Jose Gun Ownership Tax, Insurance Mandate

San Jose’s first-of-its-kind gun ownership insurance mandate doesn’t violate the Second Amendment, according to a federal judge.

U.S. District Judge Beth Freeman ruled against the National Association for Gun Rights (NAGR) last Thursday. She found the California city’s requirement that gun owners pay a fee to a yet-to-be-determined anti-gun-violence charity group and obtain insurance is constitutional. She ruled the regulations stand up against the Supreme Court’s new history-based test for gun laws and did not infringe on residents’ rights.

“The City has demonstrated that the Insurance Requirement is consistent with the Nation’s historical traditions,” Judge Freeman wrote in NAGR v. San Jose. “Although the Insurance Regulation is not a ‘dead ringer’ for 19th century surety laws, the other similarities between the two laws would render the Ordinance ‘analogous enough to pass constitutional muster.’

The ruling is a win for gun-control advocates who are looking for ways to restrict firearms even in the wake of 2022’s New York State Rifle and Pistol Association v. Bruen. It allows the city to continue to attempt to implement its unique requirements, which have been scaled back significantly from when they were first introduced. The decision also boosts the odds that lawmakers in states, such as New Jersey, who’ve sought to copy the restrictions might survive court challenges as well.

Judge Freeman, an Obama appointee, also ruled the gun ownership fee was not a tax for the purpose of California law and did not need voter approval because it goes to a non-profit rather than the government.

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The Only Legitimate Framework

This court is not interested in the outcomes of single cases alone. The conservative majority has greater ambitions: to impose its conception of the Constitution as the only legitimate framework within which to interpret the law.

Caitlin B. Tully
June 25, 2023
Rethinking the Liberal Giant Who Doomed Roe

She says this as if it were a bad thing. And, in my mind, how could it be legitimate any other way?

I am reminded of Lewis Carroll’s Humpty Dumpty:

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.

And that is why the political left is so upset at the current SCOTUS. The political left is intent upon being the master of all and if the U.S. Constitution were to be interpreted as written they would have, comparatively, no power.

This is legal stonewalling by a judge who purposefully flips what SCOTUS ruled in Heller, Caetano and Bruen in what she hopes will take years of legal wrangling in the off chance that either or both Justices Alito and Thomas pass on and a demoncrap administration can appoint anti-gun Justices and get all these case law restorals of the 2nd amendment protections on RKBA undone…because the unwashed masses really shouldn’t have the means to tell goobermint where to go, and make it stick.

Federal Court Ruling Upholding Oregon Gun Law Will be Appealed

U.S.A. — A federal district judge’s ruling upholding the constitutionality of Oregon’s restrictive gun control Measure 114 will definitely be appealed, the head of the Second Amendment Foundation assured via email with a terse one-word statement.

SAF founder and Executive Vice President Alan Gottlieb, responding to an email inquiry asking, “Certainly, there will be an appeal, right?” responded bluntly: “Right.”

The ruling was immediately blasted by the Oregon Firearms Federation (OFF), one of several plaintiffs challenging the law in a consolidation of four federal lawsuits, two of which involve SAF and several partners. In a scathing reaction, OFF declared Judge Immergut’s ruling “absurd” and further said her decision was “against gun owners, the Second Amendment and a basic understanding of the English language.”

Immergut’s ruling does appear oblivious to facts involving firearms and self-defense when, on Page 120, she states, “The Supreme Court has held that Second Amendment protects an individual right to self-defense inside and outside of the home. LCMs are not commonly used for self-defense, and are therefore not protected by the Second Amendment.”

This seems to ignore the prevalence of modern semi-automatic pistols, which are commonly used for personal protection, and which come from the factory with magazines holding more than 10 cartridges.

According to The Hill, Oregon Attorney General Ellen Rosenblum praised the ruling while acknowledging the law still cannot be enforced because it is still being challenged in state court. A judge in Harney County has scheduled a trial in September. By that time, Judge Immergut’s decision will likely have been appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco.

Rosenblum, a Democrat, was quoted by The Hill, stating, “Our team looks forward to ultimately prevailing in the state courts as well.”

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Federal Appeals Judge Speaks to The Four Boxes Diner about the 2nd Amendment, Justice Thomas & Originalism

Federal court rules Measure 114 constitutional despite criticism

The ruling (hold onto your hat for the legal acrobatics the judge used)

PORTLAND, Ore. (KOIN) – Oregon’s Measure 114 is constitutional, according to a ruling by the U.S. District Court for the District of Oregon.

The federal court ruled in Oregon’s favor in a lawsuit against the gun control measure approved by voters by a slim margin in 2022. The ruling means the state may ensure Oregonians get a permit before obtaining firearms, require a state police-maintained permit/firearm database and prohibit “large capacity” ammunition magazines.

There is an exception for military and law enforcement.

The measure describes “large capacity” magazines as “fixed/detachable magazines (or functional equivalent) that can accept ‘more than 10 rounds of ammunition and allows a shooter to keep firing without having to pause to reload.’” The measure also includes exceptions for “’lever-action’ firearms and permanently altered fixed magazines, 10 rounds or fewer.”

The plaintiff’s attorney made the case that magazines are critical for the gun, so they should be considered arms, but attorneys defending Measure 114 argued that detachable magazines are accessories – not firearms – and don’t affect the operability of the gun itself.

In response to the measure’s ruling, Jess Marks, the executive director of the Oregon Alliance for Gun Safety, issued the following statement:

“We know Measure 114 is an effective and life-saving policy, and now a federal judge has ruled it is also in line with the U.S. Constitution. The Supreme Court has articulated that Second Amendment rights are not unchecked — they come with responsibilities — and the U.S. District Court affirmed this in our case. This victory belongs to those who have lost loved ones to gun violence and to every Oregonian who demanded change.”

“Our team looks forward to ultimately prevailing in the state courts as well,” she said. “Measure 114’s provisions – passed by Oregon voters – are common sense safety measures that will save lives.”

SAF FILES AMICUS BRIEF SUPPORTING CHALLENGE OF HAWAII GUN LAW

BELLEVUE, WA – The Second Amendment Foundation has filed a 29-page amicus brief supporting a motion for a temporary restraining order and preliminary injunction in a challenge of Hawaii’s restrictive concealed carry law, in a case known as Wolford v. Lopez.

The brief was filed in U.S. District Court for the District of Hawaii.

As explained in the court document, Hawaii “has followed New York, New Jersey, and Maryland in taking deliberate action to undermine the Supreme Court’s landmark Bruen ruling and the fundamental general right to carry an effective mechanism of self-defense it affirmed. Hawaii’s SB 1230 and similar laws specifically, and unfairly target those who have taken their rights most seriously in attempting to exercise them, even submitting to Defendants’ background check and training requirements.”

Following the 2022 Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, Hawaii passed SB 1230, a sweeping law designed to severely limit the places where licensed, law-abiding citizens can legally carry firearms for personal protection. So restrictive in its nature, the new legislation was colloquially dubbed the “Bruen response bill.”

“As we contend in our brief,” said SAF founder and Executive Vice President Alan M. Gottlieb, “Hawaii’s new law is written to make citizens afraid to exercise their constitutional right to bear arms, to the point they’re even afraid to enter a coffee shop without first being invited. We cannot have law-abiding citizens afraid to exercise a right for fear of being prosecuted and made into criminals. That is not how constitution works, and specifically, it is why the Second Amendment includes the phrase ‘shall not be infringed.’ SB 1230 constitutes a serious infringement.”

“There are no historical analogues supporting the extreme nature of Hawaii’s gun law,” added SAF Executive Director Adam Kraut. “To the contrary, as we explain to the court, history shows lawmakers respected Second Amendment rights as part of everyday life, to the point of encouraging people to bring their guns to public meetings and even church. Hawaii, on the other hand, is trying to make have a gun outside of one’s home or private vehicle a crime.”

Experts See Uncertainty in New Supreme Court Gun Case

The nation’s highest court is set to decide a new Second Amendment case, but how the justices might come down is murky at best.

A collection of experts from across the ideological spectrum who have spent decades studying the Second Amendment and American gun laws told The Reload United States v. Rahimi presents a unique challenge for the Court that will likely flush out its new test for gun cases. But they were less confident about the direction the justices might take or the conclusion they might arrive at.

“It is still too early to tell what the Supreme Court will do in Rahimi,” George Mason University professor Robert Leider, who writes about the Second Amendment and teaches at the Antonin Scalia Law School, said.

Rahimi will be the first gun case the Supreme Court takes up since it handed down a new Second Amendment test in last year’s New York State Rifle and Pistol Association v. Bruen. It is an appeal of a Fifth Circuit panel’s ruling that found the federal ban on those subject to domestic violence restraining orders possessing guns was unconstitutional under the Bruen test. It stems from a case against a Texas man who pled guilty to violating a restraining order his child’s mother had against him over accusations he assaulted her when police found he had guns in his home. The police were able to search his home and find the guns because he is also accused of carrying out multiple shootings unrelated to the situation with his ex-girlfriend.

“Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society,” Judge Cory T. Wilson wrote for the panel. “Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8) ‘s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.”

The Department of Justice (DOJ) decided to skip appealing to the full Fifth Circuit and head straight to the Supreme Court, which agreed to take up the case late last month. All of the experts who spoke with The Reload agreed that move was a potentially-smart piece of strategic litigating by Attorney General Merrick Garland (D.) and the DOJ.

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SAF FILES REPLY BRIEF IN CHALLENGE OF MARYLAND CCW LAW

BELLEVUE, WA – Attorneys representing the Second Amendment Foundation and its allies in a federal challenge of Maryland’s restrictive concealed carry statute today filed their reply to the state’s arguments against an earlier motion for a preliminary injunction in the case known as Novotny v. Moore.

The response brief was filed in U.S. District Court for the District of Maryland.

SAF is joined in the case by Maryland Shall Issue, the Firearms Policy Coalition and three private citizens, all of whom possess “wear and carry permits,” including Susan Burke of Reisterstown, Esther Rossberg of Baltimore, and Katherine Novotny of Aberdeen, for whom the lawsuit is named. They are represented by attorneys David H. Thompson and Peter A. Patterson at Cooper & Kirk in Washington, D.C., Mark W. Pennak at Maryland Shall Issue in Baltimore, and Matthew Larosiere from Lake Worth, Fla.

The lawsuit focuses on SB1, a bill signed by Gov. Wesley Moore, which has added new restrictions on where legally-licensed citizens may carry firearms for personal protection. Maryland is attempting to wildly expand so-called “sensitive places” in an attempt to virtually prohibit lawful, licensed concealed carry in almost every venue in the state outside of someone’s home or business.

“As we maintained in our initial lawsuit, the State of Maryland is desperately trying to justify its extremist policy by offering alleged historical analogues that don’t really exist,” said SAF founder and Executive Vice President Alan M. Gottlieb. “As we noted earlier, instead of trying to comply with the new guidelines set down in the Supreme Court’s Bruen ruling last year, Maryland lawmakers responded by adopting gun laws more restrictive than they were before. This is tantrum-level stubbornness usually confined to elementary school playgrounds, and it doesn’t belong in state legislatures or governors’ offices.”

“Today’s brief further underscores the fact that Maryland’s recently enacted restrictions on carry are incompatible with this nation’s history and tradition of firearms regulation,” said SAF Executive Director Adam Kraut. “In defense of its law, Maryland grasps at straws and reasoning well removed from a logical pathway to justify its new existence. Our brief systemically refutes the positions put forth by the government and demonstrates that the challenged restrictions are constitutionally impermissible.”

Supreme Court Considering a Case That Might Upend Hundreds of January 6 Prosecutions

Prosecutorial overreach is not uncommon in high-profile cases. The prosecutors pile on the charges to frighten defendants with the prospect of long prison terms so they plead out. The state also hopes to throw enough charges against the wall to see what sticks.

But the danger of overreach is that a judge may want to smack a prosecutor down for bringing unnecessary charges. Such is the case in the January 6 prosecutions.

One of the rioters, Edward Lang, is facing 11 charges and pleaded not guilty to all of them. But a district court judge threw out the charges relating to “obstruction of an official proceeding” concerning Lang and two others accused of violence at the Capitol.

The law in question sentences a guilty party to up to 20 years in prison for anyone who “corruptly alters, destroys, mutilates, or conceals a record, document,” or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Lang is questioning whether the Sarbanes-Oxley statute fits the behavior of hundreds of rioters.

Sarbanes-Oxley was passed in response to financial malfeasance in the 2002 bankruptcies of telecom giant Worldcom and Enron, an energy company based in Houston. Lang argues that the obstruction defined in Sarbanes-Oxley bears no relationship to the violence that occurred on January 6, 2021.

The New York Sun:

The panel of the United States Appeals Court for the District of Columbia, though, by a 2-to-1 margin, upheld the use of the obstruction charge, deciding that Judge Nichols’s reading was too cramped. Judge Pan, writing for the majority, ruled that the “broad interpretation of the statute — encompassing all forms of obstructive acts — is unambiguous and natural.”

The request for a hearing before the Nine asks whether the statute, intended to clamp down on financial malfeasance, “can be used to prosecute acts of violence against police officers in the context of a public demonstration that turned into a riot.” Mr. Lang argues that a “statute intended to combat financial fraud has been transformed into a blatant political instrument to crush dissent.”

Lang’s petition before the high court warns that a “revolution is underway, with ambitious federal prosecutors reworking the penal code to make it do work never intended to be done, work that threatens to chill, and does chill, ordinary Americans in their First Amendment rights.” The petition says there’s no need to “create a new and novel application of a statute to capture the violence that took place that day.”

Lang argues that the obstruction must be done “corruptly,” which doesn’t appear to be the case in his prosecution. And finally, Lang warns that this prosecutorial strategy “will serve to chill political speech and expression on the eve of one of the most consequential events in American life — the election of the next President of the United States.” He says it “falls to this Court to rein in the Department of Justice.”

It’s easy to argue that there is a certain amount of vindictiveness in many of these prosecutions. The question facing the court will be, did prosecutors go too far in fashioning a legal argument to prosecute based on a loose interpretation of a statute that was never meant to cover violence during a riot?

Courts are reluctant to reign in prosecutors, but in this case, there’s a chance the Supreme Court might look to cut the DoJ’s misused freedom of action and bring them down a peg.

For some rioters, it could mean the difference between prison and freedom. For others, taking a 20-year sentence off the table will be, if nothing else, a relief.

Connecticut state parks gun ban challenge dismissed

Connecticut’s ban on guns in state parks has survived a challenge.

A federal judge dismissed a lawsuit where a man had argued the policy violated his Second Amendment rights.

For folks enjoying the outdoors, there are mixed feelings about the current ban on guns in state parks and forests without authorization.

“There’s no need for a gun in a park with families,” said Connie DeMonte of Middletown.

“I believe people have the right to defend themselves no matter where they are,” said Scott Taffaro of Manchester.

On Wednesday, a federal judge threw out a challenge to the rule.

“This is an important decision, but it doesn’t really get to the heart of the matter. The judge dismissed the case on standing grounds, which is lawyer talk for, you don’t actually have the right to file this lawsuit,” said Mike Lawlor, University of New Haven criminal justice associate professor.

This rule has actually been around for more than 100 years and apparently there’s no record of it ever being enforced. That’s part of why the judge tossed out the case, though the fight is potentially not over.

In the lawsuit filed against the Department of Energy and Environmental Protection commissioner, David Nastri argued the ban prevented him from carrying a gun for self defense.

His lawyer says they will appeal and wrote in part:

“We are profoundly disappointed in the district court’s ruling, which we believe is significantly at odds with U.S. Supreme Court precedent and is based on an unprecedented legal fiction.”

The state attorney general applauded the dismissal, writing in part:

“Connecticut’s commonsense gun laws are life-saving and constitutional– they strike the right balance between respecting Second Amendment rights while also protecting public safety.”

Among those we talked with at the parks just happened to be the father of Lieutenant Dustin DeMonte – the Bristol Police officer shot and killed in the line of duty.

Philip DeMonte is against guns in the parks.

“I don’t need to have to worry or even want to have to worry about that. Because, I mean, there’s a lot of craziness out there already,” DeMonte said.

Lawlor said he believes if a case does move forward, judges would back governments having the right to regulate access to parks.

He points out there are rules about other things you can’t bring in like alcohol in some parks.