Category: Courts

If you can’t clearly define a federal power, then it should not exist until you can. One of the bedrock principles of our constitution is supposed to be that federal powers are limited and defined. If you can’t limit it and define it, it’s not a federal power. -Glenn Reynolds

The Sackett Oral Argument and the Problem of Defining “Waters of the United States”
The justices wrestled with the problem of identifying a clear, coherent, and administrable definition to constrain federal regulatory jurisdiction under the Clean Water Act.

Yesterday the Supreme Court opened October Term 2022 with oral argument in Sackett v. Environmental Protection Agency, a case in which the Court is asked (once again) to clarify the scope of federal regulatory authority over wetlands under the Clean Water Act (CWA).  In previous posts I discussed the issues in the case, the cert grant, and the decision below.

If oral argument was any indication, the justices recognize the need for greater regulatory certainty, but also recognize the difficulty in drawing a clear line to demarcate where “waters of the United States” end and non-federal waters or lands begin. Much of the argument focused on precisely this question, causing the justices to explore the meaning of the word “adjacent,” as the Court previously upheld the EPA and Army Corps’ authority over wetlands adjacent to navigable waters in United States v. Riverside Bayview Homes, perhaps the high-water mark of Court acquiescence to broad assertions of federal regulatory power under the CWA. Accordingly, the justices considered whether “adjacent wetlands” must be physically connected to navigable waters, must be neighboring to such waters, or must merely be nearby, and most seemed unconvinced with the answers they received from the advocates.

Continue reading “”

Supreme Court vacates controversial Massachusetts gun control law
The Massachusetts gun control law places strict restrictions on the ability to purchase and possess handguns

The Supreme Court ordered a lower court ruling on a Massachusetts gun control law to be vacated and directed a lower court to reconsider the case.

The case in question, Morin v. Lyver, centers around a controversial Massachusetts law that imposes strict restrictions on the possession and purchase of handguns, including the need for a license in order to purchase or possess a pistol. The law also includes a lifetime ban on purchasing handguns on anyone convicted of a nonviolent misdemeanor involving the possession or use of guns.

The U.S. District Court of Massachusetts originally found the law constitutional, but the Supreme Court on Monday ordered that ruling vacated and the case “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.”

The case, a 6-3 ruling earlier this year, struck down a New York law that required people to demonstrate “proper cause” to obtain a concealed handgun permit.

“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,’” Justice Clarence Thomas wrote for the majority at the time. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

The case was considered a landmark ruling by the court, opening up the potential for new challenges to state and local restrictions on guns.

Monday’s order to vacate the lower court ruling and have the case reheard was unsigned by the justices, and there were no dissents.

The Supreme Court began its new term Monday and is expected to make decisions on key cases surrounding voting rights, affirmative action and religious freedom.

NSSF STATEMENT ON COURT’S DISMISSAL OF MEXICO’S LAWSUIT AGAINST U.S. FIREARM MANUFACTURERS

NSSF is pleased the court dismissed Mexico’s misguided and baseless lawsuit against members of the firearm industry that sought to blame them for Mexico’s unwillingness and inability to bring Mexican drug cartels to justice in Mexican courtrooms. The court correctly dismissed the case by properly applying the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA) that bars lawsuits against firearm manufacturers and sellers for the criminal misuse by remote third parties, here Mexican cartels, of lawfully sold firearms. Like the court, we sympathize with the plight of the Mexican people and the criminal violence involving illegal firearms they have endured. However, the crime that is devastating the people of Mexico is not the fault of members of the firearm industry, that under U.S. law, can only sell their lawful products to Americans exercising their Second Amendment rights after passing a background check.

The court also held firearm advertisements, which is commercial speech protected by the First Amendment, but that gun control advocates, like Mexico’s lawyers from the Brady Center, may dislike and find distasteful, are not “false, misleading or deceptive” nor are they “unlawful or immoral, unethical, oppressive or unscrupulous,” as alleged by Mexico.

Despite Mexico’s failed lawsuit, NSSF will continue to cooperate with law enforcement to prevent the criminal acquisition of firearms including our two-decade anti-straw purchasing campaign with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) entitled Don’t Lie for the Other Guy®.  Last Month, at the request of ATF, NSSF relaunched the program in the greater Phoenix area.  NSSF is also actively advocating that Congress provide the Department of Homeland Security with more resources to interdict firearms being illegally smuggled to Mexico from the United States.

ATF Posts Open Letter on New Definition of Firearm ‘Final Rule’

U.S.A. –-(AmmoLand.com)-– On September 27, 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to all Federal Firearms Licensees.  The letter is available online.

The letter is seven pages long and includes several images.  The purpose of the letter is explained in the first paragraph. From the atf.gov:

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is issuing this open letter to further assist the firearms industry and the public in understanding whether a “partially complete, disassembled, or nonfunctional” receiver of an AR-15/M-16 variant weapon has reached a stage of manufacture such that it “may readily be completed, assembled, restored, or otherwise converted” to a functional receiver, and is therefore classified as a “frame or receiver” or “firearm” in accordance with the final rule titled “Definition of ‘Frame or Receiver’ and Identification of Firearms (Final Rule 2021R-05F), which became effective August 24, 2022. In particular, the following addresses items that are clearly identifiable as an unfinished component part of a weapon—specifically, partially complete, disassembled, or nonfunctional AR-type receivers (also known as receiver ‘billets’ or ‘blanks’).

The “Final Rule” is being contested in the courts. In North Dakota, Judge Peter D. Welte accepted the ATF definition of a firearm in the Final Rule, at least in his refusal to issue a temporary injunction against the implementation of the rule. The rule might still be found to be unlawful in the court case.

In the Northern District of Texas, Judge Reed O’Conner found the ATF exceeded its authority, and issued a limited injunction against implementation of the rule.  From the opinion:

1.The Final Rule exceeds ATF’s statutory authority under the plain language of the Gun Control Act.

The Administrative Procedure Act requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … in excess of statutory jurisdiction, authority, or limitations.”5 U.S.C. §706(2)(C). Plaintiffs argue the Final Rule exceeds ATF’s statutory authority under the Gun Control Act in two ways. First, Plaintiffs argue that the Final Rule expands ATF’s authority over parts that may be “readily converted” into frames or receivers, when Congress limited ATF’s authority to “frames or receivers” as such. Second, Plaintiffs argue that the Final Rule unlawfully treats weapon parts kits as firearms. Plaintiffs are likely to succeed on both claims.

The letter by ATF explaining the Final Rule does not mention the ongoing court cases.  It reiterates ATF’s position that association with tools and jigs, instructions or guides, can make a non-firearm into a firearm.

From page 3 of the letter:

Thus, in order not to be considered “readily” completed to function, ATF has determined that a partially complete AR-type receiver must have no indexing or machining of any kind performed in the area of the trigger/hammer (fire control) cavity. A partially complete AR-type receiver with no indexing or machining of any kind performed in the area of the fire control cavity is not classified as a “receiver,” or “firearm,” if not sold, distributed, or marketed with any associated templates, jigs, molds, equipment, tools, instructions, or guides, such as within a receiver parts kit.

On page 6, the ATF emphasizes that information and tools which make the creation of a frame or receiver easier, are now considered items which make an incomplete part a firearm:

However, the above analysis only applies to partially complete, disassembled, or nonfunctional frames or receivers without any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials. Pursuant to Final Rule 2021R-05F, partially complete, disassembled, or nonfunctional frames or receivers that are sold, distributed, possessed with such items (or made available by the seller or distributor to the same person) may change the analysis, including those distributed as frame or receiver parts kits. 27 CFR 478.12(c). For example, jigs, templates, or instructions can provide the same indexing as if it were placed directly on the unfinished frame or receiver.

At the end of the letter, the ATF adds further warnings about how unfinished frames or receivers are considered “defense articles”, and subject to permits for export or import. From page 7:

Further, although unfinished frames or receivers that do not meet the definition of a “firearm” are not subject to regulation under GCA provisions, they are still considered “defense articles” on the U.S. Munitions Import List and, therefore, require an approved Application and Permit for Importation of Firearms, Ammunition and Implements of War (ATF Form 6) for importation into the United States under 27 CFR 447.41; 447.22, and are also subject to export controls.1

In the old Soviet Union, typewriters had serial numbers and were tightly controlled by the state. Information was tightly controlled.  In the United States, the distribution of information is protected by the First Amendment.

The ATF is asserting that tools and information on how to make frames or receivers are, essentially frames and receivers. This is an unprecedented expansion of government control over the private making of firearms, never before existing in the United States.

The injunction by Judge O’Conner

Judge O’Conner sees the major expansion of power by the government. He believes the ATF does not have the authority to do so.

SCOTUS turns away challenges to Trump-imposed ban on bump stocks

The Trump administration-imposed ban on bump stocks, crafted through ATF regulations instead of actual legislation, will remain in effect for the foreseeable future after the Supreme Court turned away two challenges to the ban that had been winding their way through the courts since shortly after the ban was imposed in 2019.

The Court declined to intervene to stop the administrative action from taking effect several years ago, but Second Amendment activists and gun rights groups continued to challenge the ban in the years since, and last week justices took up the two cases in conference. Monday’s order list didn’t contain the good news that 2A advocates were hoping for. Instead, the Court rejected the challenges without dissent from any of the six justices who voted earlier this year to overturn New York’s “may issue” carry laws in NYSRPA v. Bruen.

The bump stocks challenge, however, did not deal directly with the scope of the right to bear arms under the Second Amendment. The challengers instead said the government did not have authority to ban bump stocks under the National Firearms Act, a law enacted in 1934 to regulate machine guns. In 1968, the Gun Control Act expanded the definition of machine gun to include accessories “for use in converting a weapon” into a machine gun, and the ATF concluded when it issued the ban that bump stocks meet that definition.

The groups challenging the ban said the legal definition of machine gun has been distorted beyond recognition and argue that courts should not defer to the federal agency’s interpretation.

The court turned away two related appeals, one brought by Clark Aposhian, a Utah gun lobbyist who had purchased a bump stock before the ban took effect, and another led by Gun Owners of America and other gun rights groups. Lower courts upheld the ban, although judges on the Denver-based 10th U.S. Circuit Court of Appeals and the Cincinnati-based 6th U.S. Circuit Court of Appeals were divided in both cases.

To say this is a disappointing result would be putting it mildly, and there most certainly will be consequences to the justices’ refusal to hear either case. The Biden administration has already used the same executive authority that then-President Trump used to direct the ATF to craft its bump stock ban to target unfinished frames and receivers sold in DIY gun-making kits, and the Court’s inaction will only embolden anti-gun officials and the gun control lobby to further abuse the scope of executive branch authority to impose even more gun control laws that don’t have enough support to win congressional approval.

The decision is also very bad news for the hundreds of thousands of Americans who lawfully purchased bump stocks before the ATF suddenly reversed course and declared them to be machine guns. Possession of a bump stock is now the same as possessing a machine gun in terms of federal law, which makes any gun owner who still owns one of the devices subject to a $250,000 fine and the possibility of up to a decade in federal prison.

While the Supreme Court will have other opportunities to weigh in on executive branch overreach that infringe on the right to keep and bear arms, unfortunately that’s because there are other areas of infringement taking place. Not only are the ATF’s new rules on frames and receivers being challenged in court, but the pending rules that could turn millions of AR-style pistols equipped with shoulder braces into short-barreled rifles subject to the registration provisions of the National Firearms Act are also facing litigation. Still, the gun control lobby and the Biden administration are almost certain to take advantage of today’s inaction by SCOTUS, and with gun control groups already lobbying behind the scenes for the ATF to regulate AR-15s and other semi-automatic firearms as if they’re machine guns as well, the ATF could soon take aim at the tens of millions of modern sporting rifles in the hands of gun owners… not to mention the lives and liberties of those gun owners themselves.

Federal Court says ATF Overstepped Authority with “Final Rule”

U.S.A. –-(AmmoLand.com)-– On September 2, 2022, the United States District Court, Northern District of Texas, Fort Worth Division, issued an Opinion and Order granting a preliminary injunction, in part, on the ATF “Final Rule” which radically changed the decades-long definition of what is a firearm in federal law.  The opinion explains that ATF created the longstanding definition of what a firearm is in 1978. Now, over forty years later, they are updating and expanding the definition into new areas.  From the opinion/order, p. 2-4:

In April 2022, ATF published a Final Rule changing, among other things,the 1978 definition of “frame or receiver.”See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022)(codified at 27 C.F.R. pts.447, 478, and 479(2022)).1ATF split the phrase intotwo parts, assigning the term “frame” to handguns and the term “receiver” to any firearm other than a handgun, such as rifles and shotguns. See 27 C.F.R. §478.12(a)(1), (a)(2). ATF then defined the terms “frame” and “receiver” along the same lines as the 1978 rule, though with updated, more precise technical terminology.2 But ATF did not stop there. 

Rather than merely updating the terminology,ATF decided to regulate partial frames and receivers. Under the new Final Rule, “[t]he terms ‘frame’and ‘receiver’shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver. ”Id.§478.12(c). But “[t]he terms shall not include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material).” Id. When determining whether an object is a frame or receiver, the ATF Director is not limited to looking only at the object. “When issuing a classification, the Director may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit ….” Id. 

The Final Rule also amends ATF’s definition of “firearm”to include weapon parts kits.The ATF’s new definition of “firearm,”“shall include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.”Id.§478.11(definition of “firearm”).

The Court found ATF exceeded its authority. From the opinion/order, p. 6:

1. The Final Rule exceeds ATF’s statutory authority under the plain language of the Gun Control Act. 

The Administrative Procedure Act requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … in excess of statutory jurisdiction, authority, or limitations.”5 U.S.C. §706(2)(C). Plaintiffs argue the Final Rule exceeds ATF’s statutory authority under the Gun Control Act in two ways. First, Plaintiffs argue that the Final Rule expands ATF’s authority over parts that may be “readily converted” into frames or receivers, when Congress limited ATF’s authority to “frames or receivers” as such.Second, Plaintiffs argue that the Final Rule unlawfully treats weapon parts kits as firearms.Plaintiffs are likely to succeed on both claims.

On September 23, 2022, Blackhawk Manufacturing Group, doing business as 80 Percent Arms, filed a motion to intervene (to be included in the lawsuit). The motion is under consideration. The court has ordered the ATF to reply by October 7, 2022.

On September 26, 2022, the court denied the government’s motion for clarification, where the ATF wanted to complete a classification of one of the plaintiff’s products. The Court ruled to do so would be in contravention of the injunction it placed in effect on September 2, 2022.

Texas is in the Fifth Circuit Court of Appeals. Another Court in Texas refused to issue a preliminary injunction.

In North Dakota, in the  8th Circuit Court of Appeals, Judge Peter D. Welte refused to grant a preliminary injunction in another case challenging the ATF “Final Rule”.

A major contention is the wording of the 1968 Gun Control Act, which clearly differentiates weapons that “may be readily converted” and receivers, which does not include the “may be readily converted” language.

In addition, the inclusion of information, tooling, and jigs as part of what is defined as a firearm is new and a considerable expansion of governmental power.

In Delaware, Judge Maryellen Noreika has ruled the ability to make and possess homemade guns is protected by the Second Amendment.

The Supreme Court may eventually take a case on what power, if any, the ATF may legitimately have to regulate the private, non-commercial making of or sale of firearms, and what may be defined as a “firearm”.  The court action may take years.

SAF Sues to Block Connecticut’s ‘Assault Weapons’ Ban

From the Second Amendment Foundation . . .

The Second Amendment Foundation today filed suit in federal district court, challenging the ban on so-called “assault weapons” in Connecticut, and asking for declaratory and injunctive relief.

SAF is joined by the Connecticut Citizens Defense League and three private citizens, Eddie Grant, Jr., Jennifer Hamilton, and Michael Stiefel. Named as defendants are Connecticut Gov. Ned Lamont, plus James Rovella, commissioner of the state’s Department of Emergency Services and Public Protection; Chief State’s Attorney Patrick Griffin and several other officials. Plaintiffs are represented by attorneys Doug Dubitsky of North Windham, Conn., Craig C. Fishbein of Wallingford, Conn., and Cameron L. Atkinson of New Haven.

The lawsuit was filed in U.S. District Court for the District of Connecticut. 

Connecticut’s ban on so-called “assault weapons” dates back to 1993. The state criminalizes the possession, sale or transfer of such firearms—about 160 guns named in four subsections—even though many of these guns are in common use across the country. 

“The ban was previously upheld, but that was before the Supreme Court handed down its Bruen ruling earlier this year,” said SAF founder and Executive Vice President Alan M. Gottlieb. “That landmark decision eliminated the ‘two-part test’ which included an interest-balancing provision that didn’t pass constitutional muster.”

According to the lawsuit, the current ban deprives “responsible citizens of their Second Amendment rights under the guise of providing a panacea for social problems that Connecticut remains unable to solve.” 

Gottlieb said there is no historical foundation for such a ban, and the complaint actually details the historical development of firearms including repeating rifles developed and manufactured in Connecticut and elsewhere. The lawsuit also mentions incidents in which modern semiautomatic rifles were used by private citizens to stop violent crimes.

Thread reader

Rob Romano

The lawsuit complains about an advertisement for a handguard:

Families of three Uvalde shooting survivors sue school district, gun makers, city officials and others

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“brazen and provocative marketing”Image
The lawsuit says that AR-15s “are unsuited for home defense, recreation, or casual use and possession.”Image
The lawsuit says the gun store should have known one of its customers would be a mass shooter because they were “always alone and quiet”:Image
According to the lawsuit, Daniel Defense’s guns are weapons of war, but their advertisements are misleading because they use military imageryImage
The lawsuit says that “AR-15 style rifles, rapid-fire trigger systems, and high-capacity magazines are used by most often by young adults in mass shootings.”Image
The lawsuit says that “AR-15 style rifles destroy human bodies, limbs, organs, and tissue, pulverize the human body, explode, and cause immediate death.”Image

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Analysis: Federal Judge Charts Path to Upholding Felon Gun Bans

We now have a new framework for how the federal prohibition on felons owning guns could be constitutional.

District Judge David Counts of Western Texas upheld the conviction ban this week. That’s despite the fact that he struck down the federal ban on people indicted for felonies receiving firearms just a few days beforehand. And he did it under the Supreme Court’s Bruen standard, making him among the first to apply it to federal law.

His logic will sound familiar to anyone who followed his opinion in the indictment case. After calling into question the constitutionality of the indictment ban under Bruen’s text-and-tradition standard, he did the same for the conviction ban.

“Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn’t clearly ‘longstanding,’” Counts said in that ruling, dismissing a claim made in the Supreme Court’s landmark Heller decision.

However, he also outlined how he believed the conviction ban could be constitutional under the Bruen test even without a historical gun law as an analogue. Instead of relying on gun laws, Counts argued, it is better to look at how groups have been excluded from the political rights afforded to “the people.” Those historical examples provide a better guide, he said.

And now, just a few days after laying out his hypothetical test for the convicted felon prohibition, he has applied it in practice. He relied on the fact that governments in the early days of the republic prohibited people from voting if they had been convicted of certain crimes and those inciting people to violence could be prohibited from assembling in public.

“Indeed, there was a ‘longstanding’ historical tradition from the time of ratification that those convicted of a crime could be excluded from the right to vote,” Counts wrote. “For example, one year after the Second Amendment’s ratification, Kentucky’s Constitution stated, ‘[l]aws shall be made to exclude from… suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors.’ Vermont’s Constitution followed one year later, authorizing the removal of voting rights from those engaged in bribery or corruption during elections. As of 2022, only two states and the District of Columbia do not restrict felons’ voting rights.”

This framework is similar in some respects to one used by Justice Amy Coney Barrett in Kanter v. Barr. Barrett argued in her dissent that those convicted of felonies could be prohibited from owning guns (though only if they committed violent felonies) because there was a tradition of barring dangerous groups from gun ownership as evidenced by early republic bans on Native Americans and Catholics owning guns. New York has sought to use the same argument to defend its gun laws in court.

Of course, the main problem with the Barrett approach is it relies exclusively on bigoted gun bans and attempts to generalize and sterilize them as applying to those early Americans considered “dangerous.” But it is highly questionable why the bans presented as evidence for this theory only fell along racial and religious lines. It seems dangerousness was playing a secondary role in those particular bans.

The Counts approach is not as susceptible to that pitfall. Clearly blacks, other minorities, and women were also excluded from protections afforded to “the people” in the founding era. Certainly, they were denied the right to vote in nearly all circumstances, and blacks in particular were denied all of their rights.

In fact, people in the founding era were as likely to be excluded from protections afforded to “the people” as they were to be included in them. So, relying on that approach for justifying modern gun bans has the potential to result in a fairly broad reading of what’s permissible under the Second Amendment.

Still, the Counts approach does at least provide some examples of longstanding rights restrictions that are based on a person’s criminal actions rather than their race or creed. So, it has a bit more to stand on.

Although, there are other weaknesses too. The number of crimes covered under modern felony laws dwarfs the number in the founding era. While the analogue of felons being prohibited from voting seems to fit fairly well with felons being barred from owning guns, the ban on inciting speech isn’t really the same since it isn’t a permanent ban on protesting for the offender.

It’s likely federal courts will refine the Counts approach if they do adopt it as a framework moving forward. His framework isn’t without its problems, and it’s among the first attempt at reconciling federal gun prohibitions with the Bruen standard. But it has the potential to become very influential among Counts’ piers moving forward.

Trial Date Set for Washington’s Ban on High-Capacity Gun Magazine Sales

A federal judge in Seattle has scheduled a trial to start more than a year from now regarding the legal challenge to Washington state’s new restrictions on high-capacity gun magazines.

Judge David Estudillo of the U.S. District Court for the Western District of Washington set Dec. 4, 2023, as the opening day for what is scheduled as an eight-day bench trial regarding the Second Amendment Foundation’s lawsuit against the state’s ban on sales of new large-capacity magazines for handguns and rifles.

The law, which took effect on July 1, prohibits the sale of gun magazines with a capacity of more than 10 rounds, along with the manufacturing, distribution or import of such magazines in Washington.

Any high-capacity magazines owned as of July 1, 2022, are unaffected by the law.

“We’re asking the court to declare Washington’s ban on original capacity magazines to be unconstitutional under the Second and Fourteenth amendments,” Alan M. Gottlieb, founder and executive vice president of the Bellevue-based SAF, said at the time the lawsuit was filed.  “We want an injunction against the state because this ban criminalizes something that is common in a majority of states, and also leaves law-abiding Washington citizens more vulnerable to attack by ruthless criminals.”

The Second Amendment to the U.S. Constitution protects the right to keep and bear arms, while the Fourteenth Amendment, in part, reads “nor shall any State deprive any person of life, liberty, or property, without due process.”

The complaint alleges the law will negatively impact Washingtonians’ self-defense options.

“The State of Washington has criminalized one of the most common and important means by which its citizens can exercise their fundamental right of self-defense,” the lawsuit reads. “By banning manufacturing, importation, distribution, and sale of standard-capacity firearm magazines that can carry more than 10 rounds of ammunition (‘standard capacity magazines’), the State has barred law-abiding residents from legally acquiring common ammunition magazines and deprived them of an effective means of self-defense.”

Washington State Attorney General Bob Ferguson has publicly promised to “vigorously defend” the law.

Scheduling the trial more than a year out could be influenced by the U.S. Supreme Court’s June ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, in which the majority held that Americans have the constitutional right to carry firearms.

That ruling has opened the door for another look at cases against high-capacity magazine bans that previously failed in lower courts.

The nation’s highest court vacated a ruling in a San Diego case that upheld California’s ban on magazines holding more than 10 bullets, sending it back to the lower court to reconsider following its Bruen decision.

The court also booted a case challenging New Jersey’s ban on high-capacity magazines back to a lower court for review in light of Bruen.

That means either case could end up being decided before Washington’s case, known as Sullivan v. Ferguson, goes to trial.

According to the schedule, discovery must be completed by next July 10, all motions for dismissal must be filed by next Aug. 7, and a pretrial conference will be held on Nov. 20, 2023.

GOA IMMEDIATELY SUES PHILADELPHIA OVER UNCONSTITUTIONAL EXECUTIVE ORDER

FOR IMMEDIATE RELEASE

September 28, 2022

Philadelphia, PA – Yesterday, lame-duck Mayor Jim Kenney signed an executive order prohibiting individuals from lawful carry at all City of Philadelphia recreational facilities. The mayor’s actions are in clear violation of Pennsylvania law prohibiting these types of local gun restrictions. Within hours of Mayor Kenney’s signing ceremony, Gun Owners of America (GOA) filed a lawsuit to enjoin enforcement of this illegal gun regulation.

“Mayor Kenney knows this executive order is pointless: law abiding gun owners aren’t the people committing the violent crime and murder in Philadelphia,”  said Dr. Val Finnell, Pennsylvania Director for GOA. “Instead, Mayor Kenney is trying to deflect attention from his failing policies and failing City by enacting more ‘feel good’ regulations that scapegoat guns for the crisis of crime in Philadelphia. Rather than take responsibility for city policies that created two years of record homicides, Kenney is attempting to capitalize on the tragic deaths of Philadelphia residents to disarm more people and create more victim-only, ‘gun-free’ zones. All this executive order does is put a bullseye on the back of every person at Philadelphia recreational facilities, because they know that Mayor Kenney won’t let you defend yourself there.”

“The lack of respect for taxpayer money is appalling,” said Andrew Austin, attorney for GOA and the plaintiffs in this lawsuit. “Pennsylvania law is clear here: Philly is not allowed to make gun regulations. Every appellate court in Pennsylvania has made this clear multiple times. Yet, they continue to waste taxpayer money by attempting to enact these illegal laws.”

Gun Owners of America will be seeking to enjoin enforcement of Mayor Kenney’s Executive Order in the Philadelphia Court of Common Pleas. In addition, GOA has previously filed several other lawsuits in Philadelphia in the last two years in pursuit of Second Amendment rights, and will continue to fight as long as necessary to ensure every citizen has the ability to defend themselves, particularly in lawless cities such as Mayor Kenney’s Philadelphia.

Dr. Val Finnell, or another GOA spokesperson is available for interviews. Gun Owners of America is a nonprofit grassroots lobbying organization dedicated to protecting the right to keep and bear arms without compromise. GOA represents over two million members and activists. For more information, visit GOA’s Press Center.

-GOA-

Well, I  read it that way too, so………

Judge Issues Time Limits for Briefs in California Magazine Ban Case

U.S.A. –-(AmmoLand.com)-– Judge Benitez found California’s ban on magazines that hold more than 10 rounds of ammunition to be unconstitutional on its face. On March 29, 2017, Judge Benitez issued an injunction preventing the enforcement of the ban. In the week that followed, hundreds of thousands, perhaps millions, of magazines were sold to California residents who had been deprived of their Second Amendment rights.

The week of March 29, 2017, to April 5, 2017, has become known as Freedom week.

The name of the case changed as the name of the California AG changed.

Subsequent court actions reversed the injunction, upheld Judge Benitez’s opinion, reversed the three-judge panel with an en banc hearing, and appealed the en banc hearing to the Supreme Court. On June 22, 2022, the Supreme Court issued its decision on the Bruen case. On June 29, the Supreme Court vacated the decision by the Ninth Circuit en banc on Duncan v. Bonta and sent it back to the Ninth Circuit to be re-decided.

The Ninth Circuit sent the case back to Judge Rodger T. Benitez. Judge Benitez is now following proper procedure. He is not allowing delays. On September 26, 2022, Judge Roger T. Benitez of the District Court for the Southern District of California issued an order as to the timing for briefs on the now Duncan v. Bonta case.

From the District Court for the Southern District of California, Judge Roger T. Benitez:

On June 29, 2017, this Court preliminarily enjoined enforcement of California Penal Code § 32310 (c) & (d) requiring persons to dispossess themselves of magazines able to hold more than 10 rounds lawfully acquired and possessed. The preliminary injunction was affirmed on appeal. Duncan v. Becerra, Appeal No. 17-56081 (9th Cir. July 17, 2018). On March 29, 2019, on summary judgment, this Court concluded that California Penal Code § 32310 is unconstitutional. On April 4, 2019, this Court made the preliminary injunction on subsections (c) and (d) permanent but stayed, pending appeal, the injunction of § 32310 (a) & (b).

This Court was again affirmed on appeal. Duncan v. Becerra, Appeal No. 19-55376 (9th Cir. Aug. 14, 2020). The Ninth Circuit granted rehearing en banc, vacated its opinion, and entered an opinion reversing the judgment of this Court.Duncan v. Bonta, Appeal No. 19-55376 (9th Cir. Nov. 30, 2021). The United States Supreme Court granted certiorari and vacated the opinion of the Ninth Circuit and remanded for further consideration. Duncan v. Bonta, No. 21-1194, 142 S. Ct. 2895 (June 30, 2022). The Ninth Circuit now remands the case to this Court for further proceedings in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 142 S. Ct. 2111 (2022) and the mandate has issued.

This Court hereby spreads the mandate upon the minutes of this Court. 

The Defendant shall file any additional briefing that is necessary to decide this case in light of Bruen within 45 days of this Order. Plaintiffs shall file any responsive briefing within 21 days thereafter. This Court will then decide the case on the briefs and the prior record or schedule additional hearings.

The previously entered preliminary injunction enjoining enforcement of California Penal Code § 32310 (c) and (d) for magazines able to hold more than ten rounds shall remain in effect for all those who previously acquired and possessed magazines legally (including those persons and business entities who acquired magazines between March 29, 2019 and April 5, 2019), pending further Order of this Court. Dated: September 26, 2022 

The 45 days to file briefs ends on November 10th, by my calculations; the time given for response briefs ends on November 30th.

The Miller v. Bonta case briefs will have been in and responded to about a month earlier, at the end of October.

Miller v. Bonta and Duncan v. Bonta are closely related cases about restoring Second Amendment rights.

FPC Files for Injunction Against New York “Sensitive Location” Handgun Carry Bans

BUFFALO, NY (September 28, 2022) – Firearms Policy Coalition (FPC) announced today that it has filed a motion for preliminary injunction in Boron v. Bruen, its lawsuit challenging New York’s “sensitive location” handgun carry bans in public parks, public transportation, and all private property without express consent. The motion can be viewed at FPCLegal.org.

“Under S51001, ‘ordinary, law-abiding citizens,’ like and including Plaintiffs, are again prevented from carrying handguns in public for self-defense in almost all corners of the State, except in what Governor Hochul said were, ‘probably some streets,’” argues the motion. “S51001 makes a mockery of the Supreme Court’s holding in Bruen, which reaffirmed that personal security extends to more than just ‘those . . . who work in marbled halls, guarded constantly by a vigilant and dedicated police force,’ but also emphatically extends to include ordinary, law-abiding Americans ‘outside the home.’”

“The New York Legislature appears to think that when the Supreme Court closed the door on New York’s may issue permit regime it opened a window for equally onerous location restrictions,” said FPC Director of Legal Operations Bill Sack. “Today’s motion for preliminary injunction is the opportunity for the Court to remind New York lawmakers that those windows are nailed shut by the Constitution.”

Individuals who would like to Join the FPC Grassroots Army and support important pro-rights lawsuits and programs can sign up at JoinFPC.org. Individuals and organizations wanting to support charitable efforts in support of the restoration of Second Amendment and other natural rights can also make a tax-deductible donation to the FPC Action Foundation. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit organization, exists to create a world of maximal human liberty, defend constitutionally protected rights, advance individual liberty, and restore freedom. FPC’s efforts are focused on the Right to Keep and Bear Arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government. The FPC team are next-generation advocates working to achieve the Organization’s strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs.

FPC Law (FPCLaw.org) is the nation’s first and largest public interest legal team focused on the Right to Keep and Bear Arms, and the leader in the Second Amendment litigation and research space.

SAF ASKS COURT TO DECLARE HANDGUN BAN FOR YOUNG ADULTS UNCONSTITUTIONAL

BELLEVUE, WA – The Second Amendment Foundation today filed a complaint in U.S. District Court in West Virginia, challenging the federal prohibition on handgun sales to young adults ages 18-20, and is asking for a declaratory judgment and injunctive relief.

Joining SAF in this legal action are the West Virginia Citizens Defense League and two private citizens, Benjamin Weekley and Steven Brown. Defendants are the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Director Steven Dettelbach and Attorney General Merrick Garland, in their official capacities. The lawsuit was filed in U.S. District Court for the Northern District of West Virginia. The case is known as Brown v. ATF.

Weekley and Brown, both being in the affected age group, were unable to purchase handguns from a West Virginia sporting goods store earlier this year. According to the lawsuit, “The Handgun Ban impermissibly infringes upon the right to keep and bear arms of all law-abiding, peaceable individuals aged eighteen to twenty,” and further asserts the ban “is flatly unconstitutional under the Second Amendment” and Supreme Court opinions in the 2008 Heller case and 2022 Bruen decision.

“There is no historical evidence supporting an arbitrary prohibition on purchase and ownership of handguns for young adults over the age of 18,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Indeed, history goes the other direction, with young adults considered mature enough for militia service, duty in the armed forces and in today’s world being able to vote, run for public office, start businesses, get married, enter into contracts and enjoy the full protections set down in the Fourth, Fifth and Sixth amendments.

“Yet these same young adults are hampered by a politically selected age limit that prohibits them from purchasing handguns from licensed firearms dealers,” he added. “This makes absolutely no sense. This handgun ban for young adults is an unconstitutional infringement of their rights s protected by the Second Amendment.”

About 3 1/2 years ago, Judge Benitez ruled that California’s magazine ban was unconstitutional and enjoined the state from enforcing the ban. That injunction was in effect for about a week before the 9th circuit reversed it.
During that week anyone could  -legally- buy, and retain, magazines that had been previously banned. It was called ‘Freedom Week’.
What this did, in effect, was make possession of all previously banned magazines legal in California since there is really no way for the state to prove someone didn’t buy them during that week
The case, still at the 9th circuit, was remanded back to him last week with the instruction to rehear the case, taking SCOTUS’ Bruen ruling into account.
So the Judge made his original injunction effective again. Heh heh heh heh.

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2nd Amendment Foundation Backs Federal Challenge Of Illinois Transit Weapons Ban

BELLEVUE, WA – -(AmmoLand.com)- The Second Amendment Foundation announced today it is financially supporting a federal lawsuit filed by four Illinois residents who are challenging a ban on licensed concealed carry on Public Transportation under the state’s Firearm Concealed Carry Act.

The plaintiffs in the case are Benjamin Schoenthal, Mark Wroblewski, Joseph Vesel, and Douglas Winston. They are all residents of counties in northern Illinois in the greater Chicago area. They are represented by attorney David Sigale of Wheaton, Ill. The case is known as Schoenthal v. Raoul.

Defendants are Illinois Attorney General Kwame Raoul and State’s Attorneys Rick Amato (DeKalb County), Robert Berlin (DuPage County), Kimberly M. Foxx (Cook County), and Eric Rinehart (Lake County), all in their official capacities.

“We’re financially supporting this case because it is the right thing to do,” said SAF founder and Executive Vice President Alan M. Gottlieb. “All four plaintiffs in this case are law-abiding citizens who cannot exercise their fundamental rights as spelled out by three Supreme Court rulings, including SAF’s 2010 McDonald victory that nullified Chicago’s unconstitutional handgun ban.

“Illinois lawmakers have made it as difficult as possible for honest citizens to exercise their right to bear arms,” he continued, “and the prohibition on licensed carry while traveling via public transportation is a glaring example. This ban is a direct violation of the Second and Fourteenth amendments, and we are delighted to support this case because it cuts to the heart of anti-gun extremism.

“Buses and commuter trains are public places, but they are hardly sensitive places,” Gottlieb observed. “The four plaintiffs in this case rely on public transportation to travel to and from various places, including work, and they should be able to carry firearms for personal protection while in transit. However, current laws, regulations, policies and practices enforced by the defendants have made that legally impossible.

“Illinois is trying to perpetuate an indefensible public disarmament policy despite the clear meaning of Supreme Court rulings,” he concluded, “and we’re going to help the plaintiffs put an end to this nonsense.”

US V. Quiroz – §922 (N) Held Unconstitutional

Jose Gomez Quiroz was indicted in a Texas state court for burglary and later indicted for jumping bail. Both are felonies under Texas state law. While on the lam, Quiroz sought to buy a .22LR pistol from a dealer and answered “no” on the Form 4473 when asked if he was under indictment for a felony. He got a delayed (but not denied) response and subsequently took possession a week later. Then, the NICS System notified the BATFE of Quiroz’s transaction. He was charged with lying on the Form 4473 (18 USC §922(a)(6)) and illegal receipt of a firearm by a person under indictment (18 USC §922(n)). A Federal jury found him guilty on both charges. A week later, Quiroz moved to set aside the conviction under Rule 29 of the Federal Rules of Criminal Procedure and asked the court to reconsider in light of Bruen.

US District Court Judge David Counts of the Western District of Texas issued his decision yesterday and found §922(n) facially unconstitutional. Moreover, since §922(n) was found unconstitutional, Quiroz’s lie on the Form 4473 was immaterial. The US Attorney is already appealing the decision to the Fifth Circuit Court of Appeals.

The media is making a big deal over the fact that Judge Counts was appointed by President Trump. What they fail to say is that Counts was originally nominated for the position by President Barack Obama and that the clock ran out before he could be confirmed by the Senate. Prior to the nomination by President Obama, Counts served as a Magistrate Judge in the Western District and was the State Judge Advocate for the Texas National Guard where he was a Colonel.

The expansion of civil rights has often come in cases with less than desirable defendants. Witness the expansion of rights thanks to Clarence Earl Gideon, a drifter, and Ernesto Miranda, a kidnapper and rapist, whose cases established the right to counsel and the right to a warning against self-incrimination respectively.

Now it is time to examine the decision in detail.

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