Category: Courts

Gun Rights Group Amends Lawsuit To Lower Tennessee Constitutional Carry Age To 18+ After Texas Victory

A gun rights group filed an amended complaint Wednesday in its lawsuit seeking to lower the age requirement of Tennessee’s constitutional carry law to adults age 18 and older.

The Firearms Policy Coalition (FPC) filed an amended complaint in its Tennessee lawsuit after winning a similar case in Texas last month. FPC sued Tennessee last year after the state passed a law allowing residents age 21 and older to either open or concealed carry a handgun without a permit.

“The State cannot carry its burden of proving the existence of ‘a distinctly similar historical regulation’ that burdened the right to bear arms in the same way and for the same reasons,” FPC’s amended complaint says. “Instead, the relevant historical evidence weighs heavily in favor of upholding the right to carry loaded handguns in public for 18-to-20-year-olds, just the same as for those who are 21 years and older.”

“They are squarely among ‘the people’ for whom the Second Amendment guarantees were created. They were not only allowed to keep and bear arms without any restriction but required to do so during the Founding era that shaped the liberties enshrined in the Amendment,” the complaint says.

On August 25, a federal judge in Texas struck down part of a state law barring adults ages 18 to 20 from carrying a handgun without a permit.

“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition,” U.S. District Judge Mark Pittman wrote in the ruling.

FPC Director of Legal Operations Bill Sack cited the Texas ruling in a statement about the updated Tennessee complaint. He said the Tennessee lawsuit gave the court the “opportunity” to apply last year’s Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen appropriately.

“Just two weeks ago in the FPC-led case Andrews v. McCraw, a federal district judge in Texas concluded that the Constitution demands the restoration of the right to bear arms to the young adults of that state,” said FPC Director of Legal Operations Bill Sack. “With today’s filing in Beeler, the Eastern District of Tennessee now has the opportunity to properly apply Bruen and reach the same conclusion.”

In Bruen, the Supreme Court struck down a New York law requiring applicants for a permit to carry a handgun to demonstrate that they have a special need for self-defense in addition to other requirements.

State V. Philpotts – Ohio Supreme Court Justice Brunner’s Dissent

The Supreme Court of Ohio ordered all parties in State v. Philpotts to file supplemental briefs addressing the impact on the case of the US Supreme Court’s decision in NYSRPA v. Bruen. Given the import of the Bruen decision on both the state and federal level, this seem eminently reasonable.

That is except for Justice Jennifer Brunner (D-Ohio) who seems to take the first line of Sam Cook’s classic What a Wonderful World as her motto. She issued a dissent in which she objected to this order of the Ohio Supreme Court.

After rambling on about it being hard to convey lessons from history, about how revisionists have re-written history to make it fit modern times, and how it is hard to use primary documents, she comes up with this objection to the use of text, history, and tradition.

{¶ 8} Importantly, the glaring flaw in any analysis of the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations. How would this problem be addressed in any modern analysis of historical gun regulations? It cannot simply be ignored. And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made? (emphasis mine)

Does she not know that gun control was historically used to keep nonwhite people disarmed and disenfranchised? There have been many books and articles on this such as Prof. Nicholas Johnson’s book Negroes and the Gun: The Black Tradition of Arms. Perhaps she is unaware of Ida B. Well’s seminal work on lynchings in which she said, “a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” A very recent study by economists at Clemson found that when blacks had greater access to firearms, the incidence of racial violence and lynchings was diminished.

Does Justice Brunner really think that nonwhite people preferred being disarmed in the 18th, 19th, and 20th centuries? Since there were no laws preventing women from being disarmed, I will skip that except to say that Annie Oakley was a damn fine shot.

And to answer her question, yes there are sufficient materials available to discern the views of nonwhites on gun control with which to enable the court to come to a reliable conclusion.

UPDATE: I found out this evening that Justice Brunner is running as the Democrat candidate for Chief Justice of the Ohio Supreme Court. Among her pledges is for “bail reform”. Given the experience in other states with “bail reform”, it seems a recipe for more property and violent crime in Ohio. That, when combined with her willful ignorance of history, makes her totally unsuited for the position she seeks.

Her opponent, Justice Sharon Kennedy, has the endorsement of the Buckeye Firearms Association along with many law enforcement organizations. Before she went to law school, Justice Kennedy was a police officer in Hamilton, Ohio. Justice Brunner, by contrast, has a number of union endorsements but not a one of them deals with law enforcement.

If you live in Ohio, I would urge you to get out to vote for Justice Kennedy and get your friends, family, and neighbors to do the same.

This being on a Bloomberg site, I can’t tell if this is a “*gasp*! Horrors!” article or not.( I hope it is, and that Bloombutt gets more indigestion)

Judge’s Ruling Maps Strategy for N.Y. Concealed-Carry Gun Cases

A federal judge has written what could become a blueprint for challenging New York’s concealed-carry law.

New York and other states including California, rushed to pass legislation after the US Supreme Court threw out a century-old law that limited who could carry a handgun in public.

New York banned concealed weapons in most public places. Private business owners can opt to allow concealed weapons in their establishments under the law and must post signs saying so.

Though US District Judge Glenn T. Suddaby denied a request last week to stop the law from taking effect, his 78-page decision described at length why the law could be found unconstitutional.

Among his reasons:

  • The new law omitted the phrase “other than in self-defense,” which could create a Second Amendment problem;
  • The state’s list of “sensitive places” is extensive, and automatically declaring private property a restricted location usurps private property rights;
  • The law’s social media and character reference requirements grant too much discretion to licensing officers and risk punishment for political speech in violation of the First Amendment;
  • Fifth Amendment concerns stem from an applicant having to incriminate themselves by providing all the information required for the permit.

Attorneys involved in other cases are sure to notice Suddaby’s contention that the plaintiffs would have had a “strong likelihood of success” on several of their claims, noted Margaret Finerty, co-chair of the New York State Bar Association’s Task Force on Mass Shootings.

“I think they’ll learn from the judge’s ruling,” said Finerty, a partner with Getnick and Getnick LLP and member of the American Bar Association’s Standing Committee on Gun Violence.

“The judge basically said we were right,” said William Robinson, communications director for Gun Owners of America New York.

The state Republican Party said it plans to take the judge’s decision into consideration as it prepares a suit to be filed jointly with the Conservative Party.

“As the judge stated, Kathy Hochul’s law is blatantly unconstitutional and we have full confidence that it will ultimately be overturned,” GOP Chairman Nick Langworthy said in an emailed statement. “We are working with top legal experts to ensure that when filed, our case moves forward successfully.”

Concealed Carry Permits

The New York law increased requirements for obtaining a concealed carry permit—for example by requiring a list of former and current social media accounts from the past three years, seeking four character references who can attest to the applicant’s good moral character, and requiring 16 hours of in-person training and two hours of live-fire training.

The law followed two shootings on New York City subway trains that injured dozens and left one man dead. A racist gunman also killed 10 Black people in a mass shooting at a Buffalo, N.Y., supermarket May 14.

“Responsible gun control measures save lives and any attempts by the gun lobby to tear down New York’s sensible gun control laws will be met with fierce defense of the law,” State Attorney General Letitia James (D) said. “We will continue to defend the constitutionality of our laws to protect all New Yorkers.”

Case Dismissed

Gun Owners of America, its New York branch, and Ivan Antonyuk, a member of the gun owner group, filed suit July 11 alleging the new concealed-carry law is unconstitutional. He took issue with several aspects of the legislation, including the extensive list of sensitive places, and “incredulous demands for carry license applicants.”

The judge dismissed the case, largely because Antonyuk didn’t specify that he intended to carry a concealed weapon after the law took effect, only that he would like to.

Intent to carry and evidence of an imminent threat of arrest or prosecution by law enforcement would have been required to seek an injunction, Suddaby wrote.

Suddaby also took particular issue with a part of the law that says no license will be issued or renewed unless the person is an applicant of “good moral character” with the judgment necessary to only use the weapon in a manner that does not endanger oneself or others. The legislation didn’t include the phrase “other than in self-defense,” and without it, New York residents are left with a statue “plagued by a profound Second Amendment problem’,” he said.

The plaintiff would have had a “strong likelihood of success” in challenging that omission and also could have prevailed on their excessive training claims, he said.

“We will be back in court,” said Robinson. “The US Constitution is on our side, so we’re going to win this.”

Pending Cases

Buffalo real estate developer Carl Paladino on July 11 filed suit contending that the provision making private businesses automatically off-limits to concealed weapons violates the US Constitution.

A concealed-carry license applicant also has filed suit contending the law’s social media, character reference, and training requirements violate the right to free speech, to bear arms, and to due process.

The New York State Jewish Gun Club has said it, too, plans to file suit, taking issue with banning guns from houses of worship.

It’s understandable why the state wanted stricter gun laws, more training, and scrutiny of social media, Finerty said, noting that the Buffalo shooter posted his plans online and then live streamed the attack.

“I think the state has a lot of good arguments they can make to support the law,” Finerty said. “Many people feel it’s just overbroad, and it will be very interesting how it plays out in court.”

Everytown for Gun Safety advocates for universal background checks and other gun control measures. Michael Bloomberg is the majority owner of Bloomberg Government’s parent company and serves as a member of Everytown’s advisory board.

The cases are Antonyuk et al. v. Bruen, N.D.N.Y., Case 1:22-cv-00734-GTS-CFH, Decision 8/31/22; Paladino v. New York State Police Superintendent Et al., W.D.N.Y., Case 1:22-cv-00541, Complaint 7/11/22; and Jonathan Corbett v. Kathleen Hochul, S.D.N.Y., Case 1:22-cv-05867, Complaint 7/11/22.

California’s under-21 semiautomatic gun law tossed back to lower court for review

SAN FRANCISCO (CN) — The Ninth Circuit has sent a lawsuit challenging California’s regulation of types of firearms that can be sold to young adults back to the lower court for review in light of the U.S. Supreme Court’s recent bolstering of gun rights.

In a 4-page order Wednesday, the Ninth Circuit panel vacated its opinion reversing a lower court judge’s refusal to preliminarily block a California law barring young adults from buying semiautomatic rifles, which it also vacated.

The panel remanded the case in light of the recent U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which upheld the right to bear arms as protected under the U.S. Constitution.

This past May, the panel had split on the issue of whether California’s prohibition on semiautomatic rifle sales to young people unduly burdens the Second Amendment, based on U.S. District Judge M. James Lorenz’s ruling.

U.S. Circuit Judges Ryan Nelson and Kenneth Lee, both Donald Trump appointees, had ruled Lorenz should have blocked California’s ban on the sale of semiautomatic rifles to those between the ages of 18 and 21 except for some law enforcement officers and active-duty members of the military.

Nelson and Lee found Lorenz should have applied the most rigorous level of constitutional scrutiny. Nelson said the semiautomatic rifle rule’s slight exceptions amount to a blanket ban for most young people, finding it is unfair for young adults to have to be police or military officers to obtain certain firearms.

Nelson found the law unfairly lumps all young people together, and relied on statistics that show they are disproportionately more likely to commit violent crimes, especially gun crimes. His opinion touted colonial militias and English law and custom in determining the extent of the Second Amendment’s reach, as at the time of the Second Amendment’s ratification Congress had passed the Militia Act of 1792 mandating militia duty and firearm possession for young adults.

But the panel also found California’s separate ban on the sale of long guns to anyone under 21 without a hunting license was a reasonable fit for public safety purposes.

Dissent came from U.S. District Judge Sidney Stein, a Bill Clinton appointee, who said neither of the laws are categorical bans and both are consistent with the custom of restricting certain groups from accessing firearms for public safety reasons.

Lawyers for the plaintiffs and California Attorney General Rob Bonta did not respond to requests for comment by press time.

Gregory Magarian, a professor of law at Washington University in St. Louis School of Law, said in an interview that he thinks the Ninth Circuit may have made this turnaround decision because the new Supreme Court ruling offered “a chance to wipe the slate clean.”

“Now the district judge will be compelled to come out the other way, because of what the Supreme Court has said,” Magarian said. Still, he said it’s possible the point is to reassert the force of the majority’s opinion.

“It’s a way of saying, ‘We dare you to come out the way you did the first time, and if you come out the way you did the first time, we’ll slap you down again — but this time we’ll slap you down harder,’” Magarian said.

State lawmakers have been bracing for the effects of the Supreme Court’s ruling in Bruen for months. At a press conference after the ruling came down earlier this summer, Bonta — flanked by several Assembly members and state senators — said he supported Senate Bill 918, which addresses issues flagged in Bruen.

“Your right to live without fear of gun violence should not be trumped by a person’s right to carry a gun,” Bonta said.

To comply with the Supreme Court’s Bruen decision, Bonta said California would ax its own “good cause” requirement for applicants for concealed-carry weapons permits. But he pointed out the Supreme Court did affirm states’ rights to use “nonsubjective” criteria for issuing concealed weapons permits — prior arrests, convictions, restraining orders, background checks, fingerprinting, firearms training and mental health evaluations.

However, SB 918 and other gun control bills have either been heavily amended or killed outright in the recent legislative session. The former faced opposition from Assembly and Senate Republicans and failed to pass despite reconsideration.

Magarian said because both California and New York tend to have liberal state governments with a strong preference for more gun regulation compared to other states, they could try to test different regulations through the courts.

“There’s a pretty strong potential for tension here,” Magarian said. As was the case with more conservative states passing restrictive abortion regulations before Roe v. Wade was struck down, he added, “I think it’s possible California especially, and maybe New York as well, will sort of cast themselves as the activist states trying to push back on where the Supreme Court is going on gun rights.”

However, Magarian said this remand will depend on how much energy pro-gun regulation lawmakers and judges want to use on defending regulations on firearm sales to people under 21.

“The Ninth Circuit historically has been willing to put itself on the line, even if it thinks the Supreme Court might be coming down,” he said. But he also said there is a possibility that the courts and lawmakers will decide “in the cosmic scheme of things, maybe this isn’t the hill we want to die on.”

Gun-Rights Group Files Five New Lawsuits Against ‘Assault Weapon,’ Magazine Bans

The floodgates have opened up for new “assault weapon” and magazine ban legal challenges.

The litigation arm of the Colorado-based National Association for Gun Rights (NAGR) filed five separate lawsuits in multiple federal district courts on Wednesday. The suits all take aim at ‘assault weapon’ bans and ammunition magazine size limits passed at both the state and local levels spanning the country from Hawaii to Massachusetts.

“With the decision handed down in Bruen, laws like these will now need to find their justification in the history, text, and tradition of the Second Amendment,” the group noted on its website. “These laws and ordinances ban firearms that are in common use throughout the United States in violation of the rule set forth in Heller.”

The wave of new suits arrives at a time when gun-rights supporters are looking to stymie the resurgence of political will behind the measures. Public support for the bans ticked up in a recent poll after declining in other post-Uvalde surveys, and the House of Representatives was able to pass the first federal ban in nearly three decades. At the same time, other court battles have called into question the long-term viability of assault weapon bans, which ban popular guns such as the AR-15, following the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen.

In the aftermath of that decision, the Court ordered the Fourth Circuit Court of Appeals to reconsider a decision that upheld Maryland’s ban. States like California have struggled to mount a cogent legal defense of their “assault weapon” ban using the required Bruen test. NAGR’s Colorado state affiliate has also been successful in getting temporary restraining orders against two separate local “assault weapon” bans over the last two months.

The latest lawsuits take aim at statewide AR bans in Massachusetts and Connecticut, a similar ban in the state of Hawaii on “assault pistols” and magazines holding more than ten rounds, and two local “assault weapon” bans in the Illinois towns of Naperville and Highland Park. By casting such a wide geographical net, the group intends to set precedents in multiple federal court circuits to have the widest effect possible. The group hopes that the effort will eventually lead to a nationwide rollback of such bans.

“On September 7, 2022, the National Foundation for Gun Rights filed five new lawsuits in four federal court circuits to eliminate unconstitutional magazine and gun bans everywhere!” the group said. “Combined with our lawsuits in Colorado these represent nearly half of the country. This nationwide legal blitz aims to take out every single ban on semi-automatic weapons and standard capacity magazines for good.”

The group asked for an injunction against each of the respective bans.

The Reload reached out to each of the named defendants in the latest NAGR suits for comment but has not received any.

The cases are NAGR v. Naperville (IL), NAGR v. Highland Park (IL), NAGR v. Shikada (HI), NAGR v. Healey (MA), and NAGR v. Lamont (CT).

Anti-Gun States Blatantly Ignore U.S. Supreme Court’s Recognition Of The Right To Bear Arms

Lawmakers debate legislation to consider new firearms regulations for concealed-carry permits during a special legislative session in the New York Assembly Chamber at the state Capitol Friday, July 1, 2022, in Albany, N.Y.

In June, the U.S. Supreme Court issued its opinion in the NRA-backed case of New York State Rifle & Pistol Association v. Bruen. It was a resounding victory for the Second Amendment and vindicated the principle (obvious to all but gun-control advocates) that Americans have an individual right to “bear” arms in public for self-defense.

The opinion also prescribed a standard of review that lower courts must apply in resolving Second Amendment cases. This demanding test requires respect for the original understanding of the right to keep and bear arms and prohibits infringements on this right unless a similar legal tradition existed when the Bill of Rights or the 14th Amendment were adopted.

Success in Bruen did not happen accidentally. It was the result of tireless advocacy, strategic litigation and electoral victories that culminated in former President Donald Trump’s appointment of three originalist justices to the U.S. Supreme Court.

Yet, Bruen is only the first of many steps that will need to follow. Anti-gun states, including New York, remain in open rebellion against the right to keep and bear arms. They will not comply in good faith. The rebellion will have to be put down in the courts, the legislatures and with the weight of public opinion. Your NRA, as always, will be leading the way.

Anti-gun states, including New York, remain in open rebellion against the right to keep and bear arms.

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Traditionalism Rising, Part I: Defining Traditionalism and Locating It in the Court’s 2021 Term

Eugene has graciously invited me to write a few posts about my new article, Traditionalism Rising (forthcoming in the Journal of Contemporary Legal Studies and part of a symposium this fall at the University of San Diego School of Law). The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I’ve been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court’s work this past term; (2) compare traditionalism and originalism, particularly what the paper calls “liquidated originalism”; (3) address traditionalism’s “level of generality” problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism’s politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

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FPC Secures Partial Preliminary Injunction in Lawsuit Challenging ATF “Frame or Receiver” Rule

FORT WORTH, TX (September 2, 2022) – Today, Firearms Policy Coalition (FPC) secured a partial victory in VanDerStok v. Garland, in the form of a partial and limited injunction in its lawsuit challenging the ATF’s rule that would create new terms and enact a slew of regulations for the agency to enforce. The opinion can be viewed at FPCLegal.org.

“The Final Rule’s redefinition of ‘frame or receiver’ conflicts with the statute’s plain meaning,” wrote Federal District Court Judge Reed O’Connor in his Order. “The definition of ‘firearm’ in the Gun Control Act does not cover all firearm parts. It covers specifically ‘the frame or receiver of any such weapon’ that Congress defined as a firearm. 18 U.S.C. § 921(a)(3)(B). That which may become a receiver is not itself a receiver.”

Specifically, today’s ruling:

  • Finds that the plaintiffs are likely to succeed in their challenge to the ATF’s “Frame or Receiver” Rule;
  • Grants a preliminary injunction as to plaintiff Tactical Machining, but does not grant a preliminary injunction in regards to Tactical Machining’s customers, other manufacturers or retailers, or any other individuals interested in buying the affected products; and,
  • Gives the plaintiffs an opportunity “to submit further briefing and evidence on the scope of the injunction” by September 8th, with a response from the government due 7 days later.

“This is an important initial victory, but we have much more work to do in this case,” said FPC’s Senior Attorney for Constitutional Litigation Cody J. Wisniewski. “We look forward to presenting the Court with additional arguments and moving this case towards a full decision recognizing the deep flaws with the Agencies’ Rule as soon as possible.”

More on the case out of Pennsylvania

BLUF
This is a strong ruling restoring Second Amendment rights. As a Circuit Court ruling, it is a precedential ruling which applies to the entire Third Circuit. The Third Circuit includes Pennsylvania, New Jersey, Delaware and the District of the Virgin Islands.

For New Jersey, Delaware, and the District of the Virgin Islands, this is a tsunami in firearms law, potentially washing away decades of Second Amendment infringements.

Ownership of Arms Protected by Takings Clause, 2nd and 14th Amendments

U.S.A. –-(AmmoLand.com)-– On August 30, 2022, a three-judge panel in the Third Circuit Court of Appeals unanimously ruled the Pennsylvania government violated the Takings clause, the Second Amendment, and the Fourteenth Amendment when they refused to return a gun collection of the parents of a man who was convicted of murder.

The parents never committed a crime. The state never used the parents’ gun collection as evidence.  From a list of properties, I estimate 47 guns, accessories, computers, and other items valued at $40,000 or more were taken.

The State refused to return the parents’ property under the rule of force: we have them, and we won’t give them back.

After their son had lost his appeal, the parents asked for their property back. It had not been used as evidence in the case.  The state refused. The parents sued in federal district court under U.S. 42:1983, civil rights act. The case was filed on June 10, 2020.

The District Court ruled against the parents. The parents appealed to the Third Circuit Court of Appeals.

The appeals court ruling, written by Judge Bibas, appears to be unanimous (no dissent was seen) and very strongly written. The Bruen decision was important in this case. From the order of the three-judge panel:

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FEDERAL JUDGE FINDS NEW YORK’S NEW CONCEALED CARRY LAW TO BE PATENTLY UNCONSTITUTIONAL, BUT ALLOWS IT TO TAKE EFFECT

Washington, D.C. – Late yesterday, in the U.S. District Court for the Northern District of New York, Chief Judge Glenn T. Suddaby issued an opinion and order denying GOA’s motion for a preliminary injunction against the State of New York’s poorly named “Concealed Carry Improvement Act.”  Although going into detail about how just about every aspect of the Concealed Carry Improvement Act (CCIA) is unconstitutional, the judge concluded that none of the plaintiffs had standing to challenge any aspect of the law.

This bad news comes after Gun Owners of America (GOA) and its nonprofit legal arm, Gun Owners Foundation (GOF), filed suit to challenge the constitutionality of the legislation in July. The lawsuit was filed on behalf of a GOA member from Schenectady County.

Among other alarming provisions flouting recent Supreme Court precedent, this law, which is in effect as of September 1, requires concealed carry permit applicants to:

  • Display “good moral character”
  • Disclose their social media accounts for review
  • Have in person interviews with law enforcement
  • Provide four “character references”
  • Undergo 18 hours of combined training, a tremendous increase from the existing 4-hour requirement
In spite of his dismissal of the case, thankfully, Judge Suddaby understood, took to heart, and applied the clear edict from the U.S. Supreme Court in June, when the High Court instituted a “text and history” test for judges evaluating the constitutionality of restrictions on Second Amendment rights.

Shockingly, the anti-gunners defending the law in court elected to cite historical precedents such as the disarming of Catholics and Native Americans in the colonial era, as well as the slave codes of the antebellum South, to defend the legislation under the new “text and history” test requirement.

Erich Pratt, GOA’s Senior Vice President, issued the following statement:  

“Despite the judge’s dismissal of the complaint, his opinion contains a silver lining for New Yorkers and the nation, as the robust precedent laid out by the Supreme Court in June is clearly making headway.  GOA looks forward to continuing the fight against clear violations of the Second Amendment, as we work to restore the rights of all Americans.” 

Sam Paredes, on behalf of the Board of Directors for the Gun Owners Foundation, added:  

“Thankfully, Judge Suddaby rejected the bigoted historical laws that New York cited as justification for this highly restrictive law. We look forward to continuing our efforts to fully dismantle this law and sending a second clear message to Albany: ‘shall not be infringed.’” 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs New York State Rifle & Pistol Association, Inc., Robert Nash, and Brandon Koch (collectively “Plaintiffs”), by and through the undersigned attorneys, file this Complaint against the above-captioned Defendants, in their official capacities as state and local officials responsible under New York law for administering and enforcing the State’s laws and regulations governing the carrying of firearms outside the home. Plaintiffs seek a declaration that New York’s limitations of and burdens on the right to carry firearms as enacted in Senate Bill 51001 (“SB51001”) and as otherwise detailed below are unconstitutional under the First, Second, Fourth, and Fourteenth Amendments to the United States Constitution. Plaintiffs also seek an injunction compelling Defendants to refrain from enforcing those invalid limitations

New York Enacts Gun-Carry Restrictions in Rebuke to Supreme Court

The Empire State has made it harder than ever to legally carry a gun.

On Wednesday, Governor Kathy Hochul (D.) signed a series of new restrictions on where licensed carriers can take their guns and who can get a license in the first place. She painted the new measures as a direct response to the Supreme Court’s landmark ruling in New York State Pistol and Rifle Association v. Bruen, which struck down a key provision of the state’s previous law.

“[T]he Supreme Court issued a reckless decision removing century-old limitations on who is allowed to carry concealed weapons in our state — senselessly sending us backward and putting the safety of our residents in jeopardy,” Hochul said in a statement. “Today, we are taking swift and bold action to protect New Yorkers.”

The move puts the state squarely back in the crosshairs of gun-rights activists who want to take it right back to the high court. The collection of new restrictions will serve as test cases for feeling out the new limits of gun-carry regulation in the wake of Bruen. The more aggressive restrictions could serve as easier targets for those activists and have greater potential to set new Supreme Court precedents expanding the scope of recognized Second Amendment protections.

Government officials, who can no longer subjectively deny permits based on whether they think an applicant has “proper cause” for one, will be allowed to subjectively deny applicants based on their social media activity and “moral character.” Those who do obtain a permit will be barred from carrying on private property unless the owner posts a sign allowing it and anywhere the state has declared a “sensitive place,” including Times Square and several blocks around it.

The Supreme Court has already cast doubt on the constitutionality of those restrictions in their Bruen decision. Despite Governor Hochul’s claim the state only passed the new restrictions “after a close review of the NYSRPA vs. Bruen decision and extensive discussions with constitutional and policy experts, advocates, and legislative partners,” she has repeatedly made comments suggesting the laws are in direct conflict with the will of the Court.

A concurrence from Justices John Roberts and Bret Kavanaugh said requiring permitting for gun carry based on objective standards, including a background check or training requirement, was presumptively constitutional.

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NRA using Texas case to build its challenge to Florida law restricting gun buyers to age 21 and older

TALLAHASSEE — The National Rifle Association is pointing to a Texas case to try to bolster its constitutional challenge to a 2018 Florida law that prevents people under age 21 from buying guns.

An attorney for the NRA filed documents Monday at the 11th U.S. Circuit Court of Appeals after a federal judge last week issued an injunction against a Texas law that bars people under 21 from carrying handguns outside their homes for self-defense.

“The [Texas] court’s opinion confirmed that young adults come within the Second Amendment’s protections, and that banning young adults’ right to purchase [or carry] a firearm is inconsistent with this nation’s historical tradition of firearm regulation,” NRA attorney John Parker Sweeney wrote in a filing known as supplemental authority.

A panel of the 11th U.S. Circuit Court of Appeals heard arguments in May about the Florida law, which the Legislature and then-Gov. Rick Scott approved after a mass shooting at Parkland’s Marjory Stoneman Douglas High School that killed 17 people. The gunman, former Marjory Stoneman Douglas student Nikolas Cruz, was 19 at the time of the shooting.

Pennsylvania can’t keep guns in trooper ambush case, court rules

Pennsylvania may not keep a cache of weapons seized from the parents of a  gunman who killed one state trooper and permanently disabled another eight years ago, a federal appeals court ruled Tuesday.

The parents of Eric Frein sued after authorities refused to return 25 rifles, 10 pistols and two shotguns that were taken from their home in September 2014, days after Frein ambushed the troopers outside a state police barracks in the Pocono Mountains.

Eugene Michael Frein and Deborah Frein were not charged in their son’s crime — for which he was convicted and sentenced to death — and none of their weapons were used in his deadly late-night assault.

The Pike County district attorney, who was named as a defendant in the parents’ suit, had argued that authorities had the right to hold the seized weapons, saying they might be needed as evidence during Eric Frein’s state and federal appeals.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals disagreed, saying in its ruling Tuesday that state authorities never used Michael and Deborah’s weapons as evidence at their son’s trial and violated the parents’ constitutional rights by holding on to the guns indefinitely.

Curt Parkins, the Freins’ attorney, called the seizure a “terrible case of government overreach.”

“It’s really the government being vindictive,” Parkins said in a telephone interview. The Freins, he said, were “punished for being the parents of Eric Frein.”

State police declined to comment on the ruling, which overturned a lower court decision to dismiss the parents’ lawsuit. A message was sent to the district attorney seeking comment.

The state seized the Freins’ property without compensation in violation of the Fifth Amendment, and hindered their ability to keep firearms in violation of the Second Amendment, the appeals court said.

“The police understandably seized the parents’ guns in 2014 while a killer was still at large. But he has long since been captured and convicted, and his conviction has been affirmed,” the panel wrote in its decision. “The judicial warrant does not authorize keeping the guns past this point.”

The state would have to get another warrant to justify keeping the parents’ property, which the district attorney’s office conceded was unlikely because of a lack of probable cause, the court said.

Prosecutors have said Eric Frein was hoping to start an uprising against the government when he opened fire with a rifle on the Blooming Grove barracks. Cpl. Bryon Dickson II, a Marine veteran and married father of two, was killed in the late-night ambush, and Trooper Alex Douglass was left with devastating injuries.

Frein was captured after a 48-day manhunt. He was convicted and sentenced to death, though Pennsylvania has a moratorium on executions.

New lawsuit takes on Illinois ban on SBRs, suppressors

Illinois is one of a handful of states that go beyond federal law when it comes to restricted firearms. While possession of items like short-barreled rifles and suppressors are legal at the federal level as long as gun owners are willing to jump through all of the hoops and hurdles contained within the National Firearms Act, in Illinois it’s virtually impossible for the average citizen to purchase or possess either.

Now an Illinois man has filed a lawsuit challenging the state’s ban, arguing that both SBRs and suppressors fall under the protection of the Second Amendment. Robert Dorman is no stranger to the courts; the local paper in Madison County, Illinois notes that he’s filed “numerous lawsuits and other legal challenges” against officials in the county since he was terminated as the county’s IT director in 2020, though the paper doesn’t say whether or not any of them have been successful.

Regardless of his track record in recent years, Dorman’s latest lawsuit has to be considered a legal long shot.

In the three-count suit, Dorman claims he wants to acquire two prohibited items, a Model 1911 .45 caliber pistol with an attachable shoulder stock and a 5.56 mm rifle with a 14.5-inch barrel. He indicated in the second count that he also is interested in acquiring a suppressor, or “silencer,” for home defense.

Regarding short-barreled rifles, Dorman’s suit states that prior to 1934 — when the National Firearms Act first regulated them — the rifles and handguns equipped with shoulder stocks were common. The suit states those arms are covered under the Second Amendment’s right to keep and bear arms.

Dorman is seeking a ruling that Illinois residents with a federal “Curio and Relics” firearm license be allowed to possess short-barreled rifles and that the prohibition is unconstitutional.

Regarding suppressors, Dorman’s suit states that prior to 1934 suppressors were unregulated. The suit cites the shipping of a suppressor from the Maxim Silencer Co. of Hartford, Connecticut, to a person in Collinsville prior to the National Firearms Act. The suit also claims suppressors are protected under the Second Amendment.

The suit cites the Madison County Sheriff’s Department’s recent purchase of short-barreled AR-style rifles with suppressors. One of the justifications was that, if the rifles are fired within an enclosed space like a building, they would likely cause hearing damage.

Dorman’s lawsuit was filed in state court, so he’s not challenging the constitutionality of the National Firearms Act itself.. at least not directly. Instead, his argument is that the state of Illinois is depriving him and other law-abiding residents of their right to possess items that used to be and would be in common use if they weren’t restricted under the NFA and banned by Illinois law.

The biggest flaw in that argument is, for now at least, the Supreme Court hasn’t called into question the constitutionality of the National Firearms Act, nor has it weighed in on whether those restricted items covered under the NFA enjoy any protection whatsoever under the Second Amendment. If NFA items are not protected by the Second Amendment, then Illinois is free to ban any and all arms covered under the Act. If, on the other hand, some or all of the arms restricted by the NFA are protected by the Second Amendment, then the real issue becomes the NFA itself and not Illinois’ ban on the civilian possession of NFA items like short-barreled rifles or suppressors.

So far the state Supreme Court has been reluctant to overturn any Illinois gun control laws, even when lower courts have determined that a particular measure violates the Second Amendment. The state’s FOID card requirement has been ruled unconstitutional twice in recent years, but the state Supreme Court has voided those decisions on technical grounds both times. I highly doubt that the same court would find that Illinois’ ban on the possession of short-barreled rifles and suppressors is a violation of the Second Amendment when it won’t even recognize that requiring a state-mandated permission slip to possess a gun in the home infringes on the right to keep and bear arms. Dorman’s heart may be in the right place, but his argument is probably better suited for federal, not state court… and even there his argument would face pretty long odds given what the Supreme Court has said about the NFA over the decades.

10th Circuit Court Issues Restraining Order STOPPING Superior, CO’s Weapon & Mag Ban

U.S.A. –-(AmmoLand.com)-— A United States District  Court for the District of Colorado has issued a Temporary Restraining Order (TRO) against the Town of Superior to prevent enforcement of their recent “assault weapon” and magazine ban, based on the Supreme Court ruling in NYSR&PA v. Bruen.  This appears to be the first of many pending cases likely to knock down laws which infringe on the exercise of Second Amendment rights under the Bruen decision.

The lawsuit was filed on July 7, 2022. The TRO was issued on July 22, 2022.

Superior, Colorado, is a town of about 13 thousand located on highway 36 between Denver and Boulder, Colorado. The outskirts of Boulder are about three miles northwest, beyond the outskirts of Superior. Superior appears to be a trendy, upscale bedroom community serving Boulder and Denver. The average home price is said to be $570k.

Judge Moore was appointed by President Obama in 2013 unanimously. The judge took the challenge by the Plaintiffs (the Rocky Mountain Gun Owners, National Association for Gun Rights, and Charles Bradly Walker) to apply to three provisions of the ordinance enacted by the Town of Superior, sections 10-9-40, 10-9-240, and 10-9-260.

From the Court TRO:

In its effort to rule on the Motion, the Court has faced two significant challenges. It is not entirely clear to the Court, based on Plaintiffs’ Motion, which precise provisions of the Amended Code they wish to challenge. The Court also notes, however, that the Amended Code is not, itself, a model of clarity. Nevertheless, based on the Motion, it appears to the Court that Plaintiffs primarily challenge three of the Amended Code’s provisions—section 10-9-40, section 10-9-240, and section 10-9-260.

The ordinance contains a laundry list of leftist talking points and dubious statistical arguments put forward by opponents of the Second Amendment.

They are, essentially, policy balancing arguments ruled inapplicable to the Second Amendment by the Constitution, specifically in the Bruen decision.  Bruen states the policy balancing arguments were decided by the people at the time the Second Amendment was adopted. Judge Moore, instead, uses the historical and cultural approach demanded by Bruen. From the TRO:

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Federal Court Strikes Down Texas Ban on Young Adults Carrying Guns in Public

A federal judge has struck down a Texas law preventing individuals aged 18 to 20 years from carrying handguns in public, in the first major court ruling on Second Amendment rights since the Supreme Court recognized a constitutional right to carry firearms in public for self-defense.

Previously, the U.S. Court of Appeals for the 5th Circuit upheld the state law, but that was before the Supreme Court issued its landmark ruling.

The Supreme Court voted 6–3 on June 23 in New York State Rifle and Pistol Association v. Bruen to strike down New York state’s tough concealed-carry gun permitting system on constitutional grounds. At the same time, the court found that laws preventing law-abiding individuals from carrying firearms in public for self-defense cannot be upheld unless they are consistent with the nation’s historical firearm regulation traditions.

Before the ruling, laws in New York and seven other states required applicants to demonstrate “proper cause” in order to obtain a license to carry a concealed handgun in public. But the high court’s ruling declared that New York’s proper-cause requirement—and by extension, the laws of the other seven states—violated the 14th Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

Some states like Maryland rescinded their proper cause requirement but other blue states have been slow to comply or have resisted the decision outright. Since the ruling, civil rights activists have filed several lawsuits aimed at reining in gun restrictions they argue are not consistent with Bruen.

On Aug. 25, in a lawsuit filed in November of last year, Judge Mark Pittman of the U.S. District Court in Fort Worth, Texas, ruled that the Texas law violates the Bruen precedent. Texas officials had argued that historical analogs justify the law.

“The issue is whether prohibiting law-abiding 18-to-20-year-olds from carrying a handgun in public for self-defense is consistent with this Nation’s historical tradition of firearm regulation,” Pittman, a Trump appointee, wrote in his opinion (pdf) in Firearms Policy Coalition Inc. v. McCraw, court file 4:21-cv-1245.

“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition. Texas’s statutory scheme must therefore be enjoined to the extent that law-abiding 18-to-20-year-olds are prohibited from applying for a license to carry a handgun.”

Pittman stayed his ruling for 30 days to give Texas an opportunity to appeal.

The Firearms Policy Coalition (FPC), which brought the lawsuit here, hailed the new court ruling.

“Texas cannot point to a single Founding Era law that prohibited 18-to-20-year-olds from carrying a functional firearm for self-defense, because not only did no such law exist, but those individuals are an important reason why we have a Bill of Rights in the first place,” FPC senior attorney Cody Wisniewski said in a statement.

“The typical age of individuals that went to war with the British for our Independence was between 17 and 20 years old. And young people have just as much a right to keep and bear arms in public as adults over the age of 21,” the attorney said.

“This decision is a significant victory for the rights of young adults in Texas and demonstrates for the rest of the nation that similar bans cannot withstand constitutional challenges grounded in history.”

The FPC said it is also pursuing lawsuits seeking to restore the right of young adults to carry firearms in California, Georgia, Illinois, Minnesota, Pennsylvania, and Tennessee.

The Epoch Times reached out for comment to Texas Attorney General Ken Paxton, a Republican, but had not received a reply as of press time.

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What this means to me is that the bureaucraps at the FBI knew they likely stood no chance of getting a ‘real’ Article 3, Federal District Judge to issue the warrant, so they went to a magistrate they could pressure to do what they wanted.

Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?

Philip Hamburger is the Maurice and Hilda Friedman professor of law at Columbia Law School, and the president of the New Civil Liberties Alliance

The Mar-a-Lago search warrant is interesting not only because of the high office of the individual whose papers were seized but also because of the low office of the person who signed it. The warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.

Leave aside how you feel about the former president. Leave aside what you think of January 6, 2021. Leave aside whether there was a good reason to issue the warrant. A more basic question is whether the Hon. Bruce Reinhart could constitutionally issue it.

Under the Constitution, a Search Warrant Must Be Signed by a Judge
The problem is that Reinhart is a so-called magistrate judge. Many commentators have focused on his personal history and political leanings, but much more significant is that he is not really a judge.

To be precise, he is not a judge of a court of the United States. The judicial power of the United States is vested in its courts. In the exercise of this power, judges of those courts can issue search warrants. But a magistrate judge is just an assistant to a court and its judges. Not being a judge of one of the courts of the United States, he cannot constitutionally exercise the judicial power of the United States. That means he cannot issue a search warrant.

The full shift of the judicial power of the United States in criminal cases to magistrate judges has been relatively recent. Only since 1968 has Congress generally authorized persons other than real judges to exercise the judicial power of the United States in trying misdemeanors (although a defendant can still insist on being tried by a real judge when charged with more than a petty offense). In addition, district courts can assign the non-judges “such additional duties as are not inconsistent with the Constitution and laws of the United States.” Only since 1990 have the non-judges been called “magistrate judges.”

Just how little a magistrate judge can be considered a judge is evident from the way he is appointed. Rather than be nominated by the president and confirmed by the Senate—as provided by the Constitution for real judges—a magistrate judge, including the one who signed the Mar-a-Lago warrant, is appointed merely by a majority of the active judges of a district court. He serves for only eight years, he can be removed for cause, and even if not removed, he always must worry that his district court will not reappoint him.

Congress, moreover, can reduce his salary. He therefore is not a judge of the court, but merely one of its servants. Like a law clerk or other assistant, he can help a judge understand the issues underlying the decision to issue a search warrant. But he should not issue it.

Anglo-American history is illuminating. An exercise of judicial power, the issuance of a search warrant traditionally had to come from one who enjoyed that power. So, in England, search warrants had to be issued by a judge or a justice of the peace, who enjoyed elements of a judge’s authority. Similarly, in early states, search warrants had to come from a judge or justice of the peace. This already suggests a difficulty for the Mar-a-Lago warrant and any other search warrant issued by a magistrate judge or anyone else who is not really a judge, but merely an assistant or adjunct to a judge.

This problem is evident not merely from history, but from the Constitution’s very text. Whereas the English and state systems let some judicial power be exercised by justices of the peace and other judicial officers who were not judges of the courts, the federal system confined the judicial power of the United States officers to the courts and their judges.

The U.S. Constitution vests the judicial power of the United States in the Supreme Court and such other courts as Congress authorizes. That is, it leaves no room for the judicial power of the United States to be exercised by any other court or any judges except those who sit on such courts. This bodes ill for federal search warrants signed by magistrate judges and other judicial officers who are not judges of the courts.

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