Category: Courts

Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule
The Supreme Court is set to decide whether the agency may expand criminal liability under the Gun Control Act.

On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms “firearm” and “firearm frame or receiver.”  This is the first of several posts in which I’d like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.

Continue reading “”

Minnesota Update: Eighth Circuit Court Strikes Down Minnesota’s Firearm Carry Age Restrictions

The U.S. Eighth Circuit Court of Appeals issued a mandate on September 20, officially shutting down the Minnesota Attorney General’s efforts to preserve the state’s ban on firearm carry for individuals aged 18 to 20. The decision follows a legal challenge backed by the Minnesota Gun Owners Caucus, the Second Amendment Foundation (SAF), and the Firearms Policy Coalition (FPC).

The challenge was brought forward by plaintiffs Kristin Worth, Austin Dye, and Axel Anderson, who argued that Minnesota’s restrictions on carrying firearms for adults under 21 violated their Second Amendment rights. In April 2023, U.S. District Court Judge Katherine Menendez ruled in favor of the plaintiffs, but delayed an injunction against the law pending appeal.

In July, a three-judge panel from the Eighth Circuit had unanimously affirmed the lower court’s ruling. Circuit Court Judge William Benton, who wrote the opinion, noted that the language of the Second Amendment does not specify an age limit. He highlighted that while the Founders included age restrictions in other areas, such as running for political office, no such limits were placed on the right to bear arms.

“In other words, the Founders considered age and knew how to set age requirements but placed no such restrictions on rights, including those protected by the Second Amendment,” Benton wrote in the decision.

Following the panel’s ruling, Minnesota sought to have the case reheard, either by the same three-judge panel or by the full bench of the Eighth Circuit. The appeals court rejected both requests in an August 21 order, effectively setting the stage for the mandate that was issued on Friday.

With the mandate now in place, Minnesota must either revise its laws to comply with the court’s decision or appeal the case to the U.S. Supreme Court. The Minnesota Attorney General’s office has not yet commented on whether it plans to pursue further legal action.

Following the mandate, the FPC celebrated the decision on social media.

“This formalizes our victory, and the ban is now officially dead,” the FPC wrote in a post. “If it wishes to continue defending its tyranny, Minnesota must take its tears to SCOTUS.”

The ruling represents a significant win for gun rights advocates in Minnesota, marking the end of a long legal battle over age-based firearm restrictions. For now, the state’s law barring 18- to 20-year-olds from carrying firearms is effectively nullified, pending any potential appeal to the nation’s highest court.

Legal Showdown Looms Over Suppressor Bans & 2nd Amendment Rights: Carlin Anderson vs. Kwame Raoul

Editor’s Note: Judge Stephen McGlynn is currently presiding over several consolidated cases challenging Illinois’ “assault weapons” ban, including Harrel v. Raoul, Barnett v. Raoul, Langley v. Kelly, and Foster v. Raoul. These cases collectively question the constitutionality of the state’s restrictions on firearms and large-capacity magazines under the Second Amendment.

Additionally, Judge McGlynn is overseeing Carlin Anderson vs. Kwame Raoul, referenced below, which challenges Illinois’ ban on suppressors. The outcome of this case holds significant implications for gun rights advocates nationwide, particularly regarding the legal status of suppressors as protected “arms.”

The ongoing battle for Second Amendment rights took center stage in the courtroom once again in the 2nd Amendment challenge to Illinois’ assault weapons ban.  However, as that case proceeds, Mark Smith notes some of the takeaways that may impact the upcoming case of Carlin Anderson vs. Kwame Raoul.

At the heart of the 2nd case, Carlin Anderson vs. Kwame Raoul is the legal conflict of Illinois’ ban on suppressors—a critical piece of legislation that has ignited passionate debates about its constitutionality. The implications of this case extend far beyond state lines, with the potential to set a precedent in suppressor regulation across the country. U.S. District Court Judge Stephen McGlynn’s courtroom has become a pivotal battleground in determining whether these firearms accessories, often demonized by big Hollywood and anti-gun advocates, fall under the protection of the Second Amendment.

Continue reading “”

Engineer testifies during 2nd Amendment challenge to Illinois assault weapons ban

An engineer who spent decades designing weapons for one of the world’s leading gun manufacturers testified Tuesday that the assault-style weapons now banned in Illinois are intended only for civilian use and cannot be easily converted into military-grade firearms.

James Ronkainen, a former engineer for the Remington Firearms, said the AR-style rifles and many other weapons that are now heavily restricted under the Protect Illinois Communities Act, are classified in the industry as “modern sporting rifles,” or MSRs, and he said ordinary users of such weapons cannot easily convert them into fully automatic weapons.

“I don’t think they can,” he said. Ronkainen testified during the second day of a bench trial before U.S. District Judge Stephen McGlynn in a case challenging the constitutionality of the assault weapons ban. In 2008, the U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects the right of individuals to keep and bear the type of arms that are commonly used for lawful purposes such as self-defense.

But it also said not all firearms are protected under the Constitution, including certain “dangerous and unusual” weapons. Ronkainen testified that the AR-style weapons restricted under the Illinois law are widely popular with consumers and that they are intended for legal purposes, including self-defense, hunting and target shooting.

But attorneys for the state have said they plan to argue the weapons covered by the law are commonly used in mass shootings, including the one at a Fourth of July parade in Highland Park in 2022 that left seven people dead and dozens more injured. That shooting prompted Illinois lawmakers to quickly pass PICA in January of 2023.

The attorneys for the state also said they will argue that the way gun manufacturers market and sell their products to consumers should not determine whether the weapon is protected under the Constitution. The trial is scheduled to continue through Friday, but attorneys in the case have suggested it could wrap up as early as Wednesday or Thursday.

 

Federal Judge Upholds Gun Ban: What This Means for the 2nd Amendment

In a recent case out of Hawaii, a U.S. District Court has upheld a federal gun ban, denying a motion to dismiss the indictment of Christopher Chan, who was charged with unlawfully possessing a machine gun and a short-barreled rifle. Judge Derek Watson, appointed by President Obama, ruled that these types of firearms are not protected under the Second Amendment. While the court’s decision isn’t surprising, given the political landscape in Hawaii, it raises critical issues about how the Second Amendment is being interpreted today.

The Case: U.S. v. Christopher Chan

The case stems from an incident where Christopher Chan was found in possession of a short-barreled rifle and a machine gun. These are firearms that, under the National Firearms Act (NFA), must be registered, and in this case, they weren’t. Chan’s legal team argued that the charges violated his Second Amendment rights, asserting that these firearms are “arms” protected by the Constitution. They also challenged the Commerce Clause, arguing that Congress didn’t have the authority to regulate the possession of these firearms.

However, Judge Watson’s decision struck down both arguments, claiming that neither the short-barreled rifle nor the machine gun falls within the scope of the Second Amendment’s protection. This ruling is significant because it highlights the ongoing tension between federal gun laws and the constitutional right to bear arms.

Continue reading “”

Appeals court upholds Colorado’s ban on conversion therapy for minors.

Sept. 13 (UPI) — An appeals court Thursday ruled against a challenge to Colorado’s ban on conversion therapy for minors, saying the state can continue to prohibit the controversial anti-LGBTQ intervention.

In a 2-1 decision, the 10th Circuit Court of Appeals ruled the prohibition does not impinge free speech nor does it target religion. The ban aligns with the medical consensus that conversation therapy is “ineffective and harmful” and “rationally serves” the interests of the state to protect minors, the court said.

“We thus have no trouble concluding the [Minor Conversion Therapy Law] is rationally related to Colorado’s interest in protecting minor patients seeking mental healthcare from obtaining ineffective and harmful therapeutic modalities,” Judge Veronica Rossman, a President Joe Biden appointee, wrote in the ruling.

Judge Nancy Moritz, a President Barack Obama appointee, agreed with Rossman, while Judge Harris Hartz, an appointee of President George W. Bush, dissented.

Continue reading “”

Georgia judge tosses two criminal counts against Trump in Fani Willis case
Willis indicted Trump and 18 co-defendants in August of last year on Racketeer Influenced and Corrupt Organizations (RICO) charges.

Fulton County Judge Scott McAfee on Thursday dismissed two counts against former President Donald Trump in Fulton County District Attorney Fani Willis’s election case.

Willis indicted Trump and 18 co-defendants in August of last year on Racketeer Influenced and Corrupt Organizations (RICO) charges. Trump has pleaded not guilty.

McAfee specifically dropped charges related to the alleged filing of false documents in federal court, finding that prosecutors did not have the authority to bring them, Reuters reported.

While the dismissal of two counts marks a win for Trump, it was not a complete victory as McAfee permitted the case to proceed with the remaining charges.

The case, however, has been on ice amid Trump’s appeal of McAfee’s decision to permit Willis to remain on the case amid concerns over her romantic relationship with Nathan Wade, a special prosecutor whom she hired to pursue the case. McAfee ordered that either Wade or Willis step down, which Wade did the following day.

But Trump has sought to have Willis removed as well and a Georgia Appeals Court paused proceedings in June, pending oral arguments, which are set for December.

Well, of course under Bruen’s Text History and Tradition test, ALL guns ban laws are unconstitutional

Court Rules Federal Machinegun Law Cannot Be Justified under Bruen

A district court in Kansas has ruled that the federal law prohibiting the possession of “machineguns” failed the test set out in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022). “The court finds that the Second Amendment applies to the weapons charged because they are ‘bearable arms’ within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant.”

The case is United States v. Morgan, No. 23-10047-JWB (D. Kan. Aug. 21, 2024; the ruling was modified slightly on August 26). The defendant, Tamori Morgan, was charged with two counts of possessing a “machinegun” (a machinegun, and a full-auto switch “machinegun conversion device”) in violation of federal law.

That law, 18 U.S.C. § 922(o), makes it a crime, with some exceptions, to possess a “machinegun,” defined to include “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” Unlike other definitions in 26 U.S.C. § 5845, this lacks any reference to weapons that use the energy of an explosive to fire a projectile.

Continue reading “”

More of the Nashville Trans Shooter’s Manifesto Just Dropped

The Tennessee Star has published 90 pages of the manifesto belonging to the “transgender” Nashville shooter who slaughtered six victims, including three children, at a private Christian elementary school on March 27, 2023.

According to the never-before-seen excerpts legally obtained by the local newspaper, Covenant School killer Audrey “Aiden” Hale, a 28-year-old biological woman who identified as a “transgender man,” wrote about wanting “a boy body in heaven” and craving “brown love.”

“If God won’t give me a boy body in heaven, then Jesus is a f*gg*t,” Hale wrote on one page.

On another, she said, “Brown love is the most beautiful kind.”

Hale had repeatedly questioned, “why does my brain not work right?” Concluding, “Cause I was born wrong,” she lamented, “Nothing on earth can save me…never ending pain. Religion won’t save.”

In an undated entry, Hale wrote, “The [cocoon] of my old self will die when I leave my body behind and the boy in me will be free; in the butterfly transformation; the real me.”

Hale often signed off with an octagonal symbol, which first appears on the journal’s cover. The shape was drawn on the very first page, opposite where Hale wrote, “Why does my brain not work right? Cause I was born wrong!!!”

The journal, which was written between January and March of 2023, is one of many Hale had in her possession.

Police initially identified this journal, along with a spiral notebook found in the car she used to drive to the school, as the shooter’s “manifesto.” Authorities also seized approximately 20 additional journals Hale authored over a 15-year period from 2007 to 2022. Those writings are said to span about 1,000 pages.

According to the local outlet, a source familiar with the Metro Nashville Police Department (MNPD) investigation handed over the handwritten journal, which The Tennessee Star is referring to as “The Covenant Killer’s 2023 Journal” in order to distinguish it from the numerous ones predating 2023, in early June of this year.

“We believe it to be authentic,” The Tennessee Star’s editor-in-chief Michael Patrick Leahy wrote in a statement on the outlet’s website. MNPD further confirmed its authenticity in court, with a court filing submitted by MNPD Lieutenant Alfredo Alevado authenticating it.

“We have had a First Amendment right to publish these unredacted documents from the moment we legally obtained them,” Leahy stated.

Leahy then outlined in great detail the legal avenues The Tennessre Star meticulously took to acquire the manifesto:

Continue reading “”

Massachusetts Supreme Court: Switchblade Carry Ban Violates Second Amendment

The Massachusetts Supreme Court ruled Tuesday the state’s ban on carrying switchblade knives violates the Second Amendment.

The case is Commonwealth v. David E. Canjura.

Canjura was arrested on July 3, 2020, and a search of his person uncovered a knife “with a spring-assisted blade.” He was charged with “carrying a dangerous weapon,” among other charges, but challenged the constitutionality of the switchblade carry ban “in a pretrial motion to dismiss.”

He “argued that because a switchblade is an ‘arm,’ [the] prohibition on carrying a switchblade violated his Second Amendment right to bear arms for self-defense.”

The Massachusetts Supreme Court weighed Canjura’s motion via the U.S. Supreme Court’s Heller (2008) and Bruen (2022) decisions, noting, “The central component’ of the Second Amendment is the ‘inherent right of self-defense,’ which “guarantee[s] to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.”

They observed, “While both Heller and Bruen involved handguns, Second Amendment protections subsume more than just firearms.”

The Massachusetts Supreme Court then focused specifically on Bruen’s “two part test” and found “the Commonwealth does not identify any laws regulating bladed weapons akin to folding pocketknives generally, or switchblades particularly, in place at the time of the founding or ratification of the Fourteenth Amendment.”

They subsequently observed that the Commonwealth “has not met its burden of demonstrating a historical tradition justifying the regulation of switchblade knives…”

The Massachusetts Supreme Court wrote: “In this case, we are asked to decide whether…[the] prohibition against carrying a switchblade knife violates the Second Amendment to the United States Constitution, considering…Bruen. We conclude it does.”

Analysis: The First Crack Forms in Federal Machinegun Ban

For the first time, a federal judge has ruled the Second Amendment protects civilian machinegun possession.

On Wednesday, US District Judge John W. Broomes dismissed charges against a Kansas man for possessing a fully automatic .300 blackout AR-15 and Glock 33 handgun. He ruled that the federal ban on possessing or transferring machineguns (with limited exceptions) was unconstitutional as applied to the defendant.

“To summarize, in this case, the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation,” Judge Broomes wrote in US v. Morgan.

In many ways, the decision is the epitome of what some gun-rights advocates hoped the Supreme Court’s 2022 Bruen decision and the new test it laid down would bring to bear on America’s gun laws. The 1934 National Firearms Act (NFA), which marked the first time the federal government regulated machineguns by requiring registration and a $200 tax stamp, has rankled a vocal section of activists. The same is true of the 1986 Firearms Owners Protection Act, a provision of which known as the Hughes Amendment—18 USC § 922(o)—functionally banned civilian ownership of automatic weapons manufactured after its enactment.

Those activists view the federal regulations, enacted for the first time more than 140 years after the ratification of the Second Amendment, as incompatible with the Bruen standard because it prioritizes Founding-era approaches to weapons regulation when evaluating modern regulations. They see the ultimate liberalization of machinegun, suppressor, and short-barreled rifle regulations as the natural apotheosis of courts faithfully applying the Bruen test to America’s modern gun-control regime.

But court after court to address the question in recent years has rejected the idea the Second Amendment protects machineguns, largely based on the Supreme Court’s own words. Most often, they cite a section of the majority opinion in DC v. Heller that discusses the idea that fully automatic M-16s, which are functionally identical to the rifle at issue in Morgan, “may be banned.”

“We also recognize another important limitation on the right to keep and carry arms,” Justice Antonin Scalia wrote for the majority in Heller. “Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

Broomes interrogated this reliance on Heller’s brief discussion of M-16 rifles and reached a different conclusion on how much it binds courts confronting an explicit challenge to the federal ban on new machineguns.

Continue reading “”

The Fourth Circuit ignores Bruen again

The Supreme Court’s 2022 Bruen decision held, with crystal clarity, the Second Amendment is an individual right, which extends to keeping and bearing arms not only in one’s home or on one’s property, but in public, with some limited exceptions. Not only did Bruen reaffirm the Second Amendment as a fundamental unalienable right–no second-class right—it established strict scrutiny, the highest level of judicial analysis, for Second Amendment cases. Equally important was this holding:

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

In other words, anti-liberty/gun schemes are only constitutional if there was a clear historical analogue at the time of the founding.  As one might suspect, some states—Like Maryland—are determined to ignore the Second Amendment and Bruen.

Under current Maryland law,  no one may own, rent, or even touch a firearm without a 16-hour class which includes live fire. There is an 8-hour class required for each permit renewal. Only upon passing the 16-hour course, can one apply for a permit, and the State Police have 30 days to approve or deny applications. So while Maryland is, at least ostensibly, a “shall-issue” state the state puts as many barriers as possible in the path of gun owners, including a seven day waiting period for purchase, and gun registration.

In 2023 a three-judge panel of the Fourth Circuit Court of Appeals took up a challenge to the licensing law and struck it down in consonance with Bruen:

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

On would reasonably think that would have been the end of it. No historical analogue, presumptively unconstitutional. Then the entire Court got into the act (decision available here):

We conclude that the Supreme Court in Bruen foreclosed the plaintiffs’ “temporary deprivation” argument by stating that, despite some delay occasioned by “shall-issue” permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are “law-abiding” persons.

We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to “shall-issue” licensing laws like the handgun qualification statute. So the plaintiffs’ challenge to the HQL statute fails, and we affirm the district court’s award of summary judgment to the state of Maryland.

Continue reading “”

SAF SCORES VICTORY IN CALIFORNIA NON-RESIDENT CARRY CASE

BELLEVUE, WA – The Second Amendment Foundation (SAF) and its partners, in a challenge of California’s ban on non-resident concealed carry, won a victory when a federal judge granted a preliminary injunction in the case.

U.S. District Court Judge Sherilyn Peace Garnett, a 2022 Joe Biden appointee, granted in part and denied in part the plaintiffs’ motion for preliminary injunction. The state has 21 days to file a response, and within 30 days plaintiffs must “meet and confer” with the state and Los Angeles County Sheriff’s Department “to submit a proposed order entering the preliminary injunction consistent with the specific findings” made by the court order.

SAF is joined by the California Rifle & Pistol Association, Gun Owners of America, Gun Owners Foundation, Gun Owners of California and seven private citizens. The LA County Sheriff’s Office is the main defendant, along with Attorney General Rob Bonta and the La Verne Police Department.

In her decision, Judge Garnett observed, “the State bears the burden of showing whether California’s residency requirements for a CCW license is ‘consistent with the Nation’s historical tradition of firearm regulation.” A few pages later, she notes, “the State has not carried its burden at this stage to show that the limitation of CCW licenses to California residents is part of a historical tradition of this Nation.”

“Americans do not leave their Second Amendment right to bear arms at the California border,” said SAF founder and Executive Vice President Alan M. Gottlieb. “California is behind the curve in recognizing that the Second Amendment was incorporated to the states via the 14th Amendment since SAF’s Supreme Court victory in the 2010 McDonald ruling.”

“The writing is clearly on the wall,” added SAF Executive Director Adam Kraut, “when Judge Garnett noted the Court already found that we are likely to succeed on the merits of our argument that California’s residency requirement for CCW applications is unconstitutional. We are confident our challenge will continue to prevail.”

FED. COURT DENIES REHEARING IN CASE AGAINST MINN. YOUNG ADULT CARRY BAN

BELLEVUE, WA – The Eighth U.S. Circuit Court of Appeals has denied a petition for a rehearing in a Second Amendment Foundation (SAF) case which found Minnesota’s ban on carry permits for young adults ages 18-20 is unconstitutional.

The case is known as Worth v. Harrington, and it was filed in June 2021. Joining SAF in this case are the Minnesota Gun Owners Caucus, Firearms Policy Coalition and three private citizens, Austin Dye, Axel
Anderson and Kristin Worth, for whom the case is known. They are represented by attorneys Blair W. Nelson of Bemidji, Minn., and David H. Thompson, Peter A. Patterson and William V. Bergstrom at Cooper & Kirk in Washington, D.C.

In its order, the Eighth Circuit also denied a request for an en banc panel hearing. U.S. District Court Judge Katherine Menendez, a 2021 Joe Biden appointee, ruled in March 2023 that Minnesota’s permitting age restriction is unconstitutional. The case was appealed to the Eighth Circuit, which upheld Judge Menendez decision.

“Clearly, Judge Menendez made the right call in the first place,” said SAF Executive Director Adam Kraut. “As we contended all along, the right of the people mentioned in the Second Amendment was not limited to those over a certain age. Certainly young adults fall within the definition of ‘the people’ ever since they’ve been allowed to vote, and generations before that when they were considered part of the militia, and have been accepted into the military.”

“We expected to prevail at trial and again at the appeals court level,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We are gratified by the Eight Circuit’s decision, and now we will see whether Minnesota submits a petition for certiorari to the Supreme Court. For the time being, we have notched another victory in our ongoing effort to win firearms freedom one lawsuit at a time.”

SAF PETITIONS SUPREME COURT FOR CERTIORARI IN MARYLAND RIFLE BAN

BELLEVUE, WA – The Second Amendment Foundation (SAF) has filed a petition for certiorari to the U.S. Supreme Court in its continuing challenge of a ban on modern semiautomatic rifles in the state of Maryland, arguing that high court review is necessary to ensure the Second Amendment is “not truncated into a limited right.”

SAF is joined by the Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy
Coalition, and a private citizen, David Snope. They are represented by attorneys David H. Thompson, Peter A. Patterson, Nicole J. Moss and John D. Ohlendorf at Cooper & Kirk in Washington, D.C.; Raymond M. DiGuiseppe at DiGuiseppe Law Firm in Southport, N.C. The case is known as Bianchi v. Frosh.

The petition was filed after the Fourth U.S. Circuit Court of Appeals ruled that modern semiautomatic
rifles — commonly misidentified as “assault weapons” — are not protected by the Second Amendment because they are “too similar” to a fully-automatic military rifle known as the M16. SAF and its partners contend this reasoning “is becoming a commonplace misapplication” of Supreme Court precedents established by the 2008 Heller ruling, 2010 McDonald decision and 2022 Bruen ruling.

“The Fourth Circuit, as well as other federal courts, are attempting to flip the Supreme Court’s Heller ruling on its head,” said SAF founder and Executive Vice President Alan M. Gottlieb. “They are essentially arguing the arms protected by the Second Amendment are limited only to certain state-approved firearms, which would make it no right at all, but a government-regulated privilege. This is the third time we have petitioned the high court in this case.”

“Certiorari is required in this case,” said SAF Executive Director Adam Kraut, “to correct an increasingly
widespread misunderstanding of the Supreme Court precedent, and the Second Amendment, itself. The specific type of firearm in question is commonly owned across the country, placing it well within the scope of the Second Amendment.”

ATF Requested Stay Denied in Force Reset Trigger Case

Federal District Court Judge Reed O’Connor for the Northern District of Texas denied the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) request for a stay on his ruling that blocked the ATF from taking enforcement actions over force reset triggers (FRT).

Earlier, Judge Reed O’Connor ruled that the ATF exceeded its authority when it determined that FRTs were machine guns in the National Association for Gun Rights v. Garland. FRTs use the bolt carrier group (BCG) of an AR-15-style firearm to reset the trigger of the gun. This reset allows the shooter to increase the rate of fire of a firearm. The ATF claimed that since the rate of fire approaches that of a machine gun, it made the device a machine gun conversion device. Under federal law, any device that converts a semi-automatic firearm to a machine gun is itself a machine gun.

Machine guns are defined under the National Firearms Act of 1934 (NFA). The actual law doesn’t reference a fire rate when determining a machine gun. According to the law, a machine gun fires multiple rounds with a single function of the trigger. An FRT doesn’t work that way. A firearm equipped with an FRT expels one round per trigger function. The ATF made the same argument about bump stocks in the Cargill case, but the Supreme Court ruled against the government and stated that bump stocks were not machine guns.

The statute reads: “For the purposes of the National Firearms Act the term Machinegun means: Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger.”

The plaintiffs claim that since an FRT requires that the user pull the trigger between each round, it could not be considered a machine gun. In the past, the ATF tried to use Chevron deference to change the meaning of a law, but because of the recent Supreme Court opinion in the Loper Bright Enterprises case, Chevron deference is dead. Chevron deference says when a law is unclear or ambiguous, the agency of authority has the final say as to the law’s meaning. This decision stripped the ATF of using Chevron deference in this case, even though it probably would not have been successful.

The ATF tried to use Chevron deference in the Cargill case, but SCOTUS rejected that tactic, stating that the definition of a machine gun is not unclear or ambiguous. Chances are high that the court would come to the same conclusion in this case. The ATF claimed that not issuing a stay would cause irreparable harm to public safety. The judge rejected the argument, saying that the only people charged with having an FRT were also charged with other crimes, so possessing an FRT was only an “add-on” crime. He also stated he did not believe that the defense was likely to succeed on the merits of the case.

The judge extended the time frame the ATF has to return the approximately 11,884 Rare Breed Triggers FRT-15s and Wide Open Triggers (WOT) it had confiscated from owners. Initially, Judge O’Connor gave the ATF 30 days to return all the triggers it confiscated from gun owners. The ATF went door to door to seize the triggers from owners but stated it could not return them in 30 days. The judge increased the time of the deadline by five months. The ATF now has six months to return all the triggers to their owners.

“For the foregoing reasons, the Court DENIES Defendants’ Motion to Stay Judgment Pending Appeal (ECF No. 104),” the order reads. “The Court grants Defendants an additional SIX (6) MONTHS to comply with the affirmative obligation, which SHALL be completed by February 22, 2025. This extension does NOT apply to the Individual Plaintiffs or members of the Organizational Plaintiffs who specifically request the return of their FRT devices and provide sufficient documentation to the ATF. ATF shall return those as soon as is practicable following the specific request.”

The ATF is appealing the judge’s decision to the Fifth Circuit Court of Appeals, although since this is the same court that ruled against the ATF in Cargill, it seems like a long shot that they will side with the ATF. The arguments in both cases are almost identical.

NRA, SAF File Brief In Case Concerning Carry Across State Lines

Massachusetts restrictive gun laws continue to come under well-deserved fire because of their failure to respect the Second Amendment.

We reported over the past week how gun owners have started an initiative petition to put a repeal of the new sweeping gun law on the statewide ballot and about the National Shooting Sports Foundation (NSSF) donating $100,000 to the Gun Owners’ Action League (GOAL) to help fund that group’s lawsuit challenging the constitutionality of the law. Now two gun-rights groups have filed an amicus brief in another Massachusetts case challenging the state’s permit law that restricts lawful gun owners from carrying a firearm in the state.

The case involves New Hampshire resident Dean F. Donnell, Jr., who was stopped by police in Massachusetts and charged for carrying a firearm without a license. In the case named Commonwealth of Massachusetts v. Donnell, the National Rifle Association (NRA) and Second Amendment Foundation (SAF) filed their 38-page brief explaining their interest as that of their members’ ability to travel with firearms legally across state lines, to use them for lawful purposes.

“There is no historical tradition that justifies the non-resident licensing scheme now in place in the Commonwealth of Massachusetts,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Looking back, a government license has not been required to exercise the right to carry arms. Such licenses came into existence only in the late 19th Century, and they applied only to the concealed carry of firearms. Open carry was unrestricted.”

In the brief, NRA and SAF argue that the law doesn’t meet the second Bruen standard of proving a historic precedent exists for such a restriction.

“When the Second Amendment’s plain text covers an individual’s conduct, the government must justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation,” the brief states. “Because the Supreme Court has already held that the Second Amendment’s plain text protects carrying handguns publicly for self-defense, the Commonwealth bears the burden of justifying its regulation with historical tradition. It has not and cannot do so.”

The brief further argues that no historical tradition exists that justifies the Commonwealth’s nonresident licensing scheme.

“Historically, nonresidents traveling in a state were treated no worse than residents with regard to firearm carry,” the brief states. “If they were treated differently under the law, it was generally to exempt travelers from carry restrictions—not to subject them to more onerous burdens than residents. Moreover, a government license was not historically required to exercise the right to carry arms; carry licenses that applied to free citizens were not enacted until the late-19th-century and applied only to concealed carry, leaving open carry unrestricted.”

Adam Kraut, SAF executive director and one of the attorneys in the case, said the act of just getting  permit puts a huge burden on non-resident gun owners.

“New nonresident license applications require an in-person appointment in Massachusetts, necessitating an extra (unarmed) trip to the Commonwealth—which, especially for residents of distant states, becomes a barrier to entry that may be financially untenable,” Kraut said.

The NRA and SAF conclude in the brief that since the law violates the Second Amendment, the district court’s order of dismissal should be confirmed.

BLUF:
While it is true that the Court has shown a willingness to take an increased number of gun-related cases in short succession of late, it is also noticeably taking fewer cases overall each term. As more criminal justice system controversies arise, the justices may have little room on their plates for additional Second Amendment work.

It’s not obvious which factors will weigh heavier on the minds of the Justices. It almost never is when it comes to reading the tea leaves on potential Supreme Court cert grants. What is for certain is that gun-rights advocates currently have their best vehicle to date for getting the Court to weigh in on an assault weapon ban. That is by no means guaranteed to be enough, though.

Analysis: Will This Be the Year SCOTUS Takes an ‘Assault Weapons’ Ban Case?

In a recent ruling upholding Maryland’s ban on so-called assault weapons, a federal appeals court gave gun-rights advocates their best opportunity yet to entice the Supreme Court to strike down those bans nationwide. Whether the Justices are prepared to oblige them is another matter entirely.

In a divided opinion last week, the en banc Fourth Circuit Court of Appeals delivered its long-awaited judgment of Maryland’s ban on AR-15s and other semi-automatic weapons. By a ten-to-five margin, the court’s majority upheld the ban.

“The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense,” Judge Harvie Wilkinson wrote in Bianchi v. Brown.

Rather than greet the preservation of one of the movement’s longest-standing targets with dejection, some gun-rights advocates celebrated the outcome. Pro-gun attorney and legal commentator Mark Smith called the ruling “100% expected” and “excellent news for [the Second Amendment]” in a social media post.

“It should be a clear glide path to SCOTUS for them to hear an ‘assault weapon’ ban case next term (2024-25),” he reasoned.

Indeed, such optimism is not entirely unwarranted. Continue reading “”