Category: Courts

Another look at that serial number court ruling

Ban on guns with serial numbers removed is unconstitutional -U.S. judge

Oct 13 (Reuters) – A federal judge in West Virginia has ruled that a federal ban on possessing a gun with its serial number removed is unconstitutional, the first such ruling since the U.S. Supreme Court dramatically expanded gun rights in June.

U.S. District Judge Joseph Goodwin in Charleston on Wednesday found that the law was not consistent with the United States’ “historical tradition of firearm regulation,” the new standard laid out by the Supreme Court in its landmark ruling.

The decision came in a criminal case charging a man, Randy Price, with illegally possessing a gun with the serial number removed that was found in his car. The judge dismissed that charge, though Price is still charged with illegally possessing the gun after being convicted of previous felonies.

Price’s lawyer, Lex Coleman, called the decision “thoughtful, measured and accurate.” A spokesperson for the office of U.S. Attorney William Thompson in Charleston, which is prosecuting the case, said the office was “reviewing the ruling and assessing options.”

The federal law in question prohibits anyone from transporting a gun with the serial number removed across state lines, or from possessing such a gun if it has ever been transported across state lines.

Serial numbers, first required by the federal Gun Control Act of 1968, are intended to prevent illegal gun sales and make it easier to solve crimes by allowing individual guns to be traced.

Price argued that the law is unconstitutional in light of the Supreme Court’s June 24 ruling in New York State Rifle & Pistol Association Inc v. Bruen. That ruling held that under the Second Amendment of the U.S. Constitution, the government cannot restrict the right to possess firearms unless the restriction is consistent with historical tradition.

Bruen said serial numbers were not required when the Second Amendment was adopted in 1791, and were not widely used until 1968, putting them outside that tradition.

Even in Los Angeles………

U.S. Supreme Court aids gun rights yet again

The United States Supreme Court has no troops to enforce its rulings, but the justices are doing what they can to enforce their decision earlier this year in a major Second Amendment case, New York State Rifle & Pistol Assn., Inc., v. Bruen.

Last week the court took a dim view of a Massachusetts law that bars people convicted of gun-related misdemeanors from ever being allowed to buy a handgun again.

In Morin v. Lyver, the First Circuit Court of Appeals upheld the Massachusetts law using a two-step balancing test that the Supreme Court forcefully threw out in its New York State Rifle & Pistol decision. The Supreme Court has now vacated the First Circuit’s ruling and sent the case back down to be heard again under the high court’s new standard, which is based not on subjective judicial balancing tests, but on history.

This time Massachusetts will have to prove that its law barring some people from buying guns is similar to restrictions that have traditionally been viewed as consistent with the right to keep and bear arms.

Dr. Alfred Morin was arrested for carrying a gun without a permit while on a trip to Washington, D.C., in 2004. Morin was licensed to carry in Massachusetts and didn’t realize his permit was not valid in D.C. due to the city’s total ban on carrying a gun (later declared unconstitutional). He was arrested after he complied with a no-gun sign at a museum and tried to check his gun with security. He pleaded guilty to carrying a gun without a license and was sentenced to jail time, but never required to serve it.

That misdemeanor conviction now bars Morin from ever again obtaining a permit to buy a handgun. He sued the state, but the U.S. District Court found that the law was constitutional because Morin was not a “law-abiding citizen,” having been convicted of a gun-related misdemeanor warranting imprisonment. The Court of Appeals agreed with that reasoning.

However, under the Supreme Court’s new standard, it’s no longer enough for courts to find that the states have “an interest in preventing crime” and then determine if the law is “reasonably tailored” to meet those needs. The presumption now is that individuals have the right to keep and bear arms. States must prove that any laws restricting that right have traditionally been consistent with Second Amendment rights going all the way back to the early days of the Republic.

Morin v. Lyver is the fifth case the Supreme Court has vacated and sent back down for reconsideration under the new standard. One is a California case, a challenge to the state’s 10-round magazine limit. In addition, a Ninth Circuit en banc panel vacated a decision in McDougall v. Ventura County, involving a challenge to the closure of gun shops early in the COVID-19 pandemic. The case has been sent back to the trial court to be reconsidered in light of the Supreme Court’s ruling in the New York case.

This is an important course correction. The Second Amendment right to keep and bear arms is not a privilege that governments may arbitrarily withhold or revoke. A written constitution is the consent of the governed, and it places limits on government power. Enforcing those limits is the job of the Supreme Court. Freedom depends on it.

Public Housing Complexes May Not Ban Gun Possession by Tenants

From [yesterday’s] decision in Columbia Housing & Redevelopment Corp. v. Braden, decided today by the Tennessee Court of Appeals, in an opinion by Judge Frank G. Clement, Jr., joined by Judges Andy D. Bennett & W. Neal McBrayer:

On April 19, 2018, Kinsley Braden signed a lease agreement with Columbia Housing for the privilege of residing at 103 West Willow Street in Creekside Acres. The lease agreement incorporated by reference the Community Housing Rules, which prohibited, inter alia, any resident from possessing a firearm on the premises. In relevant part, the Community Housing Rules read: “No Weapons & Firearms. The possession or use of any type of weapon, firearm, or dangerous object is strictly prohibited within the boundaries of the property.”

On November 4, 2020, Columbia Housing learned that Mr. Braden had been keeping a handgun in his residence. As a result, Columbia Housing filed a Detainer Summons against Mr. Braden, seeking to evict him ….

The lower court ruled for Columbia Housing, but the appellate court ruled for Braden, reasoning:

Columbia Housing is a government entity acting as the landlord of the Creekside Acres residences…. For this reason, the actions of Columbia Housing and the policies of Creekside Acres must conform to the Constitution….

Continue reading “”

New York’s new concealed carry law can remain in effect for now, court rules

A federal appeals court has agreed to let New York’s concealed gun law remain in effect until a three-judge panel weighs in on a court ruling that blocked parts of the restrictive gun measure.

In a two-sentence ruling, 2nd Circuit Court Judge Eunice Lee referred New York state’s request for a stay of the temporary restraining order to a three-judge panel while the state appeals the merits of a ruling blocking the enforcement of part of the law.

The court also granted the state’s request to pause the temporary restraining order from going into effect pending the result of the panel review.

Last Thursday, a federal court issued a temporary restraining order which would have prevented enforcement of parts of the “Concealed Carry Improvement Act.” The law was enacted in the wake of the Supreme Court decision this summer striking down a New York gun law that placed restrictions on carrying a concealed handgun outside the home.

The measure enacts a strict permitting process for concealed-carry licenses and it requires background checks for ammunition sales. It also restricts the concealed carry of firearms in locations such as government buildings.

But the plaintiffs in the case at hand, including at least one individual who wants to carry his firearm in church, argue the state is violating their Second and 14th Amendment rights by denying them the right to self-defense.

Nationwide, in the three months since the 6-3 Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen, scores of new lawsuits have been filed against gun restrictions at the federal, state and local levels.

Though the Supreme Court case concerned a type of gun permitting regime embraced by just a handful of states, the conservative majority used the Bruen decision to provide new instructions for how courts are to assess the constitutionality of gun laws nationwide.

The decision was the first major Supreme Court guns ruling in more than a decade, and it came after Justice Clarence Thomas — who authored the majority opinion — had previously complained that the high court had allowed the Second Amendment to be treated as “a disfavored right.”

3 Months After Bruen Ruling, Antis Still Trying to Dance Around Constitution

More than three months after the landmark Supreme Court ruling that struck down New York’s unconstitutional, and century-old gun permit “good cause” scheme, anti-gunners continue trying to get around the Second Amendment, while the media seem content to help the whining.

According to CNN, since the June 23 smackdown of New York’s carry permit law in New York State Rifle & Pistol Association v. Bruen, “scores of new lawsuits have been filed against gun restrictions at the federal, state and local levels.” The cable news network report also noted, “This shift in burden has put gun rights groups at a greater advantage in court. It has also changed the type of work that government defenders – and the outside gun safety groups that often support them in litigation – must do to advocate for their laws.”

Monday, anti-gun New York State Attorney General Letitia James announced she will fight a federal court ruling from last week that declared some tenets of the state’s new law—hastily adopted just days after the high court ruling—were unconstitutional. Speaking defiantly, James said her office had “filed a motion to keep the entire Concealed Carry Improvement Act in effect and continue to protect communities as the appeals process moves forward. This common-sense gun control legislation is critical in our state’s effort to reduce gun violence. We will continue to fight for the safety of everyday New Yorkers.”

In a prepared statement, James’ office said the new law “strengthens requirements for concealed carry permits, prohibits guns in sensitive places, requires individuals with concealed carry permits to request a property owner’s consent to carry on their premises, enhances safe storage requirements, requires social media review ahead of certain gun purchases, and requires background checks on all ammunition purchases.”

Critics complain the new statute is as bad, if not worse, than the original law.

The New York Times said ruling by District Judge Glenn Suddaby “dealt a sharp blow to New York, which had sought to provide a model for new gun legislation for the five other states whose laws were invalidated by the Supreme Court’s June ruling — in part by outlining how those ‘sensitive places,’ where the court said it was permissible for states to bar guns, can be defined.”

Ramping up the rhetoric, anti-gun New York City Mayor Eric Adams announced Tuesday he was designating Times Square as a “gun free zone.”

The Times story quoted Judge Suddaby, who called the “good moral character” requirement of the new law “fatally flawed.” He also said the demand for access to someone’s social media accounts for the previous three years would not pass muster.

“No such circumstances exist under which this provision would be valid,” the judge said.

Lawsuit Targets Glendale, CA Over Gun Ban On Public Property

California – -(AmmoLand.com)- The Second Amendment Foundation and its partners today filed a federal lawsuit asking for declaratory and injunctive relief against the City of Glendale, Calif., its police chief and city clerk. The case is known as CRPA v. Glendale.

Joining SAF are the Gun Owners of California and the California Rifle & Pistol Association. They are represented by attorneys Chuck Michel, Joshua Robert Dale, Konstadinos T. Moros of Long Beach, and Donald Kilmer of Caldwell, Idaho. In addition to the City of Glendale, the defendants are Police Chief Carl Povilaitis and City Clerk Suzie Abajian in their official capacities. The complaint was filed in U.S. District Court for the Central District of California, Western Division.

“The City of Glendale’s municipal code generally bans possession of firearms and ammunition on any city property, with no exception for citizens with concealed carry permits,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This ban applies not just to city property, but also publicly-controlled property or public-affiliated private property, with the only exceptions being streets, roads and sidewalks. Such restrictions relegate the right to keep and bear arms to the status of a strictly-regulated government privilege.

“Our lawsuit is blunt,” he continued. “The Glendale ordinance is unconstitutional. The Supreme Court has made it clear that the right to keep and bear arms for personal protection extends outside the home. As we note in our complaint, the burden is on the city to prove that all areas falling within the definition of ‘city property’ are so-called ‘sensitive places,’ and they cannot do it.”

As explained in the 24-page complaint, the city has 47 parks and recreation facilities (including four community centers, one golf course, three soccer fields, and sixteen ball fields), playgrounds, eight public libraries, three downtown parking structures and other city-owned or operated parking lots, the Glendale Civic Auditorium and civic center complex, a youth center, an emergency center, undefined “open spaces” and “plazas,” and an unknowable amount of properties in the possession of private companies under contract with the city.

“That broad definition essentially turns much if not most of the city into a gun-free zone where Second Amendment rights do not exist, and that simply doesn’t pass the smell test,” Gottlieb stated. “We are hopeful the court quickly recognizes this and grants our request.”

The first lawsuit, against manufacturers, was thrown out. This one is against dealers and distributors. I think it’ll fare no better, but you never know. In any case, most of the weapons the cartels have are stolen from the Mexican military, or sold to them by corrupt people in the Mexican military. You don’t buy M2, M240, M4 & automatic AK machineguns at the local gun store

Mexico files 2nd lawsuit against arms dealers in US

MEXICO CITY (AP) — The Mexican government filed another U.S. gun lawsuit Monday, this time against five U.S. gun shops and distributors it claims are responsible for the flow of illegal weapons into Mexico.

Mexico’s first lawsuit, which was recently dismissed, targeted U.S. gun manufacturers. The second, which Foreign Affairs Secretary Marcelo Ebrard said was filed in Arizona’s federal district court Monday, targets gun dealers.

“We are suing them because clearly there is a pattern, we contend that it is obvious that there is weapons trafficking and that it is known that these guns are going to our country,” Ebrard said.

Ebrard promised last week the new lawsuit would target gun shops or dealers in U.S. border states who sell guns to “straw” purchasers who pass them on to smugglers, who then take the weapons into Mexico.

Mexico is suing for unspecified monetary damages and to demand the gun stores hire independent monitors to ensure that U.S. federal laws are followed in gun purchases.

Alejandro Celorio Alcántara, the legal adviser to Mexico’s Foreign Relations Department, said Mexico had chosen “the five worst stores” to name in the lawsuit, including three gun outlets in Tucson, one in Phoenix and one in Yuma, Arizona.

“They are not careful when they sell products, so they allow straw purchasers to buy guns,” said Celorio Alcántara, adding they sold multiple guns, multiple times to some purchasers. “We are saying they are negligent and facilitate straw purchasers, to the point of being accomplices.”

He claimed that U.S. criminal investigations had traced weapons purchases back to the stores, and said there was evidence that the shops had not filed required information on some purchases.

“The main argument of our lawsuit is that these businesses are an organized part of a criminal enterprise, a mechanism, to facilitate criminals and cartels in Mexico being able to use their weapons,” said Celorio Alcántara.

He said the first hearing on the suit might not come until the summer.

Ebrard said about 60% of the weapons seized in Mexico in recent years were believed to have been sold in 10 U.S. counties, mostly along the border. Mexico has very strict restrictions on weapon possession, but drug cartel violence has cost hundreds of thousands of lives in the country in recent years.

“We are going to show that many of these outlets where they sell these products in these counties I mentioned, are dealing with straw purchasers, and criminal charges have to be brought,” Ebrard said last week in an appearance before the Mexican Senate.

A recently enacted U.S. law defines straw purchasing as a crime, and sets out sentences of as much as 15 to 25 years if the offense is related to drug trafficking.

Celorio Alcántara said that was a key difference between this and Mexico’s earlier lawsuit: in the Arizona suit, Mexico is arguing a violation of U.S. laws.

The announcement comes several days after a U.S. federal judge dismissed Mexico’s first lawsuit against U.S. gun manufacturers; Mexico has said it will appeal that decision.

The judge ruled Mexico’s claims against the gun makers did not overcome the broad protection provided to firearms manufacturers by the Protection of Lawful Commerce in Arms Act passed in 2005.

The law shields gun manufacturers from damages “resulting from the criminal or unlawful misuse” of a firearm.

Mexico was seeking at least $10 billion in compensation, but legal experts had viewed the lawsuit as a long shot.

The Mexican government estimates 70% of the weapons trafficked into Mexico come from the U.S., according to the Foreign Affairs Ministry. It said that in 2019 alone, at least 17,000 homicides in Mexico were linked to trafficked weapons.

No, SCOTUS didn’t just rule against gun rights

Today it’s often difficult to determine when the mainstream media is being deliberately deceptive or is just incompetent. Whatever the case may be, they are routinely wrong.

Take for instance a recent ABC News headline reporting that the U.S. Supreme Court upheld the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) bump-stock ban:

Supreme Court upholds bump stock ban in big win for gun safety advocates

The Supreme Court did no such thing.

In December 2018, the ATF published a final rule amending the code of federal regulations to declare that items colloquially known as bump-stocks fall under the definition of “machineguns” as defined in the National Firearm Act. As these items were not registered prior to when the federal government froze the sale of new machineguns in 1986, the rule made bump-stocks contraband.

Gun rights proponents across the country took exception to what many perceived as impermissible executive branch law-making. As a result, several cases challenging the new rule were filed in federal court. Rather than concerning the Second Amendment, at issue in these cases is the permissible scope of administrative rule-making and the extent to which administrative agencies should or should not be given deference in interpreting criminal statutes.

In the case Aposhian v. Garland, the U.S. Court of Appeals for the Tenth Circuit upheld the ATF rule, at which point the plaintiffs petitioned the U.S. Supreme Court to take the case in August 2021. Similarly, in Gun Owners of America, Inc. v. Garland, the U.S. Court of Appeals for the Sixth Circuit upheld the ATF rule, prompting the plaintiffs to petition the Supreme Court in March 2022. On October 3, the Supreme Court declined to hear either case.

First, denying cert in a case is not a ruling on the merits of that case. The decision not to take a case is not an explicit endorsement of a lower court’s ruling. In his dissent in Darr v. Burford (1950) Justice Felix Frankfurter explained,

The significance of a denial of a petition for certiorari ought no longer to require discussion. This Court has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim. The denial means that this Court has refused to take the case. It means nothing else.

Second, there is good reason in this instance why the Supreme Court may want to take a wait and see approach to how the law in this area develops in the lower federal courts.

At present, another bump-stock case, Cargill v. Garland, is making its way through the U.S. Court of Appeals for the Fifth Circuit. In December 2021 the Fifth Circuit upheld the ATF rule in this case. However, following a petition by the plaintiff, in June the Fifth Circuit agreed to hear the case en banc (in front of the full court, rather than just a panel of circuit court judges).

Could the Supreme Court be waiting on the Fifth Circuit to rule en banc before entertaining a bump-stock case? That is a distinct possibility. What isn’t is that the Supreme Court has made a ruling on the merits of these important cases. Reporters should know better.

Man can argue he needed handgun because police did not protect him, N.J. court rules

A state appeals court has reversed a man’s handgun possession conviction after finding he should have been able to argue he needed it for protection from people trying to kill him for cooperating with police.

The court, in a Tuesday decision, found merit in the man’s arguments that the danger he faced was real, and that authorities had not sufficiently helped him – after he’d helped them by wearing a wire in an investigation.

The man, who was identified only by his initials, was beat up twice, shot at once and moved residences before finally arming himself in case his attackers accosted him again, the decision describes.

Before that occurred, a Lawrence police officer arrested him during a traffic stop in 2015, and found the Beretta pistol in his pants. He was 21 years old at the time.

After being unable to suppress the gun evidence and the trial judge in Mercer County ruling against his defense, the necessity defense, the man took a plea bargain. A judge sentenced him to eight years behind bars with four as a mandatory minimum.

The man’s appeal failed in one part. He argued that the Lawrence police officer overstepped during the traffic stop by asking the driver to roll down the rear, tinted windows, where he found the man as one of two backseat passengers.

The officer also smelled marijuana and eventually searched the car, with the driver’s consent, and the occupants – and only found the gun in the defendant’s pants. One bullet was in the chamber.

The appeals court found the officer’s actions lawful, as he was dealing with four people during a nighttime stop and the steps he took to protect himself were reasonable.

The court took issue with the barring of the necessity defense, which allows defendants to argue that their conduct, while normally illegal, was necessary or justified in a limited instance – in this case, carrying a gun.

The decision says the man described his situation to a police detective: he’d helped police and prosecutors in a prior case and now people were “after him.”

After the two assaults and being fired upon, and moving, he sought help from a detective and the prosecutor from the case, but received no assistance. He told police he wanted to move out of state, but could not due to being on probation.

He then admitted obtaining the gun a few days prior and knew it was loaded with the bullet.

He had a plan, he told the detective interviewing him, that if confronted a fourth time, he’d fire the gun and flee.

The Mercer prosecutor’s office argued against the necessity defense in the appeal, saying the man had not qualified for the defense, specifically that he had not been met with an “imminent and compelling” emergency.

The appeals court disagreed.

The man wore a wire for police. “By doing so, he assisted police in performing their duty to protect the public. Through no fault of his own, his cooperation with the police led to him being beaten up twice and fired upon in his own community,” the decision said.

“Defendant was acutely aware that other individuals in the community wanted to hurt or kill him. We find more than sufficient evidence … to conclude that the threat to defendant was ‘imminent and compelling,’ and raised a reasonable expectation in the defendant that he would suffer physical injury, if not death,” the decision went on.

The defendant’s, “plea to law enforcement for assistance went unanswered. He tried to move out of state to avoid the threat to his life, however he was unable to do so. Defendant also changed his local residence to avoid encounters with his attackers, which didn’t work, as he was attacked outside his new home.”

“Consequently,” it said, “he faced a crisis with no opportunity to avoid repeated assaults until he was severely injured or killed.”

A jury should hear those arguments and be the deciders, the decision says.

NY AG appeals judge’s decision halting enforcement of most new carry restrictions

New York Attorney General Letitia James is asking the Second Circuit Court of Appeals to overturn a federal judge’s decision to halt enforcement of many aspects of the state’s new Concealed Carry Improvement Act, arguing that there’s a “serious risk of irreparable harm to public safety and the possibility of regulatory chaos” if U.S. District Judge Glenn Suddaby’s decision to grant a temporary restraining order is allowed to take effect.

Suddaby’s ruling left intact, at least for now, the draconian training requirements imposed by the state in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, but barred enforcement of most of the state’s new “sensitive places” where guns are banned, as well as many of the other requirements mandated for those applying for a concealed carry permit; turning over social media accounts and informing authorities of all other family members living with the applicant among them.

In her request to the Second Circuit, James claims that if the appeals court allows the TRO to take effect, the result will be massive confusion over the status of the law, which might be true but pales in significance compared to the daily deprivation of the right to keep and bear arms that the CCIA has enabled.

Exposing eighteen million New Yorkers to a heightened risk of gunfire severely outweighs any prejudice to plaintiffs here from a stay.Five plaintiffs allegedly wish to carry guns into specific sensitive or restricted places, such as the Rosamond Gifford Zoo, the airport for a flight to Tennessee, the church where one plaintiff lives, or Catskills State Park, through which another plaintiff must drive.

Yet the district court restrained defendants from enforcing the challenged CCIA provisions on a statewide basis, as applied to anyone — a remedy far beyond what relates to the individual harms alleged.

Well, no. Virtually everyone who possesses a concealed carry permit and all those who wish to do so are being harmed by the state’s new restrictions. As for the potential for “regulatory chaos” if the new laws are halted, I have news for James and other anti-gun Democrats: the CCIA is already sowing confusion. In fact, in St. Lawrence County no concealed carry applications have been issued since the law took effect back on September 1st because no one is clear on what the law entails.

“We just haven’t been accepting applications since the new law has taken effect. Number one, the state has already changed the application that they originally came out with once. You know, to keep processing stuff that’s not even right to begin with. So at this point basically what it is is that we’re waiting for clarification from both the state and the judge,” said Santamoor.

As New York’s gun laws work their way through the courts, gun shop owner Matt Pinkerton is frustrated, believing the new laws were flawed from the start.

“I completely understand why the permit process would be slowed or halted at this point because the governor has put into place a system that is very logistically difficult to enact,” he said.

For New York lawmakers, the confusion isn’t a bug, but a feature of the new law meant to artificially depress the number of citizens exercising their right to carry a firearm in self-defense.

James offered no real historical analogues to the sweeping number of locations deemed “sensitive” and off-limits to concealed carry. Instead, she argues to the Second Circuit that it’s the plaintiffs themselves who had the burden of showing that the Second Amendment’s text and tradition “plausibly encom-passed any of these areas.” In a bit of circular logic, James claims that once a state has declared a location to be a “sensitive place”, it should automatically be presumed to be justified.

Carrying weapons in sensitive places has traditionally been “altogether prohibited.” These areas thus fall outside the “scope of the Second Amendment,” and are “an exception to the general right to bear arms” codified therein. 

The question, of course, is whether New York is violating the Second Amendment rights of its residents by declaring broad swathes of the state to be “gun-free zones.” Under James’s argument, once the state has deemed a particular location to be “sensitive”, it automatically falls outside of the Second Amendment’s protections; a nice trick, but one that flies in the face of what the Supreme Court actually said in Bruen.

James also takes issue with how Suddaby determined that many of the state’s “sensitive places” don’t have similar analogues in U.S. history.

Second, the court’s analogies were flawed—none more so than for barring weapons on mass transit, which the court held to be inconsistent with nineteenth-century laws authorizing carrying pistols when “‘on a journey.’” Old and new regulations may be “relevantly similar” in many ways.

Comparing hurtling through tunnels in electrically powered cars filled with thousands of people (including schoolchildren and the elderly) to journeying via horse through the countryside is like saying that “a green truck and a green hat are relevantly similar” because both are green.

It’s worth noting that “hurtling through tunnels in electrically powered cars” with a permitted concealed firearm was perfectly legal on New York City subways until just a few weeks ago. The ban on concealed carry on public transportation in the city and state wasn’t enacted until after the Bruen decision was handed down; before that those chosen few who were lucky or well-connected enough to receive a permit were perfectly fine carrying on the subway. Only after the average New Yorker was told she could do the same did the state reverse course and declare mass transit to be “sensitive places” where guns must be banned; again without any evidence that there were similar bans in place at the time of the ratification of either the Second or Fourteenth amendments.

All in all I found James’ initial filing to be less than impressive, but given the Second Circuit’s past hostility towards the right to keep and bear arms she might not need a strong argument to be successful at blocking Suddaby’s ruling from taking effect… at least immediately. No matter what the Second Circuit decides, expect this to be appealed up to the Supreme Court, and hopefully it won’t take long for the justices who struck down New York’s “may issue” laws to halt enforcement of the state’s latest infringements on the right to keep and bear arms.

SAF FILES MEMORANDUM FOR PRELIMINARY INJUNCTION

BELLEVUE, WA – Attorneys for the Second Amendment Foundation’s challenge of California’s new law that includes a one-way fee-shifting penalty to discourage lawsuits against restrictive gun laws have filed a memorandum of points and authorities in support of their motion for a preliminary injunction.

Attorneys Bradley A. Benbrook and Stephen M. Duvernay of the Benbrook Law Group, PC, and David H. Thompson, Peter A. Patterson and Joseph O. Masterman of Cooper & Kirk, PLLC filed the memorandum, which asserts plaintiffs have already suffered harm due to the constitutional violations contained in the new law.

The lawsuit, and this new memorandum, allege the law (Section 1021.11 of the California Penal Code) is unconstitutional under the Supremacy Clause, and that it also violates the First Amendment right to petition the government for redress of grievances. The statute also discriminates against gun rights plaintiffs in violation of the Equal Protection Clause of the 14th Amendment, according to the lawsuit.

SAF is joined by Gunfighter Tactical, LLC, PWGG, L.P., the San Diego County Gun Owners’ PAC, California Gun Rights Foundation, Firearms Policy Coalition, Inc., Dillon Law Group, P.C., John Phillips, Ryan Peterson, George M. Lee, John W. Dillon and James Miller, for whom the lawsuit is named.

The new motion also says Section 1021.11 has “caused several Plaintiffs to dismiss or refrain from bringing additional lawsuits challenging other California firearms regulations that they believe are unconstitutional.”

“We are pulling out all the stops in fighting this new statute because of its egregious nature,” said SAF founder and executive vice president Alan M. Gottlieb, one of the plaintiffs in the case known as Miller v. Bonta. “Section 1021.11 is part of Senate Bill 1327, adopted earlier this year in reaction to a Texas law passed last year, which is about abortion. The California law was crafted as a political response to the Texas statute, which California Attorney General Rob Bonta, the chief defendant in our case, described as ‘blatantly unconstitutional.’

“Bonta is trying to have it both ways,” Gottlieb continued. “He simply cannot protest a law he considers unconstitutional by enforcing another law which is equally unconstitutional in what amounts to a childish political snit that began with California Gov. Gavin Newsom and the California legislature.”

 

A Second Amendment With Teeth
The Court’s Bruen decision actually protects Americans’ Second Amendment rights.

Democrat-controlled state governments may finally be starting to realize the precedent problem standing in the way of their gun-control agenda. As I wrote when the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in June, the Court declared in that ruling a strong restoration of the Second Amendment: “the Second Amendment protects the rights of law-abiding, adult citizens (“the People”) to keep and bear arms, particularly weapons in common use. Therefore, any law restricting that right needs to be consistent with the Nation’s ‘historical tradition of firearm regulation.’”

The Court laid out a very strict and specific rule to which gun-control laws must conform in order to avoid being declared unconstitutional. As history shows, there were very few (if any) regulations concerning commonly used weapons at the time the Second Amendment was ratified. Therefore, it stands to reason that there are very few regulations concerning commonly used weapons that will survive Second Amendment analysis post-Bruen.

Of course, that will not stop the left from trying. But perhaps they will finally start to see the pattern. At the end of the 2021-2022 Supreme Court term, the Court issued a series of summary decisions in four cases, including Bianchi v. Frosh, vacating lower-court decisions principally involving “extended” magazines and assault-rifle bans. The Court’s decisions required the lower federal courts to rehear the cases in light of the decision in Bruen.

On October 5, the Supreme Court vacated a lower-court decision in a case called Morin v. Lyver. The lower court upheld the constitutionality of a Massachusetts statute that included strict licensing standards to purchase or possess a pistol. The law included a lifetime ban on licensing to those convicted of certain non-violent offenses involving possession or use of firearms. The Supreme Court used language identical to that in Bianchi v. Frosh and the other cases mentioned above: the case was “remanded to the United States Court of Appeals for the First Circuit for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen.”

These results are not surprising. The U.S. Supreme Court takes cases and writes extensive opinions when there are difficult questions of law that have not been answered, when bad precedent needs to be revisited and overwritten, and when different federal circuit courts disagree on interpretation of law. The Court will not waste its time hearing cases that have already been clearly decided—a category that will include most Second Amendment cases post-Bruen.

The Bruen test is clear. If a law restricts the right to keep and bear arms, especially weapons in common use, that law is unconstitutional unless the law is consistent with traditional, historic firearm regulations. Laws that ban or severely regulate weapons in common use are simply not going to survive scrutiny under Bruen. Both handguns and long rifles such as AR-15s are objectively weapons in common use.

Continue reading “”

Obama Judge Denies NY Jews a Temporary Stop of Hochul’s Ban On Guns In Synagogues

In an insulting reiteration of NY Governor Kathy Hochul’s stunning hypocrisy over the rights of people to defend themselves, an Obama-appointed judge has DENIED a requested Temporary Restraining Order (TRO) against the NY state “sensitive area” gun ban called the Concealed Carry Improvement Act (CCIA), which went into effect September 1.

As I recently reported, the New York State Jewish Gun Club filed suit on September 29, after members and the group’s legal council recognized the threat of the CCIA – which Hochul signed on July 1, and which represents her leftist NY Assembly’s blitzkrieg response to the U.S. Supreme Court’s June “Bruen” gun decision supposedly insuring that the right to keep and bear arms also includes the obvious right to carry a concealed weapon outside the home. The half-hearted Bruen decision left wiggle room for oppressive state politicians to claim that certain “sensitive” public areas were off limits to the right of concealed-carry.

And Hochul’s hypocrisy is so towering that, even as she backed a “legislative package” supposedly honoring Holocaust victims over the summer, she and her pals in the state legislature smacked together a new statute that would ban concealed carry within synagogues and houses or worship — or, as I mentioned, at any of what they ambiguously call places where there is a “religious observance.”

In other words, she is threatening people that she will use gun-grabbing state aggression, and possibly use it against some of the same Holocaust survivors and/or their descendants who were attacked by the gun-grabbing Nazi regime.

Now, the new development. The NY State Jewish Gun Club filing in Federal District Court to temporarily restrain enforcement of Hochul’s gangland CCIA “religious observance” and “house of worship” gun ban has proven fruitless. BearingArms’ Cam Edwards caught the news, right away:

“Their first request was for a temporary restraining order prohibiting the state from enforcing that portion of the Concealed Carry Improvement Act; a request that was denied on Monday afternoon by U.S. District Judge Vernon S. Broderick.”

And, guess what? The judge got his tax-funded job thanks to leftist political engineers:

“In his ruling, the Obama-appointed judge (who also has political ties to gun control fans Michael Bloomberg and former NY Gov. Andrew Cuomo) found that the plaintiffs had not met the requirements for a TRO (Temporary Restraining Order)…”

Here, observers can see a telling sign of the difference between a person who respects natural, God-given, rights, and a person looking only at material concerns, a person who cannot understand, or will not acknowledge, that the term “injury” does not pertain merely to physical harm, but includes the abstract and perennial realm of principles.

Broderick’s argument stands on the spongy notion that, as he declares:

“…I find that the harm pled is too remote and speculative, and fails to reach the stringent standard of ‘immediate irreparable harm.’”

Continue reading “”

BLM Rioter Who Murdered Retired St. Louis Police Captain Sentenced to Life in Prison Without Parole

The 26-year-old man convicted of killing retired St. Louis Police Captain David Dorn was sentenced to life in prison without parole on Wednesday.

Stephan Cannon’s sentencing comes after a jury convicted him in July of fatally shooting Dorn in June 2020. The 77-year-old was responding to a burglary alarm at a friend’s pawn shop during a night of Black Lives Matter rioting when Cannon shot him.

Cannon was convicted in July on all of felony charges he faced, including first-degree murder, first-degree robbery, first-degree burglary, stealing $750 or more, unlawful possession of a firearm, and three counts of armed criminal action…..

It’s also blatant vote pandering a month from midterm elections that looks to rake the demoncraps over the coals.

Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law
The move represents a fundamental change in America’s response to a drug that has been at the center of a clash between culture and policing for more than a half-century.

WASHINGTON — President Biden on Thursday pardoned thousands of people convicted of marijuana possession under federal law and said his administration would review whether marijuana should still be in the same legal category as drugs like heroin and LSD.

The pardons will clear everyone convicted on federal charges of simple possession since it became a crime in the 1970s. Officials said full data was not available but noted that about 6,500 people were convicted of simple possession between 1992 and 2021, not counting legal permanent residents. The pardons will also affect people who were convicted under District of Columbia drug laws; officials estimated that number to be in the thousands.

The pardons will not apply to people convicted of selling or distributing marijuana. And officials said there are no people now serving time in federal prisons solely for marijuana possession. But the move will help remove obstacles for people trying to get a job, find housing, apply to college or get federal benefits.

Mr. Biden urged governors to follow his lead for people convicted on state charges of simple possession, who vastly outnumber those charged under federal laws.

Still, the president’s actions — which come about a month before the midterm elections and could help energize Democratic supporters — represent a fundamental change in America’s response to a drug that has been at the center of a clash between culture and policing for more than a half-century.

Continue reading “”

Federal Judge Blocks Latest New York Gun-Carry Restrictions

New York’s attempt to restrict gun carry after its previous law was struck down by the Supreme Court has failed.

Federal district judge Glenn Suddaby issued a temporary restraining order against the state’s enforcement of most provisions in the Concealed Carry Improvement Act (CCIA). He found all of the novel policies restricting gun carry by those with valid permits were unconstitutional under the standard set in New York State Pistol and Rifle Association v. Bruen, though he also upheld some more common regulations.

“Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction,” Suddaby wrote. “And, by doing so, it has further reduced a first-class constitutional right to bear arms in public for self-defense (which, during the 19th and 18th centuries in America, generally came with an assumption that law-abiding responsible citizens were not a danger to themselves or others unless there was specific ground for a contrary finding) into a mere request (which is burdened with a presumption of dangerousness and the need to show ‘good moral character’).”

The ruling represents a further victory for gun-rights advocates who have challenged severe restrictions on gun carry and a further setback for states that have sought to severely limit who can carry a gun and where they can carry it. Judge Suddaby’s decision is also one of the first to apply the Bruen standard to a gun-carry law passed in response to the ruling. It could serve as a guide for other federal courts across the country dealing with challenges to similar laws.

Suddaby ruled the state could not enforce its “good moral character” clause unless there is a preponderance of evidence the applicant is a threat to others with the exception of self-defense. He blocked the requirement that applicants turn over their social media history and information on others who live with them. He also blocked the CCIA’s requirement that applicants meet with permitting officials for an in-person interview,

Mexican official says new lawsuit against US gunmakers is on the way

There’s no reason to believe the outcome will be any different than the first lawsuit that the administration of Andrés Manuel López Obrador brought against U.S. gun makers; a dismissal of the case long before it ever reached trial. Still, with AMLO’s cartel strategy of “hugs, not bullets” resulting in even more cartel violence, it’s no surprise that he and other officials are trying to distract from their own failures by pinning the blame on the US firearms industry.

Foreign Minister Marcelo Ebrard told the Mexican Senate on Wednesday that the government’s next lawsuit will be filed in the border state of Arizona, though he didn’t say whether any gun control groups will be a part of this new effort as they were the first time around.

During his speech on Wednesday, Ebrard referred to a bipartisan package of gun safety measures passed by the U.S. Congress and signed into law by President Joe Biden in June. The law blocks gun sales to those convicted of abusing unmarried intimate partners and cracks down on gun sales to purchasers convicted of domestic violence.

“Illicit arms trafficking is already a crime in the United States,” Ebrard said.

“You have to start establishing criminal responsibilities because the companies that are selling these weapons in these counties (in Arizona), which are very few, of course they know where those weapons are going,” he added, but did not specify which companies he was referring to.

Ebrard makes it sound as if there are no laws whatsoever governing gun sales from licensed firearms retailers, even though border state gun dealers not only have to follow the long list of federal regulations surrounding firearm transfers, but even have special requirements placed on them like reporting multiple sales of modern sporting rifles to the ATF.

Frankly, if he really wants to talk about establishing criminal responsibilities, I’d say he should start much closer to home and crack down on the graft, corruption, and theft within the Mexican armed forces.

Continue reading “”

Well, she was unable to define what a woman was either, so her gobbletygook here shouldn’t have been a surprise.

KBJ’s Jumbled Musings on the Fourteenth Amendment

In today’s [Oct 3rd ] oral argument in Merrill v. Milligan, Justice Jackson capped her very long questioning of Alabama solicitor general Edmund LaCour with a speech/question that went on for around four minutes and that runs a full three pages (57:2-60:2) in the transcript. In her speech, Jackson states that the Framers of the 14th Amendment adopted it “in a race conscious way,” as they were “trying to ensure that people who had been discriminated against, the freedmen in — during the reconstructive — reconstruction period were actually brought equal to everyone else in the society.” As she puts it, the Civil Rights Act of 1866 “specifically stated that citizens would have the same civil rights as enjoyed by white citizens,” and the Fourteenth Amendment was designed to ensure that the Act had a solid “constitutional foundation.”

Somehow Jackson leaps from these propositions to the assertion that the 14th Amendment doesn’t embody “a race-neutral or race-blind idea in terms of the remedy” for discrimination against freed slaves.

I don’t understand her leap. By her own account, the very purpose of the Civil Rights Act of 1866 was “to make sure that the other citizens, the black citizens, would have the same [civil rights] as the white citizens.” It was designed to remedy a situation in which “people, based on their race, were being treated unequally” by the states. And the 14th Amendment had the same goal.

The proposition that the 14th Amendment requires that the government be color-blind is open to challenge both as to what exactly that means and to whether that meaning is well founded. But Jackson seems to think that the color-blind position is somehow at odds with the fact that the 14th Amendment was designed to ensure equal treatment—when that of course is exactly what advocates of the color-blind position maintain the 14th Amendment requires.

Jackson seems to confuse herself with her own terms. Yes, of course, the Framers can be said to have adopted the 14th Amendment “in a race conscious way”—if that means that the central purpose of the 14th Amendment was to ensure that freed slaves received equal treatment in fundamental ways. By its plain text, the 14th Amendment ensures that states shall not “abridge the privileges or immunities” of citizens, irrespective of their race; shall not “deprive any person of life, liberty, or property, without due process of law,” irrespective of the person’s race; and shall not deny any person the “equal protection of the laws,” irrespective of the person’s race.

But how is this elementary recognition at all at odds with the color-blind position? In his great dissent in Plessy v. Ferguson (1896), the first Justice Harlan celebrates that the post-Civil War Amendments “removed the race line from our governmental systems.” In his very next sentence, he states that these amendments had “a common purpose, namely, to secure to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the [white] race enjoy.” (Internal quote omitted.) He of course goes on to characterize the amended Constitution as “color-blind.” On what conceivable basis are we to think that there is any tension among Harlan’s statements?

Insofar as Jackson might be arguing that the 14th Amendment allows race-conscious remedies, she doesn’t touch on the critical questions of what counts as a race-conscious remedy and when such a remedy is permissible. Some scholars cite the Freedmen’s Bureau Acts as evidence that the Equal Protection Clause does not require colorblindness. But as law professor Michael Rappaport points out in “Originalism and the Colorblind Constitution,” even apart from the question whether those Acts inform the meaning of the 14th Amendment, they gave benefits to freedmen and refugees (most of whom were white) not on the basis of race but on the basis of the oppression and hardship they were enduring. Further, Justice Scalia and Justice Thomas—leading proponents of colorblindness—agree that states can act to provide benefits to blacks (or persons of other races and ethnicities) when they have been victims of discrimination.

The usual suspects are going gaga over Justice Jackson’s remarks. But neither they nor she appear to understand the position they think they are contesting.

The ‘Bump Stock’ Decision That Should Have Been But Wasn’t

Imagine this. An automobile manufacturer adds a turbocharger to the engine of a passenger car as a way to increase the vehicle’s acceleration. Nanny State bureaucrats at the National Highway Traffic Safety Administration decide that the turbocharger makes a vehicle to which it is attached go too fast, which renders it “unsafe.” The agency decides that the simplest way to address its concern is to include within the definition of an “automobile” a “turbocharger,” which the agency then can outlaw as an “unsafe motor vehicle.”

“Nonsense,” you say – a car “part” is not a “car,” right? Correct, yet that is precisely what the United States Department of Justice did in 2018 when it deemed by regulatory re-write, that an accessory that could be attached to a rifle to make it fire faster – a “bump stock” – was in fact and by law, a “machine gun” and therefore unlawful to be owned or possessed by individuals.

Thus, by regulatory fiat a piece of plastic, which is all a bump stock is, becomes a “machine gun” for purposes of federal law.

Despite the absurdity of this regulatory maneuver, the Supreme Court on Monday once again declined to hear arguments in cases challenging the constitutionality of the government’s bump stock redefinition.

The Court should have heard arguments in the case, to enable a majority of justices a way to declare such regulatory legerdemain is a constitutionally impermissible exercise of legislative power by the Executive Branch (aside from it being an example of absurd legal reasoning that no president should get away with).

While gun control advocates, including the Biden administration which had urged the Court not to hear the cases, characterize the issue as a “Second Amendment” case, it truly is not. At its core, the legal issues center on regulatory law, not Second Amendment law, and the repercussions extend far beyond firearms.

Like many of Uncle Sam’s bad decisions in recent decades, this one outlawing bump stocks was a knee-jerk reaction to a specific incident – the 2017 mass shooting by a crazed gunman from a hotel window in Las Vegas, Nevada. A number of bump stock-modified rifles were found in the murderer’s hotel room after police breached his barricaded door.

The publicity surrounding the Las Vegas shooting led to calls to change the law and ban the theretofore little-known, but legal, firearm accessory. Congress could not make a decision, so the responsibility fell to President Trump to show the American people he was “doing something.” That “something” was to order his then-Attorney General, Jeff Sessions, to take executive action against the devices.

It eventually fell to Sessions’ successor, Acting Attorney General Matthew Whitaker, in late 2018 to actually amend the long-standing definition of a machine gun so as to include a bump stock within its terms. It is this presidential action – changing federal law by the “stroke of a [regulatory] pen” – that has set a dangerous precedent that should concern liberals and conservatives.

Allowed to stand, this precedent permits extensive presidential mischief that can be wrought by Republican and Democrat administrations alike, targeting all manner of activities and products regulated by the federal government, without having to go through the often messy and time-consuming congressional legislative process.

Thanks to this Trump-proposed regulatory maneuver, virtually any federal regulation – including those involving such wide-ranging issues as the environment, health care, banking, firearms, and even abortion, among hundreds more – can serve as the vehicle for a president to unilaterally enact substantive changes to federal laws.

Regardless of why the Supreme Court declined to accept this challenge to what is by every reasoned analysis an abuse of Executive Branch regulatory power, Big Government advocates will be left extremely happy by the decision. It leaves wide open a side door by which this and future administrations can run roughshod over the system of checks and balances so carefully crafted by our Founders, but which has been so often undermined by successive administrations of both major parties.