Category: Courts

Fraser v. ATF
Judge strikes down the federal law banning FFL handgun sales to young adults, saying that doing otherwise “would impose limitations on the Second Amendment that do not exist with other constitutional guarantees.”

gov.uscourts.vaed.524643.47.0

Federal judge upholds constitutionality of law against possessing guns without serial numbers
Judge William Martínez agreed that guns lacking serial numbers are not ‘typically possessed by law-abiding citizens for lawful purposes’

Although a major U.S. Supreme Court decision last year made it easier to strike down gun safety regulations as unconstitutional, a federal judge agreed on Monday that a law banning the possession of guns that lack serial numbers does not run afoul of the Second Amendment.

Within months of his indictment for possessing a firearm with an “obliterated” serial number in Denver, Jonathan Avila moved for dismissal of the criminal charge, arguing the law violated his constitutional right to bear arms.

But in a May 8 order, U.S. District Court Senior Judge William J. Martínez disagreed, noting the Supreme Court has interpreted the Second Amendment as protecting the right to own weapons for the lawful purpose of self-defense.

“Reason and the experience of law enforcement counsel is that obliterating a firearm’s serial number serves another purpose: making the identity of a person who possesses a particular firearm more difficult to determine,” Martínez wrote. “This feature makes firearms with obliterated serial numbers useful for criminal activity.”

Consequently, he determined guns lacking serial numbers are not within the Second Amendment’s protection.

Martínez is one of many federal judges who have had to grapple with the fallout from the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The court’s conservative majority voided New York’s licensing regime for the public carry of weapons, but also laid down a new legal framework for analyzing the constitutionality of gun regulations broadly.

The government, when defending the constitutionality of a firearm law, “must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation,” wrote Justice Clarence Thomas for the majority.

He added that if a law addresses a “general societal problem that has persisted since the 18th century,” the lack of a regulation from the 1700s comparable to a modern restriction is “relevant evidence” that current policies are unconstitutional.

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Frustratingly, the same judge who issued the foolish opinion which was overturned by the Supreme Court in McDonald v. Chicago has once again stepped in to enforce unconstitutional gun control. This is not the last laugh, and we are fully invested in ensuring this law is defeated. GOA will continue to fight until lower courts, executives, and lawmakers at all levels fall in line with the Bruen precedent.

Erich Pratt GOA Senior Vice President

It’s a wonder they’re so arrogant they openly publish this. They’re the ‘real’ sedition and insurrectionists

Time to Go After Supreme Court

As the stories of “justices” Roberts, Gorsuch, Alito, and Thomas appear every day in the paper, it appears there is some hesitancy on attacking the legitimacy of the Court.  That needs to end.  It is obvious that the Court will not be working for political rights, human rights, fair elections, or anything else for decades in the future.  It is also obvious that they are just another branch of an oligarchic government.

Some highlights of the Roberts Court.

Citizens United — Yes, people with more money than they know what to do with should be allowed to use their money to influence elections.  It was put forward as a free speech case, and money was equated with speech.  As a constitutional originalist, my copy does not include a mention of money, and money was widely used during the adoption of the constitution.

Shelby — Essentially, the Voting Rights Act was eliminated based on the Court saying it was no longer necessary.  Amendment XV simply says the Congress shall have power to enforce this article by appropriate legislation.  No where does it mention the Court, and why with this explicit direction, does the court substitute its judgment for Congress’s.

Gun Cases -Heller — The Court is moving for unrestricted gun access.  Now guns are described as appropriate means of self defense.  However, my Constitution only describes well regulated militias, and the Court avoids the need or participation in militias as part of gun rights.

Obamacare case — The Supreme Court upheld the constitutionality of the law.  However, they greatly constrained Medicaid expansion, and the case they heard was so zany it should not have been heard.

Gerrymandering — The Court has essentially said gerrymandering is fine, no matter what.  We are now picking legislators and Congressmen based on an election in 2010 which gave Republicans the opportunity to gerrymander for the next ten years, and based on them still being in office based on that gerrymander, they did it again in 2020.

Harding — The Court has shown a willingness to accept the legislative doctrine, which would essentially allow these gerrymandered legislators the opportunity to pick the President.

Dobbs — Just based on the change in the Court based on some finagling by McConnell, and nominations by an impeached President, the Court essentially stripped a basic right from a majority of the population.

Impreachment 1 — The Constitution directs the Chief Justice to preside over impeachments of the President.  Roberts did not do this.  Since the Senate could not pass a resolution allowing the calling of witnessed, there were no witnesses.  Essentially,  defense counsel with the support of Republican senators prevented witnesses from appearing.  Doesn’t presiding mean presiding, not showing up and sitting like a potted plant while members did crossword puzzles and left the room.

For those of us with fond memories of the Warren Court, those days are long gone.  We are not looking at a Court who is working for us!

It is time for members of the Congress and Administration to challenge their legitimacy.  They are not going to do anything for us, and we need to work to undermine that branch and that Court.

1) Cut their money!

2) Challenge their decisions, and if appropriate and useful, ignore them.

3) Investigate the Court and publicize it to the nines.  Why do we learn of their corruption from Pro Publica.  Senate Judiciary should be all over them.

There is no reason to respect the Court or its members.

This is a corollary of: ‘Familiarity breeds contempt’
You becomes so complacent, you no longer pay attention to the details that will keep you out of trouble.
It’s bad habits one has to continually work at to eliminate.

Ex-Rep. Cawthorn fined after guilty plea over gun at airport

CHARLOTTE, N.C. (AP) — Former North Carolina U.S. Rep. Madison Cawthorn pleaded guilty Friday to a misdemeanor after his loaded gun was found last year in his carry-on luggage at Charlotte Douglas International Airport.

Mecklenburg County District Court Judge Cecilia Oseguera ordered a $250 fine but allowed Cawthorn to keep the 9 mm handgun that Transportation Security Administration agents seized at a checkpoint in April 2022, news outlets reported.

Prosecutors had wanted Cawthorn to have to relinquish the gun, but Oseguera said she saw nothing in the charge of possession of a dangerous weapon on city property that required him to give it up.

“I’m very happy and thankful that the judge gave a really clear ruling that sides with the law,” Cawthorn told reporters after the hearing.

Cawthorn, a Republican who served one term representing the 11th Congressional District in the mountains, previously admitted to having the gun at the airport and wrote on social media there was “no excuse” for his mistake.

Cawthorn also was found with an unloaded gun in 2021 while trying to get on a plane at Asheville Regional Airport. Airport police confiscated the gun but allowed him to board.

Cawthorn, from Henderson County, won election to Congress in 2020 at age 25 and became one of former President Donald Trump’s strongest supporters on Capitol Hill. He lost his 2022 GOP primary to Chuck Edwards, who went on to win the general elections.

Cawthorn told reporters Friday that he thinks he’ll return to politics one day but has no definite plans.

“I enjoy the position I’m in now,” said Cawthorn, who now has a home in Florida. “The world really is the oyster for the young.”

Lawsuit challenges California’s 10-day waiting period law for gun purchases

SAN DIEGO (CNS) – Firearms advocates filed a lawsuit in San Diego federal court this week challenging California’s 10-day waiting period for gun purchases.

The lawsuit filed Monday joins a number of others filed in San Diego in recent years challenging the state’s laws governing firearm and ammunition purchases and possession.

It alleges the state’s waiting period law “prevents law-abiding people from taking possession of lawfully acquired firearms for immediate self- defense and other lawful purposes.” The complaint alleges the law is unconstitutional as it prevents law-abiding people from receiving firearms they purchased after they pass background checks confirming they are not prohibited from doing so.

The suit was filed on behalf of several San Diego County residents who are gun owners, as well as firearms advocacy groups such as San Diego County Gun Owners PAC, California Gun Rights Foundation, Firearms Policy Coalition, and the Second Amendment Foundation.

In a statement, Firearms Policy Coalition director of legal operations Bill Sack said, “Arbitrarily delaying access of life-saving and constitutionally protected tools to peaceable people is immoral and unsupported by the text, history and tradition of the second amendment in this country. This law must be struck down.”

A representative from California Attorney General Rob Bonta’s office said Monday that the lawsuit was being reviewed.

Democrats’ scheme to bludgeon the Supreme Court exposed at Senate Judiciary Committee hearing

The Senate Judiciary Committee held a hearing Tuesday on “Supreme Court Ethics Reform.” The title implies that Supreme Court ethics need reform and that Congress can do the reforming.

The hearing failed to make that case.

Everyone agrees on the critical importance of public confidence in the judiciary’s impartiality and integrity, and that that confidence is on the decline. That observation, however, raises the question of what’s causing the decline.

Democrats and their allies among left-wing groups and the media, after all, have relentlessly accused the current Supreme Court of partisanship and bias, even warning certain justices not to make the “wrong” decisions in certain cases.

There was Senate Democratic Leader Chuck Schumer, D-N.Y., on the Supreme Court steps in March 2020, calling out Justices Neil Gorsuch and Brett Kavanaugh and shouting that they had “released the whirlwind” and would “pay the price” if they continue making “awful decisions.”

And there was Sen. Sheldon Whitehouse, D-R.I., and four Democratic colleagues filing a brief in a Second Amendment case that closed this way: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself” before being forced to do so.

Or there was Whitehouse claiming, through the liberal American Constitution Society, that the GOP appointees to the court consistently deliver decisions that “advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party.” Not surprisingly, his methodology is itself deeply ideological, but even if he were right about the pattern, his own analysis would show that the Democratic appointees just as consistently oppose those interests. It’s funny that Whitehouse’s diatribes on this subject are always focused in one direction.

He and other Democrats were just as glaringly one-sided in Tuesday’s hearing.

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‘Assault Weapon’ Bans Look More Legally Vulnerable Than Ever
A preliminary injunction in Illinois may signal the demise of a long-running public policy fraud.
Supporters of "assault weapon" bans insist that the weapons they cover are good for nothing but mass murder.

These two guns fire the same ammunition at the same rate with the same muzzle velocity. But the one on top is an “assault weapon,” and the one on the bottom isn’t. (Illustration: Lex Villena)

Three days after Washington became the 10th state to enact an “assault weapon” ban, a federal judge temporarily blocked enforcement of a similar law in Illinois. That decision, which was published last Friday, may signal the demise of a long-running public policy fraud that falsely depicts an arbitrarily defined category of semi-automatic rifles as good for nothing but mass murder.

“Assault weapon” bans, which typically cover specific models along with features such as adjustable stocks, pistol grips, flash suppressors, and barrel shrouds, have always been logically dubious. And under the constitutional test that the Supreme Court recently established, they look more legally vulnerable than ever.

These laws never made much sense. With or without the features that states such as Washington and Illinois have deemed intolerable, a rifle fires the same ammunition at the same rate with the same muzzle velocity.

Even President Joe Biden, who wants Congress to revive the federal “assault weapon” ban that expired in 2004, has conceded that the law left would-be killers with plenty of alternatives that were “just as deadly.” And contrary to the claim that the rifles targeted by this sort of legislation are the “weapon of choice” in mass shootings, handguns account for more than three-quarters of the firearms used in such crimes and an even larger share of the firearms used in gun homicides generally.

The Supreme Court’s precedents suggest that “assault weapon” bans are unconstitutional as well as illogical. The Court has said the Second Amendment applies to firearms that are commonly used for lawful purposes, and last June it explicitly rejected the sort of “interest-balancing” test that lower courts had previously used to uphold “assault weapon” bans.

Instead of weighing a law’s purported public safety benefits against the burdens it imposes, the justices said, courts should ask whether it is “consistent with this Nation’s tradition of firearm regulation.” In a federal lawsuit they filed immediately after Washington enacted its “assault weapon” ban last week, the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) argue that the state cannot meet that test.

“The only historical tradition that can remove a firearm from the Second Amendment’s protective scope,” the complaint says, is “the tradition of banning dangerous and unusual weapons.” But that category does not include “arms that are in common use” for legal purposes, “as the firearms Washington has banned unquestionably are.”

The SAF and the FPC note that AR-15 style rifles covered by Washington’s law “are among the most popular firearms in the nation, and they are owned by millions of Americans.” They cite survey data indicating that “about 24.6 million Americans have owned AR-15 or similar modern semiautomatic rifles.”

The SAF and the FPC made the same argument in Illinois, and U.S. District Judge Stephen P. McGlynn found it persuasive. In granting a preliminary injunction against that state’s “assault weapon” ban, McGlynn concluded that the law was probably inconsistent with the right to keep and bear arms, adding that Illinois legislators seem to have ignored that likelihood and the Supreme Court decisions underlying it.

In the survey cited by the SAF and the FPC, two-thirds of the respondents who reported owning AR-15-style rifles said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used the rifles for home defense, and 35 percent cited defense outside the home.

Washington Gov. Jay Inslee, a Democrat, nevertheless insists these rifles “have no reason other than mass murder,” because “their only purpose is to kill humans as rapidly as possible in large numbers.” Illinois Senate President Don Harmon (D–Oak Park) likewise maintains that killing innocent people is the “only intent” of the rifles his state banned.

Ascribing intent to inanimate objects reflects the magical thinking of politicians who argue that certain guns are inherently evil. That position is plainly at odds with a reality that courts may no longer be able to ignore.

Is SCOTUS ready to step in on an “assault weapons” ban?

Since the Bruen decision was delivered last June, the Supreme Court has been largely content to let lower courts wrestle with the opinion and what it means for the future of gun control laws like a ban on so-called assault weapons or even the new concealed carry restrictions put in place by the state of New York after its “may issue” regime was struck down by SCOTUS in Bruen. Now the Court is being asked to weigh in on an “assault weapons” ban imposed by the city of Naperville, Illinois, and Second Amendment advocates are hoping that at least four justices are ready and willing to take up the request for an injunction.

The National Association for Gun Rights is hoping the Supreme Court will do what the Seventh Circuit did not; put a halt to Naperville’s gun ban while the case plays out in court. On Monday afternoon, Supreme Court Justice Amy Coney Barrett directed Naperville officials to respond to NAGR’s request no later than noon on May 8th. Coincidentally (or not), that’s the same day that U.S. District Judge Stephen McGlynn has told the plaintiffs in the challenge to the statewide ban on “assault weapons” to reply to Illinois’ request to stay his injunction against the “assault weapons” and “large capacity” magazine ban, which was handed down last week.

The National Association for Gun Rights (NAGR), in conjunction with the National Foundation for Gun Rights (NFGR),says the law conflicts with the high court’s NYSRPA v. Bruen decision last year, which ruled gun laws must align with constitutional text and history.

Well, that’s not gonna happen. The bigger question is whether the Supreme Court will step in now or wait for another case involving a ban on so-called assault weapons to reach its doorstep.

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Not a Second-Class Right – The Second Amendment

On July 25, 2022 the Second Amendment rightfully rejoiced about an historic decision from the Supreme Court of the United States (SCOTUS). In this now famous case, New York State Rifle & Pistol Association Inc. v. Bruen, (now commonly referred to as Bruen) the court dropped the hammer on the bigotry the 2A Community has faced for far too long.

In that ruling, the court reiterated an earlier statement form SCOTUS regarding the Second Amendment in a case referred to as McDonald: “The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780”

In Bruen, the court went even further declaring: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

These were very groundbreaking and profound statements from the highest court in the U.S. It should have meant the immediate end of modern gun control as we know it. Sadly, those of us who have been in the trenches for a long time knew it wouldn’t be. Like many other communities that have faced social bigotry in the past, we knew the anti-civil rights crowd would fight to create scorched earth policies for lawful citizens.

There is one piece of this that really hasn’t been talked about. The phrase: “The constitutional right to bear arms in public for self-defense is not “a second-class right…”

As simple as it sounds, is it really? What does that one statement mean to the rest of Bill of Rights? The 2A Community needs to be shouting loud and clear that the ruling clearly means that whatever government does to the Second, it must also apply to every civil right, period! Imagine the true breadth of this.

If government, as a nation or state, places restrictions on or precents you entirely from exercising your Second Amendment civil rights, then why should we trust you to vote intelligently and responsibly? How about sitting on a jury? If we are not supposed to trust you with a gun, why would we ever trust you to dispense justice fairly? If, for example, a single drunk driving conviction with no jail time permanently revokes your Second Amendment rights, why should it no revoke all the rest.

Imagine all those people who believe healthcare and higher education are civil rights. Now imagine the public outcry if they were to lose those rights because they were declared “unsuitable”? There would be riots in the streets and possibly a real insurrection.

What if anyone running for any public office had to meet the local standards and restrictions faced by the 2A community? After all, if someone is not eligible under local laws to exercise their 2A civil rights, then why should they have the ability to pass laws about it? How interesting would it be for the local police chief to have suitability authority over political candidates.

If all of this seems a little far-fetched it is only because the Second Amendment being treated as a true civil right is sadly a brand-new concept. If indeed the Second is not a “second class” civil right, which it is not, then there is going to have to be a profound awaking across the board with all civil rights. Moving forward, the message from the 2A community to government officials everywhere and the anti-civil rights crowd: “Whatever you do to us, you must do to everyone and every civil right, period. If what you propose is not acceptable for any other civil rights, then it is not acceptable for the Second!”

Supreme Court Requests Brief in Case Against Illinois Town’s ‘Assault Weapons’ Ban

Naperville, Illinois, will have to defend its ban on the sale of AR-15s and similar firearms before the Supreme Court.

Justice Amy Coney Barrett, who oversees the circuit the case against the ban is happening in, asked the city to respond to an emergency request for an injunction against the ordinance on Monday. That means at least one justice wants to hear more about the case before the High Court decides whether or not to weigh in. The city has until May 8th to answer claims that the ban violates the Constitution.

“We’re thankful the Supreme Court is taking the Second Amendment rights of Illinoisans seriously,” Dudley Brown of the National Association for Gun Rights (NAGR), a plaintiff in the case, said in a statement.

The move may indicate the Court is getting closer to taking up a case against so-called assault weapons bans. After it handed down a new test for gun cases in New York State Rifle and Pistol Association v. Bruen, the Court ordered the Fourth Circuit to rehear a case upholding Maryland’s ban. Federal judges have been split on whether the bans violate the Second Amendment under the new test, opening the door for potential Supreme Court intervention and clarification.

Illinois enacted a statewide ban earlier this year, but it has since been blocked in state and federal court. It has also faced substantial backlash from Illinois sheriffs, a majority of which say they won’t enforce the ban because they consider it unconstitutional.

NAGR was denied a preliminary injunction against the Naperville ordinance in February, and the Seventh Circuit rejected the gun-rights group’s request to block enforcement of the law while its appeal is being processed. Now, the group is making the same request to the Supreme Court.

If the Court does issue an injunction against the ordinance, it will signal similar bans adopted by ten states are unconstitutional. That could upend the debate over gun control in America, which has largely centered around prohibitions on the AR-15 and similar guns. But, while Barrett’s request for a brief increases the odds the case will see action, most cases where briefs are requested do not get a full hearing.

NAGR said it is confident it will prevail in the case, though.

“Any ban on so-called ‘Assault Weapons’ is plainly unconstitutional, and now it is on the city of Naperville to explain the legal justification for their ban,” Brown said. “Of course, there isn’t any. The bans were ludicrous from the start, and if Illinois had any sense, they would wave the white flag now and save us all some time.”

Naperville did not respond to a request for comment.

Senator Schumer’s Letter to Chief Judge Godbey (NDTX)
If you don’t do what I want, “Congress will consider more prescriptive requirements.

On Thursday, Senator Charles Schumer, the Majority Leader, sent a letter to the presiding officer of a federal court. No, it was not Chief Justice Roberts. Senator Durbin has that task locked down. Rather, Schumer sent the letter to Chief Judge Godbey of the U.S. District Court for the Northern District of Texas.

The theme, if you couldn’t guess, concerns case assignment in single-judge divisions in Amarillo, Wichita Falls, and Lubbock. (I’ve written about this topic at some length here and here.)

Schumer charged:

Even though the Northern District has twelve active judges and another four senior judges who still hear cases, your orders provide that civil cases filed in many divisions are always assigned to a single judge, or to one of just a few.

Cases filed in the Amarillo Division are always assigned to Judge Kacsmaryk; cases filed in the Wichita Falls Division are always assigned to Judge O’Connor; and cases filed in the Abeline, Lubbock, and San Angelo Divisions are split between just two judges. As a result of your recent assignment orders, plaintiffs in your district can now effectively choose the judge who will hear their cases.

Schumer issued an ultimatum: the court should “randomly” assign cases filed in “rural divisions,” or else.

The Northern District of Texas could, and should, adopt a similar rule for all civil cases. Currently, a federal statute allows each district court to decide for itself how to assign cases.

This gives courts the flexibility to address individual circumstances in their districts and among their judges. But if that flexibility continues to allow litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more prescriptive requirements.

It has come to this. The Senate Majority leader, who has no chance of actually passing court reform legislation, is issuing empty ultimatums to a federal judge. Anyone who can count to sixty knows such “prescriptive requirements” are dead on arrival. And certainly Schumer knows that as well. But Schumer’s intent, like that of Durbin, is not to actually engage in good-faith discussions with the judiciary. Rather the goal, as always, is to undermine the authority of judges he disagrees with.

To quote Justice Alito:

It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”

There have been no actual allegations that judges assigned to the Amarillo or Wichita Falls divisions have engaged in any judicial misconduct. (And no, authorship of a law review article that a judge did not actually write does not actually matter.) These judges have not been mandamused or reassigned by the court of appeals.

None of the progressive judges on the Fifth Circuit have, in dissent, charged these judges with malfeasance. And no bar complaints have been filed against the Texas Attorney General or other plaintiffs who have filed in these forums. DOJ has filed motions to transfer cases in these divisions. And, those motions have been denied. In doing so, these courts have rejected the premise of Schumer’s letter: that single-judge divisions undermine public confidence in the judiciary.

Senator Schumer is, in effect, seeking reconsideration of what Judges Tipton, Kacsmaryk, and others have already ruled. The chief judge of a federal district cannot sit in judgment of another district judge in his district. That job belongs to the court of appeals alone.

I am well aware that in 2016, Judge Godbey’s predecessor reassigned 15% of cases from the Wichita Falls division to herself. That was a controversial decision at the time, and one that was never fully justified. And Judge Godbey reversed that decision in 2022. I think it quite problematic for a single judge to take it upon herself to address what are, in effect, substantive grievances with a district court’s rulings.

From a pragmatic perspective, I am truly skeptical that all of the judges in Dallas would be willing to pick up a random share of cases in Amarillo or Lubbock. And no, as Senator Schumer suggests, remote hearings would not be an adequate substitute for actual parties in those communities.

The bigger problem, of course, is that Schumer has now boxed in Judge Godbey. If the Judge takes the sort of action that Schumer demanded, then he will be seen as caving to legislative pressure. If he ignores Schumer, he will be seen as enabling “judge shopping.” And law professors on Twitter will beat their drums.

My recommendation? Do nothing now. DOJ filed motions to transfer, which were denied. Those motions will be appealed to the Fifth Circuit. If the Fifth Circuit affirms those motions, then Judge Godbey will have definitive ground to maintain the status quo. Acting now would be premature, and frankly, would weaken the separation of powers and judicial independence.

Delaware: Federal District Judge Finds Unusual Way to Ban Semi-Auto Guns & Magazines

On March 27, 2023, Judge Richard G. Andrews of the U.S. District Court for the District of Delaware issued an opinion that denied the request for a preliminary injunction to stop enforcement of the State of Delaware’s unconstitutional ban on some semi-automatic rifles and standard capacity magazines.

Judge Andrews dug deeply into his interpretive consideration to find a way to deny the request for a preliminary injunction.

With the clear guidance given by the Supreme Court in the Bruen decision to clarify the Heller decision on the Second Amendment, Judge Andrews performed some mental gymnastics.

The Bruen decision told lower courts to stop using the convoluted “two-step” framework to decide Second Amendment cases. The “two-step” frame was widely criticized as a way for the lower courts to treat the Second Amendment as a “second-class right” in the Bill of Rights.

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Kentucky Supreme Court overturns rulings that allowed the removal of a Confederate statue

The Kentucky Supreme Court has overturned lower court rulings that allowed leaders in Kentucky’s largest city to remove a Confederate statue from a prominent location three years ago.

The 6-1 ruling issued Thursday said Louisville violated due process in getting approval to remove the John Breckenridge Castleman monument from Cherokee Triangle, news outlets reported.

The statue was vandalized several times over a few years before it was removed from its pedestal in June 2020 following a decision from Louisville’s landmarks commission.

A group called Friends of Louisville Public Art filed a lawsuit challenging the landmarks commission ruling. They argued the statue was a local landmark and said some commission members should not have been allowed to vote because they have a conflict of interest.

While the group acknowledged Castleman’s Confederate ties, they argued that he later renounced his allegiance to the Confederacy. Castleman later served as a brigadier general in the U.S. Army. He was partially responsible for establishing Louisville’s park system and fought to keep the city’s parks and playgrounds open to Black residents.

Kentucky’s Court of Appeals upheld a Jefferson Circuit Court judge’s ruling dismissing the lawsuit. The appeals court ruled that there were “no facts to support the conflict of interests claim.”

The Supreme Court disagreed. Chief Justice Laurance B. VanMeter said it was a “patent” conflict for city employees to vote on the application to remove the monument.

“… Their employment and their being asked to sit in review of an application filed by their employer were sufficient to raise a reasonable question of impartiality such that recusal was required as a matter of law,” he wrote for the majority.

Plaintiff Steve Wiser said he was pleased with the court’s ruling.

Kevin Trager, a spokesman for the city, said officials were reviewing the opinion before deciding how to proceed.

Federal Judge Rules Felons Aren’t Protected by Second Amendment

Convicted felons do not have gun rights, according to a new federal ruling.

Judge Holly A. Brady, who President Donald Trump appointed to the United States District Court for the Northern District of Indiana in 2019, denied a request last week to have a felon’s gun possession charge tossed on constitutional grounds. She found the Second Amendment does not protect Detric L. Cummings’, a convicted felon, ability to own a firearm. She further ruled that barring felons from owning guns is consistent with historical gun restrictions.

“The long list of colonial laws excluding felons from possessing firearms either shows that he is excluded from the protections of the Second Amendment or that § 922(g)(1) is consistent with the Nation’s historical tradition of firearm regulation,” Judge Brady wrote in United States v. Cummings. “Either is enough to defeat Defendant’s motion.”

The ruling is another example of how little success convicted felons have had in asserting protections under the Second Amendment, even in the wake of last year’s landmark New York State Rifle and Pistol Association v. Bruen. Despite the doubt cast on many modern gun restrictions by Bruen’s new standard for deciding gun cases, felons have had little success convincing courts that the Second Amendment forstalls prohibitions on their ability to own guns. In fact, Pepperdine University Professor Jake Charles recently released a report that found there hasn’t been a single successful Second Amendment claim brought against the federal law barring possession of firearms by convicted felons.

The recent setbacks come despite a handful of rulings and prominent dissents that questioned the federal lifetime prohibition on at least some, namely non-violent, felons owning guns. Justice Amy Coney Barrett dissented in favor of restoring the gun rights of a non-violent felon in 2019’s Kanter v. Barr. A similar case brought by a Pennsylvania man barred from owning guns over a welfare fraud conviction, Range v. Garland, recently lost before a panel of the 3rd Circuit but is currently awaiting a decision from the full court after oral arguments were held in February 2023.

United States v. Cummings does not deal with the question of non-violent felon gun rights, though. Cummings was arrested by Fort Wayne, Indiana police last summer for selling methamphetamine, fentanyl, and a revolver to an informant, according to WANE. The 40-year-old was convicted of shooting a woman over an unpaid debt in 2005. He was sentenced to 20 years in prison before being released in 2020.

Judge Brady was indignant at his attempt to have the gun possession charges tossed, arguing his plea flies in the face of “a virtual mountain of case law.” She said, “ninety-plus defendants that have hoed the same row in the past” and been denied. She dismissed his legal argument as little more than “academic.”

“Defendant has chosen the first step as the hill he will die on, arguing that he is one of ‘the people’ whose right to bear arms is protected by the Second Amendment, regardless of his extensive criminal history,” Judge Brady wrote. “And, to be sure, there is a healthy debate in the case law about who ‘the people’ are. But that debate is interesting only if you view the law as a zesty academic affair rather than a way to run an ordered society.”

She argued that, even if Cummings is part of “the people” mentioned in the Second Amendment, historical tradition would allow the government to restrict his access to guns. She briefly pointed to colonial bans on carrying firearms in a way that terrifies people and an 1866 South Carolina ban on “disorderly” people bearing arms. And she cited the Supreme Court’s notice in 2008’s Heller that its ruling did not cast doubt on felon gun bans.

Ultimately, in her two-page opinion, Judge Brady found the debate is settled and unworthy of a lengthy discussion.

“To spend judicial resources agonizing over which the Court should hang its hat on is little more than spilled ink,” she wrote. “More than ninety judicial opinions bear this out.”

Gun rights group files emergency petition to SCOTUS on gun ban case

Illinois has been going above and beyond as of late to make Second Amendment related news. The National Association for Gun Rights filed a lawsuit last year challenging the city of Naperville’s so-called “assault weapons” ban. That case, Bevis et al v. City of Naperville was amended earlier this year to include the State of Illinois as a plaintiff, which enacted a ban in January. The request for an injunction against the law made its way all the way to the Seventh Circuit, and Bevis et.al. were not granted any temporary relief. It was announced in a release that an emergency appeal has been filed to the Supreme Court of the United States on the matter.

There was a similar situation in the Second Circuit Court of appeals, with a challenge to a New York law that’s unconstitutional – also enacted post NYSRPA v. Bruen – and the plaintiffs were moved to make an emergency appeal to the high court. In that case, the Second Circuit refused to respect the NYSRPA v. Bruen decision. While SCOTUS did not intervene in that case, Justice Alito did state in an unsigned order the following:

Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.

Appealing to SCOTUS at these stages in the game for emergency relief is not necessarily something that’s commonplace, but may draw the ire of the justices on how the lower courts are disobeying their orders.

The National Foundation for Gun Rights (NFGR) is asking the United States Supreme Court to provide emergency relief from two assault weapons bans in place in Illinois.

NFGR argues that the Illinois ban violates the Second Amendment of the United States Constitution, which guarantees the right of individuals to bear arms. NFGR’s lawsuit also challenges an AR-15 sale ban enacted by the City of Naperville, IL.

NFGR initially requested a temporary restraining order and a preliminary injunction in the U.S. District Court for the Northern District of Illinois blocking both the state and local bans on behalf of fellow plaintiff, Naperville gun store owner Robert Bevis, whose livelihood has been severely impacted by both bans. The district court trampled multiple Supreme Court precedents to rule against gun rights, so foundation attorneys appealed to the Seventh Circuit Court of Appeals, pleading that Plaintiff Bevis was facing the loss of his business without speedy relief.

The Seventh Circuit declined to temporarily block the two semi-auto bans pending its review of the preliminary injunction appeal, so NFGR is filing an Emergency Application for Injunction Pending Appellate Review with the U.S. Supreme Court.

It’s interesting to note that in many cases, lower courts have been getting the orders correct. In this case, the Seventh Circuit, and in the case of Antonyuck v. Nigrelli, from the Second Circuit, they are not willing to enjoin bad laws while the cases play out. We’re likely to see cases out of New Jersey challenging the so-called “carry killer” law there, head to the Third Circuit as soon as an opinion is delivered by Judge Bumb in a Federal Court.

Is this going to be the trend? Are the Circuit Courts of Appeal going to completely ignore the Supreme Court on all these issues concerning firearms by reversing the enjoinment/restraining orders of lower courts, or not enjoining them themselves?

“The assault weapons ban is a blatant violation of the rights of law-abiding citizens and does nothing to address the causes of gun violence,” said Dudley Brown, President of the National Foundation for Gun Rights. “Between them, Illinois and the City of Naperville are about to drive a law-abiding gun store owner into bankruptcy just because they don’t like his business. That’s grossly unconstitutional, and we’re asking the Supreme Court to put a stop to it.”

NAGAR’s opening remark in their filing to the high court hits at the core of the issue:

This is an exceedingly simple case. The Second Amendment protects arms that are commonly possessed by law-abiding citizens for lawful purposes, especially self-defense in the home. See New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2128 (2022) (citing D.C. v. Heller, 554 U.S. 570, 629 (2008)).

The arms banned by Respondents are possessed by millions of law abiding citizens for lawful purposes, including self-defense in the home. Under this Court’s precedents, “that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman v. City of Highland Park, Ill., 577 U.S. 1039 (2015) (Thomas, J., joined by Scalia, J., dissenting from denial of certiorari). There cannot be the slightest question, therefore, that the challenged laws are unconstitutional.

Kudos! to NAGAR for punting this case into the lap of the Supreme Court. Eventually one of these lower courts’ decisions is going to tick off the high court at one of these stages and they’re going to have to step in. At least, one would think so.

Given the way the Circuits behave, we can almost assume that whenever the pending cases in California make their way to the Ninth Circuit, that we’ll be dealing with similar malfeasance within the judicial system, and who knows what’ll come of the cases in the Third Circuit. We’ll be watching the progress of this case and report back with any new developments.