Federal District Court grants preliminary injunction on Delaware requiring a serial number on a homemade gun, finding it unconstitutional.
21-1523Category: Courts
Just now, the Ninth Circuit vacated and remanded the lawsuit challenging California’s magazine ban, which means it will now go back to the district court to be heard again….by Judge Benitez!!
The judgment in this case is vacated, Duncan v. Bonta, 142 S. Ct. 2895 (2022), and this case is remanded to the district court for further proceedings consistent with New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ____, 142 S. Ct. 2111 (2022)
19-55376Raising age to buy rifles in Texas won’t prevent mass shootings. There’s an obvious reason why
Before the Uvalde school attacker perpetrated obvious felonies such as capital murder and aggravated assault — before he even pulled the trigger — he had already committed numerous crimes.
Among them was bringing a firearm on school premises, making a menacing public display of the weapon, and trespassing on school property. Some people think there ought to be another law, as if just one more penal provision would have averted the tragedy in Uvalde.
They are demanding that Gov. Greg Abbott call a special session so the Legislature can outlaw the purchase of semiautomatic rifles by adults between the ages of 18 and 20. Reflexively enacting this gun-control measure would be no quick fix for school shootings, however, in no small part because it is patently unconstitutional.
And it would be wrong. Young adults have the same rights as other adults, including the right to self-defense. The Heritage Foundation notes that “Americans use their firearms in self-defense between 500,000 and 3 million times annually.” Though no government agency tracks those incidents and records the ages of those who defended themselves, many are surely younger than 21.
We can’t answer lawlessness with more lawlessness or a disregard for the Constitution. Even the notoriously liberal 9th U.S. Circuit Court of Appeals agrees with that.
This year, the court held that California violated the Second Amendment to the U.S. Constitution when it imposed a blanket ban on the sale of semiautomatic rifles to young adults between the ages of 18 and 20. Holding that such rifles are not “dangerous and unusual weapons,” which would have left them unprotected under Heller, the Ninth Circuit concluded that the age-based ban unconstitutionally deprives young adults of their right to lawful self-defense within the home.
The Second Amendment argument against a young-adult rifle ban has only gotten stronger with the U.S. Supreme Court’s landmark opinion in New York State Rifle and Pistol Association v. Bruen, handed down after the May 24 Uvalde shooting. As Justice Clarence Thomas explained in striking down New York’s scheme to prevent carrying a handgun for self-defense, the days of treating the Second Amendment as a second-class right are over.
Going forward, lower courts will have to scrutinize modern laws for consistency with the constitutional text and history. The court’s decision has already changed the Second Amendment landscape in Texas, according to a respected federal judge in Fort Worth. This past month, Judge Mark Pittman held that the Bruen decision overrules 5th U.S. Circuit Court decisions allowing a young-adult handgun ban.
On this basis, he has issued an injunction against a Texas law that prevents young adults from getting licensed to carry handguns in public. In addition, the Texas Constitution independently guarantees a Texan’s “right to keep and bear arms in the lawful defense of himself.”
A young-adult rifle ban from the Legislature, whether enacted in a special session or in the regular session beginning in January, would not make Texas schools any safer. It would not even go into effect before being enjoined as unconstitutional — on the strength of that Ninth Circuit ruling, which struck down an identical provision.
The heart-wrenching tragedy in Uvalde has generated universal agreement that something must be done to avert a repeat of what happened there. Identifying the villain of Uvalde was easy; calibrating a meaningful response to the attacker’s murderous rampage will be hard.
It will take months of difficult deliberation for the Legislature to understand and address the interrelated problems of gun violence, mental health, school hardening, and law-enforcement failures. But there can be no unconstitutional lawless shortcuts.
Instead of passing a young-adult rifle ban that will immediately fail judicial scrutiny, the Legislature should continue working on bills that will actually make schools safer, without trampling the constitutional rights of law-abiding Texans.
Robert Henneke is the executive director and general counsel at the Texas Public Policy Foundation, a think tank based in Austin.
New York City Man and Alabama Woman Plead Guilty to Attempting to Provide Material Support to ISIS
Today in the Southern District of New York, Arwa Muthana, 30, of Hoover, Alabama, pleaded guilty to attempting to provide material support to the Islamic State of Iraq and al-Sham, aka ISIS, a designated foreign terrorist organization. On Friday, her husband James Bradley, aka Abdullah, 21, of the Bronx, entered a guilty plea to the same charge.
According to court documents, Bradley and Muthana are ISIS supporters who attempted to travel to the Middle East to join and fight for ISIS. Bradley expressed violent extremist views since at least 2019, including his desire to support ISIS by traveling overseas to join the group or committing a terrorist attack in the United States. In May 2020, Bradley stated to an undercover law enforcement officer (UC-1) that he believed that ISIS may be good for Muslims because ISIS was establishing a caliphate. Bradley further expressed his desire to conduct a terrorist attack in the United States and discussed potentially attacking the U.S. Military Academy in West Point, New York. Bradley explained that if he could not leave the United States, he would do “something” in the United States instead, referring to carrying out an attack.
Federal Judge Grants Marines Class Action Status in Challenge to COVID Vaccine Requirement
A federal judge has granted class action status for U.S. Marines in their fight against Secretary of Defense Lloyd Austin’s COVID-19 vaccine mandate. The ruling is another blow to the Biden administration and consistent with other court rulings that have found military branches are violating federal law.
Judge Steven Merryday of the U.S. District Court Middle District of Florida Tampa Division granted a classwide preliminary injunction for Marines serving in active and reserve duty who were denied religious accommodation requests from taking the COVID-19 vaccine.
Merryday preliminarily enjoined the Department of Defense from “enforcing against a member of the class any order, requirement, or rule to accept COVID-19 vaccination, … from separating or discharging from the Marine Corps a member of the class who declines COVID-19 vaccination, and … from retaliating against a member of the class for the member’s asserting statutory rights under RFRA [Religious Freedom Restoration Act].”
Standard practice these days.
If a person is considered too dangerous to possess a weapon, he’s too dangerous to be left out on the street.
DOJ requests appeal after judge rules felony indictment can’t prevent gun purchases
The Justice Department plans to appeal a Texas judge’s ruling that a federal law blocking people under felony indictment from purchasing firearms is unconstitutional in light of the Supreme Court’s latest gun-related ruling.
U.S. District Judge David Counts found that the law’s prohibitions did not correlate with the Supreme Court’s June decision in New York State Rifle & Pistol Association, Inc. v. Bruen, in which the justices voted 6-3 (along conservative-liberal ideological lines) that law-abiding citizens have a right to carry a handgun outside the home for self-defense purposes.
“The Second Amendment is not a ‘second class right,'” Counts wrote. “After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden.”
Counts, an appointee of former President Donald Trump, was tasked with weighing the case of Jose Gomez Quiroz, who was indicted on felony burglary charges related to a June 2020 incident. He allegedly jumped bail, attempted to purchase an automatic gun, and lied on his Bureau of Alcohol, Tobacco, Firearms and Explosives transaction form but was still able to purchase the gun.
Quiroz was later convicted of making a false statement during the purchase of the weapon and illegal receipt of a gun by a person under indictment. He sought to dismiss the verdict because “of the United States Supreme Court’s recent ruling in Bruen,” according to court filings from Sept. 19.
Although Quiroz’s burglary charge is still pending, Counts sided with his position that the high court established a new “standard” in how it views Second Amendment rights.
“No longer can courts balance away a constitutional right,” Counts wrote.
Counts also voiced his doubt that a felony indictment should prevent someone from owning a firearm.
“The nature of grand jury proceedings is one such area that casts a shadow of constitutional doubt on” someone making a false statement on a firearm form, Counts wrote. “Some feel that a grand jury could indict a burrito if asked to do so.”
In a subsequent filing, the DOJ requested an appeal of Counts’s ruling in the U.S. Court of Appeals for the Fifth Circuit.
DC says no right to carry on public transportation
In the complaint, the four plaintiffs (all of whom already possess a valid carry license in Washington, D.C.) acknowledge that D.C. has the authority to “regulate consistent with the nation’s historical tradition of firearms regulation the manner of carrying arms, including handguns, and may prohibit certain arms in narrowly defined sensitive places,” but argues that the blanket ban on lawful concealed carry on public transport isn’t narrowly defined or confined to a truly “sensitive place”.
… Even if the public transportation vehicles in question could be labeled “sensitive places”, the lawsuit argues that the ban has severe implications on the right of self-defense for those who have no other means of transportation and is a “substantial infringement” on their Second Amendment rights, with the practical effect of disarming all Metro riders “for the entirety of their journey.”
Now Washington, D.C. Attorney General Karl Racine has weighed in with the District’s response to the lawsuit, and unsurprisingly is arguing that it’s perfectly acceptable to bar the hundreds of thousands of riders from carrying a firearm for self-defense.
Attorney General Karl Racine, in a pretrial motion in a federal suit filed by four people seeking to carry guns on the public transit system, said Metro, with rail and bus passengers, including thousands of federal workers and children riding to school, is one of the “sensitive places,” where guns can remain prohibited.
The lawsuit, which was filed shortly after the Supreme Court’s decision expanding gun rights, says while bans in schools, stadiums and restaurants are likely constitutional, the gun owners should be allowed to carry concealed weapons on Metro.
Racine disagreed, saying, “every modern mode of interstate transportation prohibits the carrying of loaded firearms on one’s person,” including commercial aircraft and interstate buses.
“In dense spaces characterized by jostling and interpersonal conflict, the risk of a gun being accidentally discharged or hastily fired is tragically high — not only for the innocent bystanders who may be shot, but also for the countless other victims who may be crushed or thrown from a platform by a panicked crowd,” Racine wrote.
In addition, Racine said any incident involving a gun “could disrupt transit of transit for the hundreds of thousands relying on government-provided transportation each day.”
Unfortunately for Racine, simply barring lawful concealed carry doesn’t stop criminals from violating the “gun-free zones”, as we’ve seen in New York City, Chicago and Washington, D.C. Instead, they prevent law-abiding citizens from being able to defend themselves against violent attacks inside these “sensitive places”.
Racine may be correct about interstate transportation banning the carrying of loaded firearms, but I would note that airlines and Amtrak at least allow for firearms to be stowed in checked baggage. Metro doesn’t provide riders with that opportunity, which means that those concealed carry holders who are dependent on public transportation are in essence disarmed throughout their day because they’re unable to lawfully bring their gun on board a bus or train car.
But as we discuss on today’s Cam & Co (today’s video can be found at the bottom of this post), Racine’s argument also opens the door to a challenge on those interstate bans on carrying. Why is the Second Amendment the only constitutionally-protected right that stops at the border of your home state? As a Virginian with a valid concealed carry license, why can’t I exercise my right to bear arms in neighboring Maryland or Washington without first obtaining a license to carry issued by those jurisdictions? In fact, some states like New York and California don’t issue licenses to non-residents, which means my right to keep and bear arms in self-defense ends at the state line. How can that be if we’re talking about a real and fundamental right?
That’s not the main thrust of this particular lawsuit, however. Instead, the complaint focuses on the “sensitive place” designation for Metro, and rightfully points out that the restriction has a chilling effect on the Second Amendment rights of riders; particularly those who don’t have a car of their own and must depend on public transportation to get from Point A to Point B. Even if those individuals can lawfully carry in each of those locations, by prohibiting them from bringing their legally-owned guns onto Metro the transportation network is preventing them from doing so since they have no legal way to keep their firearm with them as they’re traveling.
D.C.’s public transportation system isn’t the only one facing a lawsuit over its prohibition on concealed carry. On Tuesday, the Second Amendment Foundation announced that it will be backing a similar lawsuit aimed at Illinois’ ban on firearms in public transportation, with SAF founder and executive vice president Alan Gottlieb remarking that the state is “trying to perpetuate an indefensible public disarmament policy despite the clear meaning of Supreme Court rulings and we’re going to help the plaintiffs put an end to this nonsense.”
That’s a welcome development, and hopefully we’ll soon see these infringements on the right to bear arms disappear from the books and be replaced with policies that respect the right to carry and the right of self-defense for all those who rely on public transportation to get them where they need to be.
SAF BACKS FEDERAL CHALLENGE OF ILLINOIS TRANSIT CCW BAN
BELLEVUE, WA – 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.
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.”
Federal judge says those accused of felonies still have Second Amendment rights
If you’re convicted of a felony offense, even a non-violent crime, that’s an automatic loss of your Second Amendment rights. But a federal judge in Texas says that those who’ve so far only been accused of a felony still possess the right to purchase a firearm, and on Monday the judge tossed out charges against a man who obtained a handgun while under indictment for burglary.
U.S. District Court Judge David Counts cited the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen in his decision, writing that he has not been able to find any historical precedent for barring those accused of a crime from exercising their constitutionally-protected rights.
In the same ruling, Counts both tossed a charge of obtaining a firearm while under indictment and noted it was unknown “whether a statute preventing a person under indictment from receiving a firearm aligns with this Nation’s historical tradition of firearm regulation.” Also unknown, he said, is “the constitutionality of firearm regulations in a post-Bruen world.”
“This Court does not know the answers; it must only try to faithfully follow Bruen’s framework,” he said.
In an earlier filing, the U.S. attorney’s office said the law to prohibit those under felony indictment from obtaining guns does not interfere with the Second Amendment “because it does not disarm felony indictees who already had guns and does not prohibit possession or public carry.”
“The Second Amendment has always allowed laws restricting the gun rights of groups viewed by legislatures as posing a public-safety risk, including those accused but not convicted of wrongdoing,” the prosecution wrote.
Well, if that were the case you’d think Counts would have been able to find some evidence of that in the historical record. Instead, the judge found that while the laws barring those convicted of felony offenses are longstanding and comport with the constitutional protection of the right to keep and bear arms, there’s a big difference between a conviction and an accusation.
The Supreme Court and the uses of history
Sept. 17 is designated by federal law as Constitution Day to commemorate the signing of the U.S. Constitution on Sept. 17, 1787. The U.S. Supreme Court is responsible in the American system of separation of powers for deciding what the Constitution means in specific cases. The first Monday in October marks the beginning of a new Supreme Court term.
The court’s previous term was the most conservative in nearly a century. The nation’s highest court overruled its two landmark pro-abortion rights precedents, expanded Second Amendment gun rights, reinvigorated the First Amendment’s free-exercise-of-religion guarantee against establishment-of-religion clause challenges and reined in the rulemaking authority of executive branch administrative agencies on the ground that only Congress is permitted to make law.
The court’s six-member conservative majority arrived at most of these results by turning to history to understand the meaning of the Constitution’s text. Specifically, in what may be fairly called “conservative originalism,” the court endeavored to enforce the Constitution’s “original meaning” by opining about historical sources that illuminate what the men (and it was only men in 1787) who wrote and ratified the Constitution intended for the textual provision at issue in a particular case to mean.
Of course, it is impossible for Supreme Court justices who are trained as lawyers rather than as historians and who decide scores of cases on the merits every year to do the historical research for themselves, notwithstanding that they each are assisted by four bright recent law school graduates.
Indeed, Justice Clarence Thomas (the court’s longest serving justice and its most unabashed proponent of conservative originalism) admitted as much in what court watchers should consider the most significant footnote since footnote 4 in the court’s 1938 decision United States v. Carolene Products Company.
In Carolene Products, the court upheld a federal law regulating “filled” milk, an imitation or adulterated milk product. Justice Harlan Fiske Stone, writing for the court, declared that the justices would no longer subject economic legislation to heightened scrutiny, but would instead now apply minimal scrutiny that was deferential to the legislature.
Justice Stone then inserted a footnote (footnote 4) that declared that the court would continue to apply heightened scrutiny in situations in which a law conflicts with Bill of Rights protections, where the political process is malfunctioning and when regulations adversely affect “discrete and insular minorities.” Concisely put, footnote 4 ushered in a new role for the federal courts in the American constitutional order.
Jumping ahead nearly a century to the court’s most recent transformational footnote, Justice Thomas wrote the following in footnote 6 in the court’s 2022 decision expanding Second Amendment gun rights: “The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies.” He continued: “That ‘legal inquiry is a refined subset’ of a broader ‘historical inquiry,’ and it relies on ‘various evidentiary principles and default rules’ to resolve uncertainties.” Finally, and most importantly: “Courts are thus entitled to decide a case based on the historical record compiled by the parties.”
Thomas should be commended for acknowledging in footnote 6 that the justices don’t do their own historical research. But unfortunately for conservative originalists, what he says in that footnote calls into question the entirety of conservative originalism.
After all, lawyers are notorious for cherry-picking history to try to get the result their clients are paying them to get. As Pulitzer-Prize winning historian Gordon Wood put it in a public debate about the Supreme Court and the uses of history: “Judges have to invent another kind of history: we call it ‘law office history,’ or ‘history lite.’ … It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.”
I agree with Dr. Wood. Consequently, my answer to the question whether Supreme Court justices should use history to decide cases is a qualified yes. This is what I mean by that: They should use history to identify the political philosophy of the American founding and then decide cases in light of that political philosophy.
In other words, judges should employ “liberal originalism,” which is “liberal” in the classical Lockean libertarian sense that the principal purpose of government is to protect individual rights, and it is “originalism” in the sense that the Framers wrote the Constitution with that principal purpose of government in mind. “To secure these rights,” the Declaration of Independence proclaims, “Governments are instituted among Men.”
Liberal originalism and conservative originalism sometimes (though not often because conservative originalism tends to be majoritarian rather than libertarian) lead to the same result in specific cases. To mention one example from the court’s most recent term, liberal originalism, like conservative originalism, reveals that the establishment clause doesn’t make the free-exercise clause meaningless. The political philosophy that the Constitution was adopted to effectuate reveals that America has been devoted since before the First Amendment was ratified to the free exercise of religion, which is a quintessential individual right.
Mike Lindell Is Suing the FBI and the Government for Violating His Rights. Pay Attention.
Mike Lindell wants more than just his phone back. Following the incident in Minnesota during which agents from the Federal Bureau of Investigation blocked his vehicle at a Hardee’s drive-through and seized his phone, Lindell made an appearance on Steve Bannon’s War Room. He announced that he was filing a lawsuit against the FBI and the government. You can watch Lindell’s conversation with Bannon posted by The Post Millennial below.
Lindell makes the point that his phone is what he uses to run his company and that it even controls his hearing aids. As someone who wears hearing aids, I had the option of connecting mine to my phone and even activating the Bluetooth feature. But while I don’t need to pair my ears with my phone, Lindell chose to do so. And for better or worse (probably worse), our lives are now almost inextricably linked to our phones. While that says more about the continuing decline of Western Civilization than anything else, let’s face it: we’d all be lost without our phones, no matter how erudite we think we may be.
FPC Files for Injunction Against PA Carry Ban for People with Restored Civil Rights
U.S.A. –-(AmmoLand.com)- Firearms Policy Coalition (FPC) announced the filing of a motion for summary judgment in its Suarez v. Evanchick lawsuit, which challenges Pennsylvania’s prohibition on carry by individuals who have had their civil rights restored following prohibiting convictions. The motion can be viewed at FPCLegal.org.
Plaintiffs in this action include Julio Suarez and Daniel Binderup, whom the Third Circuit Court of Appeals, sitting en banc, has already held to be persons who retain their Second Amendment rights in a landmark plurality decision in Binderup v. United States Attorney General. Another individual plaintiff, Daniel Miller, previously challenged 18 U.S.C. § 922(g)(1)’s prohibition as applied to him for a 1998 conviction for the use of an altered PennDOT window tint exemption certificate, for which he was granted relief by a federal trial court.
“Nothing in the Constitution’s text nor the Nation’s historical tradition of firearm regulation supports the categorical ban that the prior and continuing enforcement of Defendant’s regulations impose on Plaintiffs,” argues the motion. “Defendant’s regulations thus unconstitutionally prohibit and criminalize lawful, constitutionally protected conduct that Plaintiffs seek to engage in, including, but not limited to, carrying and transporting firearms for self-defense, including during declarations of emergency, and merely being able to stop for a bathroom break, grab a cup of coffee or bite to eat, or pick up a friend on the way to or from a firearm shooting range.”
“Despite Plaintiffs being peaceable citizens with no history of violent behavior and eligible to exercise the right to keep arms, Pennsylvania law unconstitutionally prohibits them from bearing and transporting firearms,” said FPC Director of Legal Operations Bill Sack. “Today’s Motion is an important step towards the full restoration of these individuals’ rights.”
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.
Well, not yet as SCOTUS hasn’t decided to grant cert. But if the current court remains ‘righteous’ as they have to 2nd amendment jurisprudence, they will take the case.
Experts say the Supreme Court may be waiting for additional lower court rulings before wading into the question of whether bump stocks count as machine guns under federal law.
New York is among a half-dozen states that had gun law provisions invalidated by the U.S. Supreme Court that expanded the Second Amendment.
- A Supreme Court case challenging the bump stock ban has been rescheduled for consideration 20 times.
- The Biden administration has urged the high court not to hear the challenge to the Trump-era ban.
- Gun rights groups fear the ban could open the door to other gun regulations.
WASHINGTON – Five years ago, a retired postal worker on the 32nd floor of a Las Vegas hotel carried out the deadliest mass shooting in American history, reopening a debate over a device known as a bump stock that turns a semi-automatic rifle into something closer to a machine gun.
Within a few months then-President Donald Trump moved to ban bump stocks through regulation, asserting the policy would “make it easier for men and women of law enforcement to protect our children and to protect our safety.”
Now two legal challenges to the Trump administration’s prohibition are pending at the Supreme Court – including one that has been rescheduled for consideration 20 times. The lack of a decision about whether or not the court will hear the litigation has led to speculation among experts who follow the issue closely that the court’s 6-3 conservative majority may not agree on how to proceed.
“The six conservatives on the court right now aren’t really on the same page about guns as much as people think they are,” said Dru Stevenson, a professor at South Texas College of Law Houston. Some in the court’s conservative wing, he said, “might be afraid to take the case if they’re not sure that they’re going to get their way.”
In addition to once again raising the issue of guns at the nation’s highest court months after it decided a landmark Second Amendment case, the new litigation also delves into how much power federal agencies have to create regulations when the law those rules are based on is unclear. Conservatives for years have sought to limit that agency discretion and their arguments seem to be gaining traction with the high court.
One of the cases, W. Clark Aposhian v. Attorney General Merrick Garland, was filed a year ago by a gun lobbyist in Utah who purchased a bump stock before the prohibition took effect. Another, Gun Owners of America v. Garland, was filed in March by gun rights groups. The court scheduled both cases for its final conference of the previous term in June, when the justices meet to discuss which cases to hear. Both were rescheduled.
The justices will hold their first post-summer conference on Sept. 28 and both cases are scheduled to be discussed at that meeting.
In a major guns decision in June, the Supreme Court ruled that a New York law that made it harder for state residents to carry handguns in public violated the Second Amendment. The 6-3 majority in that decision also embraced a new legal standard that puts a greater emphasis on historic gun regulations and may make it far harder for gun control advocates to defend gun laws.
Associate Justice Brett Kavanaugh and Chief Justice John Roberts joined the majority, but they wrote separately to stress some gun prohibitions may be permissible.
But the legal fight over bump stocks, a device that uses the recoil of a semi-automatic firearm to mimic automatic firing, isn’t being fought squarely on Second Amendment grounds. Rather, the groups and individuals challenging the ban say Trump’s Bureau of Alcohol, Tobacco, Firearms and Explosives erred when it interpreted a 1986 ban on the sale of machine guns to also include bump stock devices.
The 1986 law defines a machine gun as a weapon that fires more than one shot automatically “by a single function of the trigger.” Such weapons have been heavily regulated since the 1930s because of their use by organized crime leaders such as Al Capone.
Gun rights groups note the ATF had previously determined that bump stocks did not amount to machine guns. They point to remarks by Sen. Dianne Feinstein, D-Calif., who said in 2018 that “if ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years.” The best way to ban the accessories, Feinstein said at the time, was through legislation.
Aidan Johnston, federal affairs director for Gun Owners of America, dismissed the idea that the accessories are as potent a tool as critics suggest. For one thing, Johnston said, semi-automatic weapons can be “bump fired” through less sophisticated – and impossible to regulate – means, such as by threading a trigger finger into a belt loop on a pair of pants. For another, he said, bump firing makes it hard for the shooter to hit a target.
“It’s completely useless for self-defense, home defense – anything like that,” said Johnston, who said he owned one of the devices before the ATF rule went into effect.
So why fight it? Partly it’s because the plaintiffs fear what regulations may follow if federal courts permit agencies to prohibit bump stocks.
“We have to fight back if the federal government is going to say that any weapon that can be bump fired is a machine gun,” Johnston said. “If you allow that definition to stand then you’re only one rule change away from someone saying every semi-automatic firearm is a machine gun and banning those, too.”
That’s not a far-fetched idea. Stevenson said that another possible reason why the Supreme Court hasn’t decided what to do with the bump stock cases is that some of the justices may want to see how lower federal courts rule on challenges to semi-automatic weapon bans. After the decision in the New York case in June, the high court sent several other Second Amendment challenges back to lower courts for further review. One of those was a lawsuit challenging Maryland’s ban on the AR-15 and other semi-automatic rifles with magazines that can hold more than 10 rounds.
Gun control advocates push back on the argument that bump stocks should be permitted just because gun enthusiasts can jerry-rig an alternative.
“Just because a rule doesn’t completely solve a problem doesn’t mean it’s not a legitimate rule,” said Shira Feldman, litigation counsel with Brady, a gun control group. “There seems to be a lot of interest in circumventing what is a ban on machines – to find some way to use guns that are not supposed to be machine guns as machine guns.”
It’s not clear how many of the devices are in circulation, though the Justice Department had previously pegged the number between 280,000 and 520,000.
Feldman points to another reason why the Supreme Court may have been slow to take up the issue of bump stocks: So far, gun rights groups have been losing in appeals courts. The justices often like to see a disagreement in circuit courts – known as a “circuit split” – before wading in to resolve a dispute and provide guidance to lower courts on a thorny legal question.
“Right now,” Feldman said, “there is no circuit split.”
But that may soon change. In a separate case, the New Orleans-based U.S. Court of Appeals for the 5th Circuit has scheduled arguments in a challenge to the bump stock ban for Tuesday. Meanwhile, at least one of the justices has signaled a receptivity to the arguments being made by the gun rights groups.
The ATF, Associate Justice Neil Gorsuch wrote in 2020, “used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it.
“Why should courts,” Gorsuch asked, “defer to such bureaucratic pirouetting?”
Jury finds Alabama man acted in self-defense in Midvale [Utah] murder case
SALT LAKE CITY — A jury has acquitted a 27-year-old man of murder, concluding that he acted in self-defense when he killed another man following an hours long argument in Midvale last year.
Shortly after moving from Alabama to Utah for work at Kennecott Copper Mine, Lorenzo Parker was staying at a Motel 6 when he got into a fight with Tyler Williams, 30, on the evening of June 26, 2021. Police say the initial fight ended with Parker being punched but started up again several hours later when Williams came back with others. Surveillance video presented at the trial showed Williams hitting Parker with a metal pipe before Parker shoots him. Parker is also seen running away as he was pointing a gun at Williams.
A jury ruled on Sept. 2 that Parker was not guilty of the charges against him. Parker’s attorney, Rudy Bautista, said his client was released from jail that night and is back in Alabama with his family.
“He was ecstatic and relieved,” Bautista said. “He was very scared. He’s been scared throughout this entire process.”
What happened that night?
Bautista said Williams initially approached Parker with an offer to sell drugs and Parker refused. A 13-year-old witness reported seeing Williams punching Parker to the ground earlier before Parker said he didn’t want to fight and the conflict ended.
Later in the evening, Parker’s cousin arrived and the two eventually heard Williams make some gang noises, Bautista said. That led the cousin to give Parker his firearm. The 13-year-old witness said Williams came back with others in the early morning hours of June 27, and that Parker told Williams he shouldn’t have punched him earlier — which led to another fight.
The teenager’s testimony varied regarding when Parker pulled out a gun, according to Bautista — the teen could not remember if the gun was pulled out before or after Williams got out a metal pipe. Bautista said, however, the video of the event shows Williams hitting Parker multiple times with the pipe.
Bautista said when Parker realized Williams would not stop, he pointed the gun at him. Williams then threw a metal pipe, missed, and took a step toward Parker.
At that point, Parker fired one shot, hitting Williams, and then Williams ran away. Bautista said the bullet went through Williams’ arm and chest. Doctors performed surgery in an attempt to save Williams’ life, but he ultimately died.
He said Williams was found to have methamphetamine in his system that would make him act violently or irrationally.
“While (drug use) wasn’t medically attributable to the cause of his death, we argue that it was because he was acting irrationally and violent … and his actions, unfortunately, led (Parker) to have to defend himself,” Bautista said.
The jury trial
Bautista said Parker’s family was present in the courtroom throughout the trial. He said Williams’ family may have been attending remotely but did not show up in person.
The jury ruled Parker acted in “perfect self-defense,” deciding against an option to determine the act was imperfect self-defense, which would mean the murder charge would be sentenced as a reduced manslaughter charge.
At the trial, prosecutors argued Parker was the initial aggressor because when Williams came back, Parker said, “Dude, that wasn’t cool that you punched me,” according to Bautista. But Parker’s attorney argued those aren’t fighting words.
Bautista said after firing the gun, his client unloaded it, put it on the ground, waited for police with his arms up, and complied with everything they asked, which police at the trial said is not typical in similar instances.
Salt Lake County District Attorney Sim Gill said there was enough video evidence to support charging Parker. He said the video showed there was a back-and-forth conflict, that Parker had a weapon and that someone had been shot.
“We thought … this was something that needed to be brought to a jury,” Gill said. “Certainly, there was sufficient evidence that it needed to be filed and prosecuted.”
He said at the time, prosecutors thought the charges were appropriate but understands that the jury ultimately makes the decision. Gill said he was proud of prosecutors for treating the case seriously.
Justification hearings
This not guilty verdict comes after 3rd District Judge Paul Parker decided in a justification hearing that the prosecutors in the case had proven Lorenzo Parker did not act in self-defense and was the aggressor.
Under a state law that took effect in May 2021, a person charged with a crime of unlawful use of force who claims self-defense can request a justification hearing in front of a judge up to 28 days before a case goes to trial. The law shifts the decision about whether someone acted in self-defense from a jury to a judge, who might have to rule based on limited pretrial evidence.
If a defendant is able to bring credible evidence he or she acted in self-defense, prosecutors must prove with “clear and convincing evidence” — a high legal bar — that the person did not act in self-defense or was not justified in the use of force. If prosecutors are not able to meet that burden of proof, the judge must dismiss the charges with prejudice, meaning they cannot be refiled.
In this case, prosecutors met that burden, according to the judge, who ruled the charges should stand because he determined Lorenzo Parker was the initial aggressor.
Bautista argued that pulling a gun out and holding it by your side is a sign that you are prepared to defend yourself, not a threat, and that Parker did not say any fighting words.
“I really thought … he was going to prevail at a justification hearing. But after we didn’t, I don’t have any faith in those and I don’t intend to do them very often. I think juries get it better than judges,” Bautista said.
Gill said he thinks justification hearings are an “unnecessary process” that create a burden on the judicial system without providing any additional constitutional right that would not be available through the normal process, and this is just one example of that.
“I am adamantly supportive of protecting everybody’s constitutional right, OK? And under our current system, that right can be protected and is protected and preserved,” Gill said.
He said in some instances, a justification hearing takes family members of the victim through another hearing, lengthening the time they need to be involved in the judicial process.
“It just creates an extra, unnecessary step and, (from) what I’m hearing from victims, an unnecessary emotional roller coaster that they don’t need to go through,” Gill said.
The district attorney said a self-defense argument can always be brought up at trial, and if a judge rules in favor of the prosecution on self-defense at a justification hearing, he believes it should become the law of the case and should not be revisited. But that is not how the current law works. He said he would be more OK with the justification hearing process if it had some permanence. While there could be ways to improve to the process, right now it is causing more harm than good, he said.
“It was a solution in search of a problem, and the collateral consequence is a disproportionate revictimization and emotional abuse of victims who go through this process. It’s ridiculous,” Gill said.
Gun advocates fight for bump stocks in latest court hearing
NEW ORLEANS (AP) — A federal appeals court was told Tuesday that there is no basis in federal law for a Trump administration ban on bump stocks — devices that enable a shooter to fire multiple rounds from semi-automatic weapons with a single trigger pull.
The ban was instituted after a sniper using bump stock-equipped weapons massacred dozens in Las Vegas in 2017. Gun rights advocates are challenging it in multiple federal courts.
At issue is not the Second Amendment but whether bump stocks qualify as illegal “machine guns” under federal law. The rule banning the devices issued by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives said that they — a reversal, attorneys said, of a position held prior to the Las Vegas killings.
Opponents of the ban say the ATF’s rule doesn’t comply with federal law, and that it would take an act of Congress to ban bump stocks nationally.
So far, the ban, now being defended by the Biden administration, has survived challenges at the Cincinnati-based 6th U.S. Circuit Court of Appeals and the Denver-based 10th Circuit. Decisions on whether the Supreme Court will hear appeals in those cases are pending. It has also survived a challenge at the federal circuit court in Washington.
A panel of three judges at the 5th Circuit in New Orleans also issued a ruling in favor of the ban, but the full New Orleans-based court, currently with 16 active members, opted to hear new arguments. It’s unclear how quickly the full court will issue a ruling. Some judges raised the possibility in questions that they could await Supreme Court action in the other cases.
According to the ATF, bump stocks harness the recoil energy of a semiautomatic firearm so that a trigger “resets and continues firing without additional physical manipulation of the trigger by the shooter.” The shooter must maintain constant forward pressure on the weapon with the non-shooting hand, and constant pressure on the trigger with the trigger finger, according to Tuesday’s arguments.
But, opponents of the ATF rule argue that the trigger itself functions multiple times when a bump stock is used, so therefore bump stock weapons do not qualify as machine guns under federal law. They site language in the law that defines a machine gun as one that fires multiple times with a “single function of the trigger.”
“The trigger is going to function multiple times,” Richard Samp, arguing for a Texas gun owner, told the judges.
U.S. Department of Justice lawyer Mark Stern said the key is the action of the shooter.
“You only have to do one thing,” Stern told the judges. “Your trigger finger isn’t doing anything other than sitting still.”
Today in a lawsuit we're watching, Washington DC says it has repealed its regulation that limited "the amount of ammunition concealed-carry licensees may carry to 20 rounds." pic.twitter.com/iZbTJXGwZ6
— Firearms Policy Coalition (@gunpolicy) September 14, 2022
Concern over gun rights malign law-abiding citizens
With the Bruen decision, a whole lot of people think the days of oppressive gun control are all but over. After all, the decision made some things very clear, particularly with regard to the text and history standard laid out.
One will be hard-pressed to find gun control laws that fit within that standard.
Yet a Supreme Court decision doesn’t change people. Those who wanted gun control before still do, and that’s a huge issue. Especially since, as John Lott notes in a recent column, they treat law-abiding gun owners are mass murderers in the making.
In celebration of New York’s new gun control law that took effect Sept. 1, Democratic Gov. Kathy Hochul claimed: “This whole concept that a good guy with a gun will stop the bad guys with a gun, it doesn’t hold up. And the data bears this out, so that theory is over.”
At the same press conference, New York City Mayor Eric Adams warned that more concealed carry permits might lead to an increase in violence at Times Square, even though Times Square remains a gun-free zone for permit holders.
This is a typical response from Democrats. After each mass public shooting, Democratic elected officials push for more gun control. They ignore examples, even those that generated significant public attention, in which armed bystanders saved many lives. They also disregard a grim aspect of such crimes: Most mass shooters want to commit suicide in a way that will gain the most media coverage. The more people they kill, the more coverage they will get.…
Given how infrequently the news media covers defensive gun uses, it isn’t surprising that Hochul believes that defensive gun uses are rare. But survey estimates show on average that Americans use guns defensively about 2 million times a year. According to academic estimates, defensive gun uses – including instances when guns are simply shown to deter a crime – are four to five times more common than gun crimes.
Of course, Lott is absolutely correct here.
However, more than that, their calls for gun control essentially say that they think the average law-abiding gun owner is a potential mass shooter. Their calls for restrictions in places like Times Square aren’t calls that will keep killers from carrying. Those inclined to murder people in job lots aren’t exactly the kind of folks who are going to worry about a weapons charge.
Restricting the law-abiding does nothing to stop these crazed individuals. Anyone with any sense should be able to see the flaw in the plan here, yet that doesn’t seem to come up. Why?
The answer seems to be that they cannot discern us from the villains. They can’t tell the difference between a law-abiding gun owner who wants to lawfully carry his firearm for self-defense and those who want to slaughter the innocent.
We are not those people. We will never become those people.
Unfortunately, with every restriction on what law-abiding people can do with a firearm, lawmakers make it clear that they cannot tell the difference.
SAF Files Federal Lawsuit Challenging New NY Gun Control Law
The Second Amendment Foundation has filed a federal lawsuit challenging a new gun control law hastily adopted in New York State following the Supreme Court’s nullification of its previous concealed carry statute that required “proper cause,” alleging the state’s new statute is just as unconstitutional as the previous law.
The court ruled 6-3 in June that the requirement was unconstitutional under the Second Amendment.
Joining SAF is the Firearms Policy Coalition, Inc., and two private citizens, Brett Christian and John Boron. Defendants are Kevin Bruen, superintendent of the New York State Police, and John J. Flynn, Erie County District Attorney, in their official capacities. The case is known as Boron v. Bruen. It was filed in U.S. District Court for the Western District of New York.
Plaintiffs are represented by attorneys David H. Thompson, Peter A. Patterson and John W. Tienken with Cooper & Kirk, PLLC, and Nicolas J. Rotsko with Phillips Lytle, LLP in Buffalo, NY.
According to SAF founder and Executive Vice President Alan M. Gottlieb, passage of Senate Bill S 51001 by state lawmakers in Albany “replaced one unconstitutional licensing scheme with another.”
The new measure bans the lawful, licensed carry of firearms in so-called “sensitive places,” and presumptively most property in the state, creating a de facto ban on firearms carry for personal protection. As a result, SAF and its partners are asking for Declaratory and Injunctive Relief from the court.
“The New York Legislature and Gov. Kathy Hochul are making a mockery of the Supreme Court’s ruling in June, which struck down the state’s onerous ‘proper cause’ requirement in June,” Gottlieb said. “While they’re playing politics, the rights of law-abiding New York citizens are being cavalierly trampled. We cannot allow that to happen just so anti-gunners in Albany can play games with the constitution, just to see whether they can get away with it.
“The fact that New York’s new regulatory scheme essentially prohibits lawful carry in most public places is outrageous,” he continued. “The state is being too clever by half, and we’re confident that the federal courts, with the recent guidance from the Supreme Court on Second Amendment jurisprudence, will bring a quick end to this nonsense.”
Court Effectively Says ATF Can Continue Covering for Hunter Biden on Gun Buy
U.S.A. – -(Ammoland.com)- “[T]he Court GRANTS Defendant’s motion for summary judgment (ECF No. 8),” Judge Rudolph Contreras of the United States District Court for the District of Columbia concluded in David Codrea v. Bureau of Alcohol, Tobacco, Firearms, and Explosives. “An order consistent with this Memorandum Opinion is separately and contemporaneously issued.”
The order ends a legal effort that started in August of 2021 and grants ATF its wish that the case involving Hunter Biden is dropped.
Attorney Stephen Stamboulieh, who filed the complaint on my behalf “for injunctive and other appropriate relief and seeking the disclosure and release of agency records” related to its investigation into Hunter Biden and a handgun reportedly belonging to him, advises that no appeal will be filed due to the unlikelihood that it would succeed.
Seriously, what did we expect? We were never under any illusion that we had a magic bullet. But we had to try for no reason other than to once more expose how the most in-your-face outrages, get a pass when people have the right connections.
As per Judge Contreras’ decision, disregarding that Hunter Biden could not have legally purchased a handgun in Delaware without illegally denying documented controlled substance abuse on the Form 4473 Transfer Record, which is a felony, his privacy interests are officially deemed to outweigh any public interest.
“Mr. Codrea cites a news article stating that an FBI-seized laptop shows that Hunter Biden allegedly sent text messages discussing the handgun incident and a police investigation,” Contreras elaborates. “The Court is skeptical that one’s private texts can so easily be repurposed into public acknowledgment of a criminal investigation.”
On top of that, “Mr. Codrea did not provide a signed privacy waiver [from Hunter Biden] . . . that might authorize the release of information. Thus, the Court will examine Hunter Biden’s privacy interests on the merits.”
Right, and what were the odds of getting that?
The rest of the cited technicalities and arguments give legal cover for the judge’s order, but realistically, there was no real hope things would be decided differently. That’s in spite of all the original reporting presented on AmmoLand (and ignored by other media) culminating in compelling photographic evidence that Biden had also obtained at least one other gun, [possibly an airgun], presumably under the same felonious circumstances. That last one has also been ignored, with the exception of social media: Twitter put a warning on my tweet to Joe Biden about it, and Facebook was reportedly handing out “fact check” suspensions to anyone sharing it.
“That no media organizations are scrambling to be the ones to ‘break’ what appears to be a directed cover-up to the general public tells us much,” I noted in a report on how a black man was punished by the Justice Department over similar gun possession and substance abuse. “So will what Barack Obama-nominated Judge Contreras order.”
Here is what the Judge ordered:
If there is any outside coverage on this, don’t look for the focus of it to be on Hunter Biden getting away with “gun felonies,” with the full cognizance of ATF and the federal courts. That said, there’s nothing to stop any person from lecturing on what we should have said from stepping up and showing so call media how it’s done.
I mean, what other reason could there be that those with greater reach and resources wouldn’t want the truth known by all?
GVRed NJ 10-round magazine ban punted back down to U.S. District Court
In what should be a semi open and shut case, the matter of New Jersey’s 10 round magazine capacity limitation case has been remanded further down. The Grant, Vacate, Remand from the Supreme Court of the United States on Association New Jersey Rifle, et al v. Attorney General New Jersey, et al. should have been a solid indicator to the United States Court of Appeals for the Third Circuit on how to rule. Based on prior arguments and the textual lens on how to view things, which was delivered by NYSRPA v. Bruen, the fact that this isn’t settled already is baffling.
The August 25, 2022 Order decided to “kick”, in the “kick or stick scenario”.
This matter having been remanded for further consideration in light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), and upon consideration of the parties’ positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded. Judge Matey dissents from this order, as described in the attached opinion.
Had the Third Circuit agreed to rule on or render an opinion on the case, there’s a possibility that Garden Staters could have had standard capacity magazines back before year’s end. However, the battle will continue, but we’re at least not starting at square one.
In a recent interview that aired on August 27th, Dan Schmutter, the attorney litigating the case on behalf of the Association of New Jersey Rifle and Pistol Clubs, discussed the news. During Gun for Hire Radio Episode 588 Schmutter went into detail on that case, as well as other pending pieces of litigation, and topics.
Schmutter: So unfortunately, guys, I have to open with some not great news. We just heard from the Court of Appeals for the Third Circuit. In the magazine case, we were hoping to keep the case up at the Court of Appeals and have…and we have asked The Court of Appeals to decide the case on the merits right now. The State was urging them to send it back down to the trial court, the District Court. And unfortunately, we got a two one ruling today that the Third Circuit decided to send it back down to the District Court. And what that does is it just adds another layer of delay. And cost. And so unfortunately, you know, now we’re back at the District Court, we have to do that all over again. We’ll probably end up back at the Court of Appeals, you know, whichever way it goes, somebody’s not gonna be happy. So, you know, it’s unfortunate. We were urging the court to not give in to the state’s request to add more delay and cost. And it was a two, one decision. We got a very nice dissenting opinion from Judge Paul Matey. And he agreed with us that there was no reason to send it back down to the trial court. The usual…it is very typical for when something comes down from the Supreme Court for the Court of Appeals to send it all the way back down to the trial court. But that’s not unusual. It’s actually quite typical. The problem is, in this case, it’s not necessary. And there’s plenty of precedent for not doing that where it’s not necessary or appropriate. And I think we made a very strong case that it’s not. But, you know, the court did with the court didn’t, so we have to live with it. And so we’ll fight the fight down at the District Court. But it’s disappointing. I mean, they really…our feeling was they should have done the right thing here and just kept it, decided it. And, that’s…that’s life.
The dissent that Schmutter brought up is worthy of a read. Some of the crisper arguments made within include:
The State’s follow-on—that it missed the chance to provide historical evidence— fares no better. Round after round, in both the District Court and this Court, history took center stage. The State joined that discussion, arguing unsuccessfully that laws regulating ammunition capacity were longstanding. It strains credibility for New Jersey to now suggest it simply overlooked the focus on history and practice outlined in Heller, repeatedly applied by this Court, and vigorously advocated in this case. That the State decided not to press those points harder, whether as clever strategy or careless slip, is not relevant. We have been far less forgiving of that sort of waiver by far less sophisticated litigants.
With no new law to apply, and the historical record firm, there would seem no work remaining on remand.3 But what is the harm, some might ask? Why the rush? A question rarely raised when other fundamental rights are at issue and answered, again, by the Supreme Court: bearing arms “is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”…
To avoid further confusion, there simply is no such thing as a “large capacity magazine.” It is a regulatory term created by the State, meaning no more than the maximum amount of ammunition the State has decided may be loaded into any firearm at one time. Sixteen rounds was large yesterday, eleven rounds is large today. The State is welcome to market its policy goals using catchy slogans, but the rights of our Republic are built on sturdier stuff. Stripping away the buzzwords reveals the real question: whether “the Second Amendment’s plain text” protects possession of a firearm magazine, in which case “the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2126. The only avenue around that presumption is proof—presented by the State—that its cap on magazine capacity “is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Remand is unnecessary as both questions have already been answered. First, “[b]ecause magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended, magazines [fall] within the meaning of the Second Amendment.” N.J. Rifle I, 910 F.3d at 116 (cleaned up). And second, “there is no longstanding history of” magazine capacity regulation. Id. at 116–17. Another four years of proceedings to reach those conclusions again is not needed. Nor can the United States remain “a government of laws . . . if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. 137, 163 (1803). I respectfully dissent.
Judge Matey clearly points out what Schmutter and most of us already know, the State of New Jersey is going to have one heck of a time making the case that it’s okay to arbitrarily limit how much ammunition one is allowed to possess in an ammunition feeding device. The history has not changed since prior arguments, but the context in which thou shall look at a Second Amendment related case has. Is this remand stall tactics or a function of making sure the topic gets its due review? With the court situated in Philadelphia, Pennsylvania, once a bastion of freedom and liberty, including New Jersey and Delaware, ironically flanking the Keystone State, we can leave the motives up to the readers to decide. History, text, and tradition would say something different about that region than how it’s currently represented.
The section concerning the magazine capacity limitation case in the Gun for Hire Radio Schmutter interview ended with host Anthony Colandro asking about the process.
Colandro: Now, what do we face at the District Court? Is it one judge? Is it a panel?
Schmutter: Yeah it’s one judge, the original trial judge that heard it the first time. He gets it back, but he gets it back under a new set of rules. He gets it back now under the rules from the Bruen decision. And so you know, in a sense, he’s not starting from scratch because there is a record. It’s not like we’re starting with a blank slate here. There is a record and there is a favorable record. So, in the sense that we think that some of the findings that the court made the first time around are very, very helpful to us. So, you know the court is presumably gonna reach out to us at some point soon to…we’ll probably have a conference. The court will probably want to know how the parties think the case should proceed, and we’ll go from there. And we’ll develop our strategy as to what the right way to move this forward is. And we’ll move it forward. It’s just disappointing that we’re going to be doing this in a court where we really shouldn’t have to be. But you know, as you know, we know, this is a slog, it’s a marathon, and we’re going to continue fighting. I mean, it’s…there’s no question or option we’re gonna keep this moving. And, we like our chances. We think that…we’ve talked about this quite a few times now, about how we think Bruen gives us some very, very good tools. And we’re going to bring those to bear in the District Court on this case. We’ll see what happens. When there’s a development, you’ll certainly…I hope you’ll have me back to talk about it. And we’ll see what. We’ll go from there.
The quick answer to “What does this all mean?” is that matter’s been punted back down, again. This does not mean we’re starting from square one, as Schmutter pointed out. Will NJ’s subjects see 15 rounders again in New Jersey? Will they see them by year’s end? Will inhabitants of the land of 1000 diners see magazines larger than 15 rounds in NJ one day? All great questions, but it’s hard to read how this is going to go down. As far as the NYSRPA v. Bruen decision goes, it’s clear that putting restrictions on standard capacity magazines would be unconstitutional, as such limitations would not have been acceptable at the time of our founding. Whatever outcome may come in the District Court, we can almost bet money on the fact that the Third Circuit Court of Appeals will see this one again.