Category: Courts
Illinois Supreme Court justices refuse recusal in gun ban challenge despite funding from defendants
Gov. J.B. Pritzker, a defendant in the case, gave each of the 2 justices $1 million for their election campaigns.
The Illinois Supreme Court has denied a motion to disqualify two justices from hearing a challenge to the state’s new gun ban over perceived conflicts of interest. The two justices also declined to recuse themselves.
Before Elizabeth Rochford and Mary O’Brien were elected to the Illinois Supreme Court in November 2022, Gov. J.B. Pritzker gave each of their campaign funds half a million dollars from both his campaign account and a revocable trust, totaling $1 million to each. The two justices also received six-figure donations out of a campaign fund controlled by Illinois House Speaker Emanual “Chris” Welch,” D-Hillside.
Both Pritzker and Welch are top defendants in a Macon County challenge of Illinois’ gun and magazine ban brought by state Rep. Dan Caulkins, R-Decatur. The county judge there issued a final judgment that the law is unconstitutional. The state appealed the case directly to the Illinois Supreme Court after a separate case was found by the Fifth Circuit Court of Appeals to have a likelihood of success on the basis the law violates equal protections.
Late last month, Caulkins’ attorney filed a motion for the two justices to recuse themselves, or for the Illinois Supreme Court to disqualify them from hearing the challenge. Attorney Jerry Stocks argued “unreasonably large campaign contributions” from Pritzker and Welch “undermine public confidence” in the judiciary.
Asked in early March if the justices should recuse themselves because of the donations, Pritzker said that’s “ridiculous.”
Why Post-Bruen Gun-Carry Restrictions Might Backfire
Formerly may-issue states continue to thumb their noses at the Supreme Court by passing some of the country’s most restrictive concealed carry laws. In doing so, they run the risk of undermining licensing schemes altogether.
Last Monday, Maryland became the third state impacted by the Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen to pass a complete overhaul of its concealed carry laws. In a pair of bills, the state assembly greatly increased the application fees for new “wear and carry” permits, expanded its training requirements, and added new “sensitive places” throughout the state where licensed carry would be a crime. The off-limits areas include almost all publicly-accessible private property, like stores or restaurants.
The bills followed a familiar blueprint already established by states like New York and New Jersey, who were the first two states to rebuke the Court with onerous new laws. Fellow affected states, Hawaii and California, appear poised to do the same.
But those states are tempting judicial fate with their replacement laws, as evidenced by the parameters laid out by Justice Thomas in his Bruen opinion. The early track record of legal challenges to New York and New Jersey’s carry laws, where there have thus far been at least five injunctions between the two, can also attest to that fact. But even aside from the constitutional issues, on a more practical level, establishing a political norm of using licensing regimes to make exercising gun rights as difficult as possible creates new skepticism over the very idea of licensing laws.
The Supreme Court went to great lengths in its Bruen opinion to make clear that it was not yet prepared to call into question the legitimacy of standard “shall-issue” licensing laws.
“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit]’,” Justice Thomas wrote in his opinion. “Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”
This carve-out for “shall-issue” regimes was likely the result of a compromise done to mitigate political backlash and shore up support among justices. It remains unclear how “shall issue” permitting laws really fare when closely examined under the text and historical tradition test articulated later in the ruling.
Nevertheless, the American people currently are broadly in favor of that compromise. A November 2022 poll from Marquette University’s law school found that 64 percent of U.S. adults favor the New York State Rifle and Pistol Association v. Bruen ruling. Similarly, a separate Marquette poll found that 62 percent favor allowing the concealed carry of handguns with a permit or license required. Conversely, permitless carry laws routinely poll poorly despite their continued success in red states.
But that equilibrium, in which Americans broadly favor both concealed carry rights and licensing laws, could ultimately become upended if more and more states continue to make lawful carry all but impossible. If push comes to shove and one has to go, it’s more than likely that the American people (and the Supreme Court, which has tended to act only after public opinion on guns has shifted) will choose licensing laws.
The recent experience in North Carolina is a perfect example of this. For years, gun-rights advocates favored repealing the state’s permit-to-purchase law for handguns, but to no avail. Meanwhile, at least nationally, the policy continued to poll favorably among the public. However, following the COVID pandemic and a series of scandals involving local sheriffs delaying permit applications, enough political momentum was finally there to get the repeal bill through the legislature. Two years later, with improved majorities, Republican lawmakers were able to get the repeal into law after overriding a veto.
Legal rulings striking down many of these likely unconstitutional Bruen replacement laws may arrive before sentiment shifts enough to make a difference. But litigation often takes many years, and the Supreme Court has thus far shown an unwillingness to intervene in New York’s law despite its restrictions being the first enacted and arguably the most burdensome. Therefore, relief from the courts might not be in the offing for some time.
As permitless carry approaches a political wall in the near future, continued efforts by gun-control advocates to undermine workable permitting schemes elsewhere across the country risks shifting the Overton window toward more permissive gun-carry systems, whether among the general public or the courts.
Since gun-control advocates very much don’t want to see that happen, they may be forced in the near future to give up the push for restrictive “shall issue, may carry” licensing schemes.
Federal judge appears skeptical of Illinois “assault weapons”, magazine ban
U.S. District Judge Stephen McGlynn had tough questions for both sides during Wednesday’s hearing on a request to halt enforcement of Illinois’ ban on so-called assault weapons and large capacity magazines, but appeared to be skeptical of the state’s argument that the new law doesn’t infringe on the rights of state residents.
Plaintiffs’ attorney Erin Murphy was first up in challenging the ban imposed by lawmakers in early January, and handled McGlynn’s probing questions well; including this exchange over the limits of the legislature’s authority.
On April 4, the Eighth Circuit issued a published decision in United States v. Sitladeen rejecting a post-Bruen challenge to the federal ban on “alien[s] . . . illegally or unlawfully in the United States” possessing firearms. The decision employed a different “step one” analysis than the Fifth Circuit panel in Rahimi, ultimately focusing on status rather than conduct to determine whether the Second Amendment is implicated. The decision in Sitladeen also relied heavily on pre-Bruen cases, illustrating the continued relevance of decisions applying Heller and using a textual-historical analysis to determine the scope of the Second Amendment.
The plaintiff, a Canadian citizen and fugitive (subject to an outstanding Canadian arrest warrant for murder), was stopped in Minnesota with 67 guns and a number of high-capacity magazines and indicted for possessing firearms as an illegal alien in violation of 18 U.S.C. § 922(g)(5). The district court initially denied Sitladeen’s motion to dismiss under the Second Amendment, relying on the Eighth Circuit’s 2011 one-paragraph per curiam decision in United States v. Flores. Flores held that “the protections of the Second Amendment do not extend to aliens illegally present in this country.” That decision favorably cited the Fifth Circuit’s 2011 opinion in United States v. Portillo-Munoz upholding 922(g)(5):
Whatever else the term means or includes, the phrase “the people” in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.
After Sitladeen appealed to the Eighth Circuit, the Supreme Court decided Bruen.
The appellate panel requested supplemental briefing, in which Sitladeen argued that Bruen required the panel to overrule Flores.
The panel disagreed, holding that Flores’ step-one analysis was consistent with the first step of the Bruen test because the judges there “reached [their] conclusion by considering—consistent with what Bruen now requires—whether the conduct regulated by § 922(g)(5)(A) was protected by the plain text of the Second Amendment.”
The opinion observed that other courts have criticized this approach and argued in favor of “constru[ing] the phrase broadly at the outset of the analysis and then consider[ing] whether history and tradition support the government’s authority to impose the regulation.”
While the panel noted concern that a more probing inquiry into whether the defendant is within “the people” protected by the Second Amendment “might enable some courts to manipulate the Second Amendment’s ‘plain text’ to avoid ever reaching Bruen’s ‘historical tradition’ inquiry,” the judges ultimately read Bruen to essentially confirm the mode of inquiry in Flores.
Therefore, the panel found itself bound by Flores’ determination “that unlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend,” and rejected Sitladeen’s Second Amendment challenge.
America’s Censorship Regime Goes on Trial
Missouri v. Biden will test the government’s ability to suppress speech in the name of fighting ‘misinformation’
Ernest Ramirez, a car-wash technician in a small, south Texas town, led a simple but fulfilling life with his son, Ernesto Junior. Junior was a “wonderful child, full of smiles.” Ramirez had raised his son alone; he’d never known his own father and sought to provide Junior with the paternal love he had missed. A talented baseball player, Junior dreamed of playing professionally. The two lived paycheck to paycheck but were happy because, as Ramirez put it, they had each other.
Then, on April 19, 2021, 16-year-old Junior—who had no previous health problems—received the first dose of the Pfizer COVID-19 vaccine. Five days later, the young athlete collapsed while running. By the time the elder Ramirez arrived at the hospital, having been told he could not ride in the ambulance with his son, Junior was dead.
According to the autopsy report, the cause of Junior’s death was an “enlarged heart.” Upon receiving the news, Ramirez lost all desire to go on living. But after the initial shock subsided, Ramirez decided to travel and speak about Junior’s fate, in hopes that he could help other families avoid similar tragedies.
That plan proved more difficult than Ramirez anticipated. In September 2021, GoFundMe removed an account he had opened to raise money for a trip to the nation’s capital to share his son’s story. “The content of your fundraiser falls under our ‘Prohibited Conduct’ section,” the company’s email explained. Ramirez lost the donations he had thus far received. Two months later, Twitter took down a photograph Ramirez had posted depicting him standing beside Junior’s open casket, along with the caption “My good byes to my Baby Boy” followed by three brokenheart emojis. Even a father’s simple expression of grief was apparently forbidden by the social media platform’s government-supported censorship regime.
Around that time, Ramirez met Brianne Dressen, a 40-year-old woman who had volunteered for the AstraZeneca vaccine trials and suffered a severe adverse reaction diagnosed by the National Institutes of Health (NIH) as “post-vaccine neuropathy.” Her varied and acute symptoms at times required use of a wheelchair and drastically curtailed her ability to participate in her young children’s lives.
For a time after her diagnosis, Dressen fell into a severe depression. However, during the spring of 2021, she discovered online support groups for vaccine-injured individuals and their family members. Connecting to others who understood her plight greatly improved her outlook on life, and she began serving as an administrator of several of the groups.
But in July 2021, less than 24 hours after Dressen participated in a press conference with U.S. Sen. Ron Johnson of Wisconsin, Facebook shut down one support group’s account. Though participants had merely discussed their often-harrowing personal experiences and shared medical treatments that they found helpful, Facebook claimed they were spreading harmful “misinformation” that warranted the group’s removal.
The cascade of shutdowns of support groups and accounts belonging to the vaccine injured on Facebook and other social media platforms continues to this day. Ramirez, Dressen, and others learned that when their accounts weren’t suspended or removed, they were shadow-banned—meaning that the platforms’ algorithms buried their posts so that they were rarely, if ever, viewable, even to like-minded individuals facing similar health problems. In Dressen’s words: “The constant threat of having our groups shut down and our connections pulled apart left me and many other members and leaders frozen, unable to communicate and connect with those who needed our help the most. We spent more time managing the chaos of the censorship algorithms that continued to evolve, than we did actually helping people through the trauma of their injuries.”
The obstacles encountered by Ramirez, Dressen, and thousands of other individuals with similar experiences and opinions were in no way coincidental or accidental. Nor were they the result of a series of errors in judgment made by low-level employees of social media platforms. Rather, they were the products of concerted efforts at the highest levels of the American government to ensure that individuals with opposing viewpoints could not be heard, contrary to the guarantees made to every American citizen in the Bill of Rights. One purpose of these unconstitutional actions to violate the rights of American citizens was political gain.
As COVID-19 inoculations became widely available to the American public, the Biden White House came to view vaccine hesitancy as a significant political problem. Beginning in spring 2021, the administration explicitly and publicly blamed social media platforms for vaccine refusal: By failing to censor “misinformation” about the vaccines, the president infamously alleged, tech companies were effectively “killing people.” The president’s incendiary accusation was accompanied by threats of regulatory or other legal action (should the companies refuse to comply) from various high-ranking members of the administration, including former White House Press Secretary Jennifer Psaki, Surgeon General Vivek Murthy, and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas. Psaki boasted that government officials were in regular touch with social media platforms, telling them what and in some cases even whom to censor.
BLUF
How the Fifth Circuit and eventually the Supreme Court will rule remains to be seen, but what is clear now is the abortion-loving left is desperate to keep the truth about abortion from the public and is furious that Kacsmaryk dared to expose the reality: Abortion kills unborn humans.
Judge’s Abortion Pill Opinion Tells The Truth About ‘Unborn Humans,’ And The Left Can’t Stand It
In his 67-page straight-talking opinion, Judge Matthew Kacsmaryk stuck to the facts — something Americans desperately need to hear after decades of euphemistic discussions about abortion.
“Unborn humans.” “Eugenics.” “Head, hands, and legs, with defined fingers and toes.” “Shame, regret, anxiety, depression, drug abuse, and suicidal thoughts.”
Federal Judge Matthew Kacsmaryk’s Friday decision freezing the FDA’s approval of the abortion-pill combination, mifepristone and misoprostol, included these phrases and more. And while the left is already attacking Kacsmaryk’s 67-page straight-talking opinion in Alliance for Hippocratic Medicine v. FDA by framing it as filled with anti-abortion rhetoric, the Trump appointee stuck to the facts — something Americans desperately need to hear after decades of euphemistic discussions about abortion.
After a brief introduction in which Kacsmaryk highlighted the FDA’s two decades of stonewalling that delayed a legal challenge to the 2000 approval of the abortion drugs, the court opened with the basic facts. The plaintiffs — doctors and medical associations that provide health care to pregnant and post-abortive women and girls — sued the FDA, challenging several administrative actions related to the approval of the chemical abortion drugs.
Worth v Harrington decision.
NEW: Granata v. Campbell (1st Circuit): First Circuit vacates district court opinion upholding Massachusetts' handgun roster and remands the case to be reheard in light of Bruen. pic.twitter.com/asRxltAxK2
— Rob Romano (@2Aupdates) April 7, 2023
This is about using illicit drugs vis-a-vis possessing guns.
LEGAL ALERT: A federal judge ruled that 922(g)(3) and (d)(3) are unconstitutional, saying the former is like “a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends.” The government will likely appeal. https://t.co/jDR7efW1Os pic.twitter.com/oHntN2mDnZ
— FPC Action Foundation (@FPCAction) April 7, 2023
Gun owners suing the NYPD say the agency is making it ‘impossible’ to qualify for a handgun
A group of gun owners in New York and New Jersey is suing the NYPD division that reviews applications for firearm permits and licenses, arguing that the NYPD’s application requirements are “impossible to meet.”
The class-action lawsuit, filed in federal court last month, argues that a lengthy backlog in the licensing division “paralyzes” people who want to legally exercise their Second Amendment rights. The gun owners want the courts to appoint a federal monitor to oversee the gun licensing team.
“They [license division staff] have shown time and again that they will infringe on the rights of gun owners and this court has a duty to stop this infringement,” the suit states.
The NYPD declined to comment on pending litigation.
The plaintiffs include a former prosecutor, a National Rifle Association-certified firearms instructor, a gun store employee and a truck driver. All of them have successfully obtained gun licenses in other states but have struggled to complete the process in New York City.
After the U.S. Supreme Court overturned New York’s strict concealed carry laws last year, ruling that the Second Amendment is not a “second-class” right, many gun owners celebrated what they hoped would be a loosening of the state requirements to own and carry a gun. Instead, the state legislature quickly passed a package of laws that created even more requirements for legal gun ownership, prompting a flood of lawsuits.
Uh Oh…New York Supreme Court Rules the State’s Red Flag Confiscation Law is Unconstitutional
Gosh, this hasn’t been a good week for America’s gun control industry. First Governor Ron DeSantis signed permitless concealed carry into law, tipping the balance in favor of states that don’t require a government-issued permission slip to keep and bear arms. That was traumatizing enough for the forces of civilian disarmament.
Today, however, another blow has landed. New York’s Supreme Court — which for some damned reason is the second highest court in the Empire State — has ruled that the state’s due process-free red flag firearm confiscation law is unconstitutional. Go figure.
The ruling, written by Judge Craig Stephen Brown, makes it clear how an individual’s civil rights are violated under the current law . . .
Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether “the respondent is likely to engage in behavior that would result in serious harm to himself, herself, or others in…section 9.39 of the mental hygiene law.” Under Mental Hygiene Law, a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition “likely to result in serious harm.” Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion.
Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York’s Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms.
In other words, the New York legislature, in its unyielding zeal to disarm as many citizens as possible, didn’t give the slightest thought to the protection of a targeted individual’s civil rights when they wrote their red flag gun confiscation law. The only thing they cared about was grabbing the guns.
As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .
As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .
“Second Amendment rights are no less fundamental than…Fourth Amendment rights (the right to liberty), and must be afforded the same level of due process and equal protection.” Accordingly, this Court joins the Monroe County Supreme Court in holding that, “under CPLR 63-a, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’ before a petitioner files for a [temporary extreme risk protection order] or [extreme risk protection order].
Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in 63-a) deprives a citizen of a fundamental right without due process of law.” This Court declares [New York’s Extreme Risk Protection Law] to be unconstitutional.
You can read the full ruling here.
The New York Supreme Court, then, has concluded exactly what we and every other gun rights supporter have been arguing since the first red flag confiscation order was passed in California. They deprive gun owners of their basic, constitutionally protected civil right to due process, frequently issuing ex parte confiscation orders for which the gun owner wasn’t even present to defend himself.
Again, today’s ruling was issued by New York’s Supreme Court. The highest court in New York is the Court of Appeals. New York Attorney General Letitia James’ minions are no doubt already hard at work drafting their filing for an appeal, so this battle is far from over. Still, it’s a positive step and one that will upset the state’s rabid gun-grabber community, lead by none other than Governor Kathy Hochul, to no end…and who could quibble with that?
Now We Know Why They Wanted to Keep the Trump Indictment Sealed
With the indictment and now arrest of Donald Trump, we’ve officially entered a new and very troubling phase in our country’s history. In this new phase prosecutors use their position to punish political enemies for made-up crimes – and half of the country cheers it, believing that their own personal animus toward someone or even a simple policy disagreement means that person should be locked up. There’s no critical thought involved, no sober consideration of the rule of law and evaluation of whether the facts even remotely meet the elements of a crime; these prosecutors act based on the shrieking of the masses and their own hunger for power.
During the few weeks since Trump announced that he was going to be indicted, official news has been almost impossible to come by. What the public knew in the lead-up was mostly as a result of leaks from DA Bragg’s office and speculation from political insiders and pundits. When Trump surrendered to authorities, was processed, and then escorted into the courtroom, we still didn’t know exactly what crime(s) our former president was going to be charged with. It was only once we were 20 minutes into the arraignment proceedings that we learned that he has been charged with 34 counts of falsifying business records. When the indictment was published, it was immediately clear that they kept it under wraps because it’s so flimsy and utterly laughable. As our Nick Arama predicted, Bragg’s engaging in “charge stacking,” a practice that is frowned-upon as an abusive tactic, the “second charge” that would possibly make the offense a felony is unclear, and the actions Bragg’s saying constitute the falsifying took place so long ago that the statute of limitations has expired.
And during the arraignment itself, the American public was similarly in the dark. While the judge allowed five pool still photographers into the courtroom to take pictures before the arraignment, he denied a request from news organizations to broadcast the arraignment. Sure, we’ll potentially have access to a transcript, but a transcript does not in any way tell the entire story of what happened in the courtroom. It doesn’t show facial expressions, vocal intonation, or body language, and as the saying goes, a picture tells a thousand words.
Although Trump’s attorneys argued against the news organizations’ request, saying it could pose a security risk and disrupt the proceedings, for the American public to be unable to fully observe what happens in that courtroom sets a dangerous precedent and doesn’t promote confidence in the principles of equal protection or due process – especially with the lack of transparency regarding the indictment itself. One reporter who was in the courtroom said that Trump’s attorneys laughed quietly when they were looking at the paperwork, and given its contents, that’s understandable. The American people need to see things like that, and hopefully they will be able to watch broadcasts of the preliminary hearing when Trump’s attorneys have the opportunity to skewer Bragg’s argument.
But if District Attorneys like Alvin Bragg and his fellow Soros-funded “justice reformers” George Gascon, Kim Gardner, Larry Krasner, and Kim Foxx have their way, political opponents will be prosecuted behind closed doors, with no ability for the public to truly see what’s happening. And we know that many of their accomplices in the media will absolutely look the other way, because they believe that people they disagree with shouldn’t have the rights the Constitution guarantees them
The Footnote to End All Gun Control
The United States of America is founded on the presumption of innocence. After the Supreme Court’s landmark New York State Pistol Rifle Association v. Bruen Supreme Court decision, there is now a presumption that gun laws are unconstitutional unless the government can prove there was a similar law at the time of the ratification of the Second Amendment.
According to the Bruen decision, the interest balancing test does not apply to Second Amendment cases. The courts can only rely on the original text, history, and tradition of the Second Amendment.
This decision put most anti-gun politicians and advocates in a precarious position. Almost no gun control existed at the time of the Second Amendment’s ratification. With the combination of little to no supporting historical evidence and without leniency from the previous interest balancing test, gun control advocates will have a much harder time of successfully passing legislation that will defeat SCOTUS’s new test. The anti-gun side had to find something in history that would save gun control laws.
Anti-gun state and gun control advocates usually point to the Sir John Knight’s Case that challenged the Statute of Northampton. According to the anti-gun side, the law forbids carrying a firearm in public. Still, most legal scholars agree that it banned the carrying of a gun in public only if the intent is to terrify the people. Without many other examples of gun control laws, the anti-gun side must base their arguments on this case.
Unfortunately for the gun control side, the Supreme Court addressed the Sir John Knight’s Case and others like it.
According to Footnote 11 of the Bruen decision, whenever multiple interpretations can be taken from a case, the Supreme Court will favor the interpretation that favors the Second Amendment. This demand puts the burden on the state to prove their analog is consistent with the original text, history, and tradition of the Second Amendment.
Footnote 11 reads:
“The dissent discounts Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, because it only “arguably” supports the view that an evil-intent requirement attached to the Statute of Northampton by the late 1600s and early 1700s. See post, at 37.But again, because the Second Amendment’s bare text covers petitioners’ public carry, the respondents here shoulder the burden of demonstrating that New York’s proper-cause requirement is consistent with the Second Amendment’s text and historical scope. See supra, at 15.
To the extent there are multiple plausible interpretations of Sir John Knight’s Case, we will favor the one that is more consistent with the Second Amendment’s command.”
Because SCOTUS referenced the case in a footnote doesn’t mean the state will not try to use Sir John Knight’s Case. We have seen states argue that they can use laws from the ratification date of the Fourteenth Amendment to defend their anti-gun statutes. The Fourteenth Amendment was ratified shortly after the Civil War ended when states passed laws to prevent formerly enslaved people from getting firearms. Some courts might even accept these arguments, but it is delaying the inevitable.
SCOTUS laid down a straightforward test for gun laws. If a law is inconsistent with the plain text, history, and tradition of the Second Amendment, it must be thrown out. This new test puts the burden on the states to prove that their law is compatible with the Second Amendment.
Analysis: A Legal Template for Upholding AR-15 Bans is Emerging
A federal judge upheld Delaware’s “assault weapons” ban this week using reasoning likely to resonate with other courts inclined to reach the same outcome.
On Monday, Federal District Judge Richard G. Andrews, an Obama appointee, found the state’s ban on AR-15s, AK-47s, and similar firearms–along with its ban on magazines that hold more than 17 rounds–is constitutional. He did so despite finding the guns were “in common” use for lawful purposes.
“[I] conclude that the prohibited LCMs, like the prohibited assault long guns, are in common use for self-defense and therefore ‘presumptively protect[ed]’ by the Second Amendment,” Judge Andrews ruled in Delaware State Sportsmen’s Association v. Delaware Department of Safety and Homeland Security.
That probably left a lot of people doing a double-take. But Judge Andrews came to his conclusion after arguing AR-15s and the like weren’t common during the founding era and represented a technological advancement that is responsible for a uniquely modern problem: mass shootings. Because of this, he argued Bruen allowed him to look for historical analogues that show a history of regulation instituted for the same purpose and using the same means.
He ruled there was such a tradition.
“I find that the LCM and assault long gun prohibitions of HB 450 and SS 1 for SB 6 are consistent with the Nation’s historical tradition of firearm regulation,” he wrote. “Plaintiffs have therefore failed to demonstrate a likelihood of success on the merits of their Second Amendment claim.”
He pointed to the proliferation of late 19th Century Bowie knife and Billy club bans, plus later machinegun bans, as evidence governments have previously banned the sale of weapons they believe are associated with especially dangerous criminal behavior. He further argued banning a subset of weapons was a relatively minor burden and one that was similar to his historical examples.
“[B]oth sets of regulations impose a ‘comparable burden,” he wrote. “Indeed, the burden that the challenged regulations impose is slight.”
Judge Andrews isn’t the only, or even the first, one to use this concept to save a ban. District Judge Karin Immergut, a Trump appointee, denied an attempt to block Oregon’s magazine limit under the same basic framework. While she went further and said she didn’t need to do a Bruen analysis at all because ammunition magazines aren’t protected by the plain text of the Second Amendment, she did the analysis anyway, and it came out along the same lines as Judge Andrews’ argument.
It’s likely other courts will adopt this framework as well.
Other courts, namely the Ninth and Fourth Circuits, have previously shown they don’t believe AR-15s or similar guns should be sold to civilians. The old two-step balancing test of the pre-Bruen era was explicitly about whether the argued public safety impact of banning the guns was enough to overcome the infringement on the right of Americans to have them. Any court that upheld an “assault weapons” ban before 2022 essentially said “yes.”
So, given the opportunity to review the law again, it’s fair to think they may want to find a way to reach the same conclusion. That’s especially true if the path to that answer appears to at least plausibly fit within the Supreme Court’s new test.
Of course, Judge Andrews’ reasoning has some serious flaws. For one, it seems to be making the same mistake in the eyes of the Court that the two-step test did: going one step too far.
Reading Heller, McDonald, and Bruen provides the impression that any class of firearms considered to be in “common use” for lawful purposes, such as self-defense, is inherently protected by the Second Amendment and can’t be banned by the government.
“The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense,” The Court wrote in Heller.
“Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right[…].”
That Judge Andrews finds AR-15s and the other banned guns in common use for the purpose of self-defense and then proceeds on to further analysis is unlikely to be what The Court had in mind. It seems relatively clear SCOTUS doesn’t believe it is possible to ban any gun that is in common use for lawful purposes. So, the detour into comparing modern “assault weapons” bans to 19th Century Bowie knife or Billy club bans will likely be unpersuasive should it ever make its way up to The High Court.
It also suffers from the lack of a limiting principle. Judge Andrews argues that the self-loading, semi-automatic technology found in AR-15s and the other banned guns didn’t become popular until after the Civil War. And their adoption led to the rise of mass shootings (never mind that semi-automatics were becoming common about 100 years before the onset of modern mass shootings).
But there’s nothing in Judge Andrews’ line of reasoning that wouldn’t prevent the same argument from being applied to all semi-automatic firearms or an ammunition magazine of essentially any size. That includes semi-automatic handguns, which the Supreme Court has already ruled can’t be banned.
Still, even if the prospects for success on appeal to the Supreme Court are dim for this argument upholding AR bans, it will likely proliferate in some of the most important circuits because it at least attempts to follow the Bruen steps while still maintaining the bans. And, even if the weaknesses are as serious as they appear, pointing them out will only matter if the Supreme Court actually takes up a case involving them. After all, the two-step test The Court excoriated in Bruen was the defacto review standard on gun cases for a decade because of SCOTUS inaction.
Whatever ends up happening, expect to see Judge Andrews’ legal reasoning pop up anytime a gun or magazine ban is upheld.
Yes, that's one of the main problems I see with it as well.
— Stephen Gutowski (@StephenGutowski) April 2, 2023
The Bruen decision, authored by adamant pro-2nd amendment rights Justice Thomas keeps rolling right over the gun grabbers’s fantasies
Federal judge strikes down Minnesota law banning 18-20-year-olds from obtaining gun permits
A judge in Minnesota ruled that a state law prohibiting adults under 21 from carrying firearms in public was unconstitutional
A federal judge on Friday struck down a Minnesota law that prohibits adults age 18-20 from obtaining permits to carry handguns in public.
Assisted by gun-rights advocacy groups, three individuals who were under 21 challenged a 2003 state law that enacted an age requirement to apply for a permit to carry a pistol. They argued that the law unconstitutionally prohibited young adults from exercising their Second Amendment right to bear arms.
In a 50-page ruling, U.S. District Court Judge Kathleen Menendez agreed. Relying on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen, the judge concluded that Minnesota’s law was unconstitutional and blocked the state from enforcing it.
“Based on a careful review of the record, the court finds that defendants have failed to identify analogous regulations that show a historical tradition in America of depriving 18- to 20-year-olds the right to publicly carry a handgun for self-defense,” Menendez wrote. “As a result, the age requirement prohibiting persons between the ages of 18 and 20 from obtaining such a permit to carry violates the Second Amendment.”
The judge indicated that her ruling was supported by the Supreme Court, which established a new legal test in Bruen to evaluate laws regulating firearm possession. The Supreme Court majority held that the government must demonstrate that a firearm regulation “is consistent with the Nation’s historical tradition of firearm regulation” for it to pass constitutional muster.
Alec Baldwin Codefendant Gets 6 Months Probation on ‘Rust’ Weapons Charge
SANTA FE, N.M. (AP) — A codefendant in the case against actor Alec Baldwin in the fatal 2021 shooting of a cinematographer on a movie set in New Mexico was convicted Friday of unsafe handling of a firearm and sentenced to six months of probation.
Safety coordinator and assistant director David Halls also must pay a $500 fine and complete a gun-safety course after agreeing to plead guilty to the charge related to the death of Halyna Hutchins on the set of the Western movie “Rust.”
Halls appeared briefly by video to waive his right to challenge the negligence charge, as state District Judge Mary Marlowe Sommer approved terms of a plea agreement with prosecutors.
Defense attorney Lisa Torraco urged the court to not impose a prison sentence — the maximum possible penalty was 6 months behind bars — noting that Halls was “extremely traumatized and “rattled” with guilt.
BREAKING: Renna v. Bonta (S.D. CA): Judge issues preliminary injunction against California handgun roster's chamber load indicator, magazine disconnect, microstamping, and 3-for-1 removal provisions. This is the 2nd injunction against the roster in 2wks. https://t.co/iprbXy0m6B pic.twitter.com/OKmlXZ0xcI
— Rob Romano (@2Aupdates) March 31, 2023
Yeah, there’s this thing called ‘due process’…….
BLUF
It nevertheless seems clear that the current policy sweeps too broadly by disarming people, potentially including victims of domestic abuse, even when they have no history of violence or threats. That reality certainly seems relevant in assessing the government’s claim that people subject to restraining orders are ipso facto in the same category as “dangerous” individuals who historically have been deemed unfit to own guns.
The Ruling Upholding the Gun Rights of People Subject to Restraining Orders Is Not As Crazy As You Might Think
The 5th Circuit noted that such orders can be issued without any credible evidence of a threat to others.
The Biden administration is asking the Supreme Court to reverse a recent decision in which an appeals court concluded that the federal ban on gun possession by people subject to domestic-violence restraining orders violates the Second Amendment. In a petition filed this month, Solicitor General Elizabeth Prelogar portrays that law as a commonsensical precaution that is “consistent with the Nation’s historical tradition of firearm regulation”—the constitutional test that the Court established last year in New York State Rifle & Pistol Association v. Bruen. But there are reasons to doubt that the “historical analogues” cited by the government are close enough and ample cause to worry about the threat that the policy it is defending poses to civil liberties.
Under 18 USC 922(g)(8), which Congress enacted in 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess firearms when he is “subject to a court order” that restrains him from “harassing, stalking, or threatening an intimate partner” or “engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury.” The provision requires that the order be issued after a hearing of which the respondent received notice. It also says the order must either include a finding that the respondent “represents a credible threat” to the intimate partner’s “physical safety” or explicitly prohibit “the use, attempted use, or threatened use of physical force” that “would reasonably be expected to cause bodily injury.”
The man at the center of this case, a Texas drug dealer named Zackey Rahimi, was convicted of violating Section 922(g)(8) in circumstances that suggest he is exactly the sort of person who should not be trusted with firearms. But his conduct allegedly included a string of violent crimes that would themselves disqualify him from owning guns. The question raised by this case is not whether someone like Rahimi should be allowed to own guns. It is whether the government violates the Second Amendment when it deprives people of the right to armed self-defense based on nothing more than a restraining order that may have been issued without any credible evidence that the respondent poses a danger to others.
When it overturned Rahimi’s conviction in February, the U.S. Court of Appeals for the 5th Circuit noted that he is “hardly a model citizen,” which is putting it mildly. In December 2019, Prelogar notes, “Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault.”
Poor NY Times Karen. It’s going to be much farther than she can imagine.
I’m not going to fisk the inaccuracies and outright lies in the article, as they’ll stand out by simple reading.
We’re About to Find Out How Far the Supreme Court Will Go to Arm America
How much further will the Supreme Court go to assist in the arming of America? That has been the question since last June, when the court ruled that New York’s century-old gun licensing law violated the Second Amendment. Sooner than expected, we are likely to find out the answer.
On March 17, the Biden administration asked the justices to overturn an appeals court decision that can charitably be described as nuts, and accurately as pernicious. The decision by a three-judge panel of the United States Court of Appeals for the Fifth Circuit invalidated a federal law that for almost 30 years has prohibited gun ownership by people who are subject to restraining orders for domestic violence.
The Fifth Circuit upheld the identical law less than three years ago. But that was before President Donald Trump put a Mississippi state court judge named Cory Wilson on the appeals court. (As a candidate for political office in 2015, Wilson said in a National Rifle Association questionnaire that he opposed both background checks on private gun sales and state licensing requirements for potential gun owners.)
Judge Wilson wrote in a decision handed down in March that the appeals court was forced to repudiate its own precedent by the logic of the Supreme Court’s decision in the New York licensing case. He was joined by another Trump judge, James Ho, and by Edith Jones, an appointee of President Ronald Reagan; Judge Jones has long been one of the most aggressive conservatives on the country’s most conservative appeals court.
Now it is up to the justices to say whether that analysis is correct.
Fifteen years after the Supreme Court’s Heller decision interpreted the Second Amendment to convey an individual right to own a gun, there is no overstating the significance of the choice the court has been asked to make. Heller was limited in scope: It gave Americans a constitutional right to keep handguns at home for self-defense. The court’s decision last June in New York State Rifle and Pistol Association v. Bruen was on the surface also quite limited, striking down a law that required a showing of special need in order to obtain an unrestricted license to carry a concealed gun outside the home. New York was one of only a half-dozen states with such a requirement, as the court put it in the Bruen decision.