Category: Courts

Federal Judge Rules Felons Aren’t Protected by Second Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court Finds Geofence Warrants to be Unconstitutional

As far as potential privacy violations at the hands of law enforcement go, the so-called geofencing stands out.

It’s a dragnet-style type of mass surveillance that determines a geographical area (typically as a criminal investigation is in progress — but the authorities really could use it for anything) — and then all those who happened to be in those confines, at a given time, with their mobile device broadcasting their location and other personal data, are basically fair game for searches.

Concerning and extremely sketchy — particularly without proper legal safeguards or even proper warrants — to say the least. And to say the most, straight up unconstitutional, on account of the Fourth Amendment (protecting from unlawful searches).

The latter definition of the practice is what the California Court of Appeals has gone for when it recently ruled in the People v. Meza case, during the appeals stage of the proceedings.

While it might sound logical to observers, the court’s decision is still very significant — digital rights group EFF says — because it set a precedent, being the first time a US appellate court looked into a geofence warrant.

“Dragnet” means that instead of saying who the suspect is and going after them, their online accounts, etc., law enforcement agencies have reportedly been taking it upon themselves to go the easiest route – not to put too fine a point on it, but just “digitally round up everyone” – and then decide if any of these people were involved in a crime.

According to EFF – thanks to this vast, to say the least, database of everyone’s location – it is mostly Google who is asked to go through that data to identify users in a “geofence” delimited by law enforcement.

The Court of Appeal had problems with all this. But all is not as good as it might seem.

In the case at hand, the court found that the warrant that was operated under did not succeed in placing “any meaningful restriction on the discretion of law enforcement officers to determine which accounts would be subject to further scrutiny or deanonymization.”

The court was also not happy, to say the least, that people could be identified “within six large search areas without any particularized probable cause as to each person or their location.”

Sixth Circuit Court of Appeals Rules Against The ATF’s Bump Stock Ruling

CINCINNATI, Ohio – A three-judge panel for the Sixth Circuit Court of Appeals ruled against the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) bump stock rule in Hardin v. ATF.

The case centers around a rule made by the ATFs at the urging of then-President Donald Trump after the 2017 tragic attack on country music concertgoers in Las Vegas. The rule reclassified bump stocks as machineguns. The new rule was an about-face by the ATF, which held for years that bump stocks were not machineguns. Initially, the ATF claimed that bump stocks were not machineguns because the user pulls the trigger each time the firearm fires.

The rule change caused multiple challenges to be filed against the ATF in federal court in various circuits. The Tenth Circuit and DC Circuit Court ruled in favor of the ATF’s bump stock rule. A previous Sixth Circuit case split 8-8 on a legal challenge to the Bureau’s regulation. Because of the tie, the District Court’s decision stood, which ruled in favor of the federal government.

Continue reading “”

There is no argument. They are!

Every Firearm Can Be Used For Self-Defense! Argues the Second Amendment Foundation

BELLEVUE, WA – Attorneys representing the Second Amendment Foundation and its partners in a case challenging the Illinois semi-auto ban today filed a 36-page response to Cook County’s motion for summary judgment in a case challenging Cook County’s ban.

Joining SAF, in this case, are the Firearms Policy Coalition and three private citizens, all Cook County residents. They are Cutberto Viramontes, Rubi Joyal, and Christopher Khaya. They are represented by attorneys David Sigale of Wheaton, Ill., David H. Thompson, Peter A. Patterson, and William V. Bergstrom, all with Cooper & Kirk in Washington, D.C. The case is known as Viramontes v. Cook County. It was filed in U.S. District Court for the Northern District of Illinois in August 2021.

“Cook County has made only one argument in its motion that seems to misread the Supreme Court’s Bruen ruling from June of last year,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The county is claiming that ‘arms’ applies only to firearms that ‘facilitate armed self-defense,’ and makes the arbitrary claim that the banned firearms are excluded from this definition because ‘there is nothing defensive whatsoever’ about them.

“Every firearm can be used for self-defense,” he added, “and either the county knows that already, or they are woefully ignorant about firearms in general, and especially the ones affected by the ban.”

SAF Executive Director Adam Kraut, a practicing attorney, noted, “The Bruen ruling made it clear that every Second Amendment case must proceed first by analyzing the text of the amendment and then examining the country’s history of firearm regulation, to determine whether the banned firearm is ‘dangerous and unusual.’ One look at the number of modern semiautomatic rifles currently owned by private citizens shows they are hardly ‘dangerous and unusual’ in any context.

“The county further argues the AR-15 is a semiautomatic version of the military M-16, which is nonsense,” Kraut continued. “All of the county’s arguments seem aimed at creating a false impression about the banned firearms, which operate no differently than any other semi-auto. The county is simply wrong in its arguments, and the motion for summary judgment should be denied.”

Tesla beats Autopilot lawsuit as jury rejects crash victim’s claim.

Tesla today defeated a lawsuit that claimed its Autopilot technology caused a car crash that left the plaintiff with severe injuries.

“A California state court jury on Friday handed Tesla a sweeping win, finding that the carmaker’s Autopilot feature did not fail to perform safely in what appears to be the first trial related to a crash involving the partially automated driving software,” Reuters reported.

Justine Hsu sued Tesla in Los Angeles County Superior Court in 2020, saying Tesla’s Autopilot technology in her Model S malfunctioned and caused the car to swerve into the road’s center median so fast that she had no time to react. The lawsuit said the airbag deployed improperly during the July 2019 crash, “caus[ing] numerous breaks in Hsu’s jaw and the loss of multiple teeth.”

Hsu’s lawsuit said she had undergone three surgeries and continued to require medical treatment. “Because of the Autopilot failure, and the improper deployment of the airbags, Plaintiff Hsu suffered severe injuries, resulting in a broken jaw, broken teeth, and multiple injuries to her face, hands, and legs,” the complaint said.

Hsu sought over $3 million in damages, while Tesla argued “that Hsu used Autopilot on city streets, despite Tesla’s user manual warning against doing so,” according to Reuters. In addition to rejecting Hsu’s Autopilot claim, the jury “found that the airbag did not fail to perform safely, and that Tesla did not intentionally fail to disclose facts to her,” Reuters wrote.

Tesla is expected to face more trials over its automated-driving technology. One pending case was brought by five Texas police officers who were injured in February 2021 when a Tesla Model X in Autopilot mode crashed into police vehicles that were stopped and had their flashing lights turned on. There’s also an ongoing investigation by the National Highway Traffic Safety Administration into crashes involving Tesla cars using Autopilot.

HANSON V. DC: “LARGE CAPACITY” MAGAZINE BAN

I’ve only been up for a couple of hours (as I begin typing), and the news is already full of stupidity that I’ll need to address. I’ll lead off with a case challenging Washington, DC’s “large capacity” magazine ban, Hanson v. DC. The judge, one Rudolph Contreras, denied a preliminary injunction against the ban. His… reasoning is… remarkable. Or something; I’m trying to be somewhat polite.

A weapon may have some useful purposes in both civilian and military contexts, but if it is most useful in military service, it is not protected by the Second Amendment.
[…]
[Large capacity magazines] are not covered by the [2A] because they are most useful in military service.

Oddly, Contreras cites HELLER in making that point. I can’t find that argument in HELLER, which was largely about whether non- military weapons could be regulated, and how, but there is this.

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.

Rather the opposite of Contreras’ weasel-wording, eh? Indeed, HELLER even cites the earlier MILLER, which establishes that militarily-useful arms are protected by the Second Amendment.

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Having chucked decades of SCOTUS precedent already, Contreras proceeds to demonstrate an amazing lack of judicial awareness of current events and Supreme Court decisions. Now that he’s established in his own deluded mind that standard capacity magazines are not 2A-protected, he addresses whether this particular restriction of such magazines is permissable.

WARNING: If you’re drinking, swallow before proceeding, for the protection of your screen.

Continue reading “”

Yes. This is the continuing gambit. That something isn’t ‘covered’ by the 2nd since it’s not an ‘arm’.

Federal judge declares “large capacity” magazines not protected by the Second Amendment

A U.S. District Judge in Washington, D.C. has declined to grant an injunction against the city’s ban on “large capacity” magazines, ruling that while magazines in general are “arms” protected by the Second Amendment, LCMs fall outside of the scope of the amendment because they’re a “poor fit” for self-defense purposes.

The challenge to the District’s magazine ban, known as Hanson v. D.C., involves four legal gun owners from D.C. who all say that they would possess and carry “large capacity” magazines in their firearms if they weren’t banned by law. The District’s prohibition comes complete with a potential three-year prison sentence, though it’s unclear how often that sentence is handed down in practice, especially with D.C. prosecutors routinely deciding to decline charges in many illegal gun possession cases.

Even though the D.C. Attorney General’s office is taking a mostly hands-off approach to illegal gun (and magazine) possession, the ban remains on the books and was defended in court by D.C. officials, who maintain that magazines aren’t “arms” at all, but accessories that aren’t protected by the Second Amendment. U.S. District Judge Rudolph Contreras, an Obama appointee, rejected that argument in his opinion, but agreed with the District on its fallback argument that LCM’s are most suitable for military purposes and are not used in self-defense because “because incidents where a civilian actually expends more than ten bullets in self-defense are “vanishingly rare.” From the opinion (citations omitted):

Heller specifically contemplated that “weapons that are most useful in military service” fall outside of Second Amendment protection.

Plaintiffs counter that “the Supreme Court’s precedents do not withhold protection from arms merely because they are useful in militia service.” Pls.’ Reply at 15. That may be true, but it is beside the point. Heller established that weapons that are “most useful in military service” are excluded from Second Amendment protection. “Most” is a superlative. A weapon may have some useful purposes in both civilian and military contexts, but if it is most useful in military service, it is not protected by the Second Amendment.

I’ve gotta say, that’s giving a lot of weight to Scalia’s phrase about “weapons that are most useful in military service”, especially since Contreras contradicted himself by pointing to the benefits of LCM’s for civilian law enforcement.

Continue reading “”

Illinois assault weapons ban still in effect after appeals court denies injunction

A federal appeals court Tuesday ruled to keep an Illinois state-wide “assault weapons” ban in effect, denying a request from a business owner who claims the ban is unconstitutional.

The 7th U.S. Circuit Court of Appeals decided to uphold a lower ruling by U.S. District Judge Virginia Kendall, who found the ban to be “constitutionally sound,” despite the request for an injunction, the Chicago Sun-Times reported.

Robert Bevis, a firearms store owner in Naperville, is appealing the gun ban signed into law by Gov. J.B. Pritzker on Jan. 10. He contends it fails to meet a legal standard on what guns can and cannot be banned previously set by the U.S. Supreme Court.

Bevis requested the appeals court to block the ban for himself and other business owners affected by the law so that they can resume the sale of the impacted firearms.

Illinois Governor J.B. Pritzker signed legislation banning the sale of guns classified as assault weapons, rifle magazines capable of holding more than 10 rounds and pistol magazines capable of holding more than 15 rounds in the state on Jan. 10, 2023.

The legislation was introduced in January, six months after a shooting at the Highland Park Fourth of July parade left seven victims dead and wound more than 48 others injured.

The ban includes penalties for anyone who “Carries or possesses… Manufactures, sells, delivers, imports, or purchases any assault weapon or .50 caliber rifle.” Anyone who legally possessed such a weapon was required to register it with state police.

It also includes penalties for anyone who “sells, manufactures, delivers, imports, possesses, or purchases any assault weapon attachment or .50 caliber cartridge.” It also bans any kit or tools used to increase the rate of fire of a semiautomatic firearm.

The legislation also capped the purchase of certain magazines for several weapons.

Gov. Pritzker, a billionaire Democrat, signed the controversial bill shortly after.

The attorneys who are representing Bevis, who owns and operates Law Weapons & Supply in Naperville, Illinois, argue their client has suffered because of the ban and that he may have to close his business.

In the lower court ruling, Judge Kendall ruled that “because assault weapons are particularly dangerous weapons … their regulation accords with history and tradition,” the Chicago Sun-Times reported.

Bevis’s lawyers dispute this interpretation and instead argue earlier Supreme Court rulings clarify weapons must be found to be “dangerous and unusual” to be banned, per the report.

Because certain rifles are “commonly possessed by law-abiding citizens for lawful purposes,” they do meet the legal definition of “not unusual,” and thus cannot be banned, they argued, according to the Chicago Sun-Times.

Several legal challenges remain underway against the state’s ban.

Gun groups sue Michigan Legislature over firearm bills, alleging open meetings violations

A pair of Michigan-based pro-firearm organizations, Great Lakes Gun Rights and Michigan Open Carry, Inc., have sued the state Legislature over its passage of gun safety bills recently signed into law by Gov. Gretchen Whitmer, arguing lawmakers violated the Open Meetings Act by not properly allowing public comment on the legislation.

Last week, Whitmer signed legislation expanding background checks on firearm purchases and creating criminal penalties for gun owners who fail to keep firearms out of the hands of minors, commonly referred to as “safe storage” laws. A third proposal to temporarily confiscate guns from those deemed a risk to themselves or others by a court is also making its way through the Legislature.

The lawsuit filed Thursday in the Michigan Court of Claims aims to get a temporary restraining order against the gun safety bills and laws.

Plaintiffs allege both the House and Senate judiciary committees violated Michigan’s open meeting laws by not allowing opposition testimony during some of the hearings before the bills were voted on.

Committees in each chamber held hearings on the bills in March and April. In each, members heard mostly from supporters of the legislation. Groups, including speakers from Great Lakes Gun Rights and Michigan Open Carry, submitted cards in opposition but were unable to speak during an April 12 hearing on the so-called “red flag” bills. Lawmakers cited time constraints.

“Defendants have, and continue, to blatantly favor testimony from parties in support of Defendants’ own viewpoints while openly suppressing and outright denying testimony from Plaintiffs and others critical of Defendants’ viewpoint,” wrote Thomas Lambert, an attorney representing the gun groups in the lawsuit. “This is in direct contravention of the Open Meetings Act’s unambiguous mandate that ‘a person must be permitted to address a meeting of a public body,’ which unquestionably includes Defendants.”

The groups are seeking an ex parte motion, meaning they seek an order from the court before defendants can provide a brief of their own.

The lawsuit argues the hearings were unbalanced in terms of the number of speakers, although under both current Democratic and previous Republican leadership, committee hearings on politically contentious proposals have generally featured more speakers in favor of the position of the majority party.

The Open Meetings Act is Michigan’s law requiring public bodies to make their meetings and actions accessible to members of the public. Under the OMA, boards are required to make time for members of the public who attend meetings to speak, although they do have flexibility when it comes to making time limitations for speakers.

“The Michigan House complies with the Open Meetings Act. The groups that filed the lawsuit did participate in the committee process,” said Amber McCann, a spokesperson for House Democrats, over email. In a statement, Sen. Majority Leader Winnie Brinks, D-Grand Rapids, also said committees complied with the law.

Illinois Supreme Court justices refuse recusal in gun ban challenge despite funding from defendants
Gov. J.B. Pritzker, a defendant in the case, gave each of the 2 justices $1 million for their election campaigns.

The Illinois Supreme Court has denied a motion to disqualify two justices from hearing a challenge to the state’s new gun ban over perceived conflicts of interest. The two justices also declined to recuse themselves.

Before Elizabeth Rochford and Mary O’Brien were elected to the Illinois Supreme Court in November 2022, Gov. J.B. Pritzker gave each of their campaign funds half a million dollars from both his campaign account and a revocable trust, totaling $1 million to each. The two justices also received six-figure donations out of a campaign fund controlled by Illinois House Speaker Emanual “Chris” Welch,” D-Hillside.

Both Pritzker and Welch are top defendants in a Macon County challenge of Illinois’ gun and magazine ban brought by state Rep. Dan Caulkins, R-Decatur. The county judge there issued a final judgment that the law is unconstitutional. The state appealed the case directly to the Illinois Supreme Court after a separate case was found by the Fifth Circuit Court of Appeals to have a likelihood of success on the basis the law violates equal protections.

Late last month, Caulkins’ attorney filed a motion for the two justices to recuse themselves, or for the Illinois Supreme Court to disqualify them from hearing the challenge. Attorney Jerry Stocks argued “unreasonably large campaign contributions” from Pritzker and Welch “undermine public confidence” in the judiciary.

Asked in early March if the justices should recuse themselves because of the donations, Pritzker said that’s “ridiculous.”

Continue reading “”

Why Post-Bruen Gun-Carry Restrictions Might Backfire

Formerly may-issue states continue to thumb their noses at the Supreme Court by passing some of the country’s most restrictive concealed carry laws. In doing so, they run the risk of undermining licensing schemes altogether.

Last Monday, Maryland became the third state impacted by the Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen to pass a complete overhaul of its concealed carry laws. In a pair of bills, the state assembly greatly increased the application fees for new “wear and carry” permits, expanded its training requirements, and added new “sensitive places” throughout the state where licensed carry would be a crime. The off-limits areas include almost all publicly-accessible private property, like stores or restaurants.

The bills followed a familiar blueprint already established by states like New York and New Jersey, who were the first two states to rebuke the Court with onerous new laws. Fellow affected states, Hawaii and California, appear poised to do the same.

But those states are tempting judicial fate with their replacement laws, as evidenced by the parameters laid out by Justice Thomas in his Bruen opinion. The early track record of legal challenges to New York and New Jersey’s carry laws, where there have thus far been at least five injunctions between the two, can also attest to that fact. But even aside from the constitutional issues, on a more practical level, establishing a political norm of using licensing regimes to make exercising gun rights as difficult as possible creates new skepticism over the very idea of licensing laws.

The Supreme Court went to great lengths in its Bruen opinion to make clear that it was not yet prepared to call into question the legitimacy of standard “shall-issue” licensing laws.

“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit]’,” Justice Thomas wrote in his opinion. “Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”

This carve-out for “shall-issue” regimes was likely the result of a compromise done to mitigate political backlash and shore up support among justices. It remains unclear how “shall issue” permitting laws really fare when closely examined under the text and historical tradition test articulated later in the ruling.

Nevertheless, the American people currently are broadly in favor of that compromise. A November 2022 poll from Marquette University’s law school found that 64 percent of U.S. adults favor the New York State Rifle and Pistol Association v. Bruen ruling. Similarly, a separate Marquette poll found that 62 percent favor allowing the concealed carry of handguns with a permit or license required. Conversely, permitless carry laws routinely poll poorly despite their continued success in red states.

But that equilibrium, in which Americans broadly favor both concealed carry rights and licensing laws, could ultimately become upended if more and more states continue to make lawful carry all but impossible. If push comes to shove and one has to go, it’s more than likely that the American people (and the Supreme Court, which has tended to act only after public opinion on guns has shifted) will choose licensing laws.

The recent experience in North Carolina is a perfect example of this. For years, gun-rights advocates favored repealing the state’s permit-to-purchase law for handguns, but to no avail. Meanwhile, at least nationally, the policy continued to poll favorably among the public. However, following the COVID pandemic and a series of scandals involving local sheriffs delaying permit applications, enough political momentum was finally there to get the repeal bill through the legislature. Two years later, with improved majorities, Republican lawmakers were able to get the repeal into law after overriding a veto.

Legal rulings striking down many of these likely unconstitutional Bruen replacement laws may arrive before sentiment shifts enough to make a difference. But litigation often takes many years, and the Supreme Court has thus far shown an unwillingness to intervene in New York’s law despite its restrictions being the first enacted and arguably the most burdensome. Therefore, relief from the courts might not be in the offing for some time.

As permitless carry approaches a political wall in the near future, continued efforts by gun-control advocates to undermine workable permitting schemes elsewhere across the country risks shifting the Overton window toward more permissive gun-carry systems, whether among the general public or the courts.

Since gun-control advocates very much don’t want to see that happen, they may be forced in the near future to give up the push for restrictive “shall issue, may carry” licensing schemes.

Federal judge appears skeptical of Illinois “assault weapons”, magazine ban

U.S. District Judge Stephen McGlynn had tough questions for both sides during Wednesday’s hearing on a request to halt enforcement of Illinois’ ban on so-called assault weapons and large capacity magazines, but appeared to be skeptical of the state’s argument that the new law doesn’t infringe on the rights of state residents.

Plaintiffs’ attorney Erin Murphy was first up in challenging the ban imposed by lawmakers in early January, and handled McGlynn’s probing questions well; including this exchange over the limits of the legislature’s authority.

Continue reading “”

Litigation Highlight: Eighth Circuit Rejects Challenge to Illegal-Alien Prohibition at Bruen Step One

On April 4, the Eighth Circuit issued a published decision in United States v. Sitladeen rejecting a post-Bruen challenge to the federal ban on “alien[s] . . .  illegally or unlawfully in the United States” possessing firearms.  The decision employed a different “step one” analysis than the Fifth Circuit panel in Rahimi, ultimately focusing on status rather than conduct to determine whether the Second Amendment is implicated.  The decision in Sitladeen also relied heavily on pre-Bruen cases, illustrating the continued relevance of decisions applying Heller and using a textual-historical analysis to determine the scope of the Second Amendment.

The plaintiff, a Canadian citizen and fugitive (subject to an outstanding Canadian arrest warrant for murder), was stopped in Minnesota with 67 guns and a number of high-capacity magazines and indicted for possessing firearms as an illegal alien in violation of 18 U.S.C. § 922(g)(5).  The district court initially denied Sitladeen’s motion to dismiss under the Second Amendment, relying on the Eighth Circuit’s 2011 one-paragraph per curiam decision in United States v. Flores.  Flores held that “the protections of the Second Amendment do not extend to aliens illegally present in this country.”  That decision favorably cited the Fifth Circuit’s 2011 opinion in United States v. Portillo-Munoz upholding 922(g)(5):

Whatever else the term means or includes, the phrase “the people” in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.

After Sitladeen appealed to the Eighth Circuit, the Supreme Court decided Bruen.
The appellate panel requested supplemental briefing, in which Sitladeen argued that Bruen required the panel to overrule Flores.
The panel disagreed, holding that Flores’ step-one analysis was consistent with the first step of the Bruen test because the judges there “reached [their] conclusion by considering—consistent with what Bruen now requires—whether the conduct regulated by § 922(g)(5)(A) was protected by the plain text of the Second Amendment.”
The opinion observed that other courts have criticized this approach and argued in favor of “constru[ing] the phrase broadly at the outset of the analysis and then consider[ing] whether history and tradition support the government’s authority to impose the regulation.”
While the panel noted concern that a more probing inquiry into whether the defendant is within “the people” protected by the Second Amendment “might enable some courts to manipulate the Second Amendment’s ‘plain text’ to avoid ever reaching Bruen’s ‘historical tradition’ inquiry,” the judges ultimately read Bruen to essentially confirm the mode of inquiry in Flores.
Therefore, the panel found itself bound by Flores’ determination “that unlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend,” and rejected Sitladeen’s Second Amendment challenge.

Continue reading “”

America’s Censorship Regime Goes on Trial
Missouri v. Biden will test the government’s ability to suppress speech in the name of fighting ‘misinformation’

Ernest Ramirez, a car-wash technician in a small, south Texas town, led a simple but fulfilling life with his son, Ernesto Junior. Junior was a “wonderful child, full of smiles.” Ramirez had raised his son alone; he’d never known his own father and sought to provide Junior with the paternal love he had missed. A talented baseball player, Junior dreamed of playing professionally. The two lived paycheck to paycheck but were happy because, as Ramirez put it, they had each other.

Then, on April 19, 2021, 16-year-old Junior—who had no previous health problems—received the first dose of the Pfizer COVID-19 vaccine. Five days later, the young athlete collapsed while running. By the time the elder Ramirez arrived at the hospital, having been told he could not ride in the ambulance with his son, Junior was dead.

According to the autopsy report, the cause of Junior’s death was an “enlarged heart.” Upon receiving the news, Ramirez lost all desire to go on living. But after the initial shock subsided, Ramirez decided to travel and speak about Junior’s fate, in hopes that he could help other families avoid similar tragedies.

That plan proved more difficult than Ramirez anticipated. In September 2021, GoFundMe removed an account he had opened to raise money for a trip to the nation’s capital to share his son’s story. “The content of your fundraiser falls under our ‘Prohibited Conduct’ section,” the company’s email explained. Ramirez lost the donations he had thus far received. Two months later, Twitter took down a photograph Ramirez had posted depicting him standing beside Junior’s open casket, along with the caption “My good byes to my Baby Boy” followed by three brokenheart emojis. Even a father’s simple expression of grief was apparently forbidden by the social media platform’s government-supported censorship regime.

Around that time, Ramirez met Brianne Dressen, a 40-year-old woman who had volunteered for the AstraZeneca vaccine trials and suffered a severe adverse reaction diagnosed by the National Institutes of Health (NIH) as “post-vaccine neuropathy.” Her varied and acute symptoms at times required use of a wheelchair and drastically curtailed her ability to participate in her young children’s lives.

For a time after her diagnosis, Dressen fell into a severe depression. However, during the spring of 2021, she discovered online support groups for vaccine-injured individuals and their family members. Connecting to others who understood her plight greatly improved her outlook on life, and she began serving as an administrator of several of the groups.

But in July 2021, less than 24 hours after Dressen participated in a press conference with U.S. Sen. Ron Johnson of Wisconsin, Facebook shut down one support group’s account. Though participants had merely discussed their often-harrowing personal experiences and shared medical treatments that they found helpful, Facebook claimed they were spreading harmful “misinformation” that warranted the group’s removal.

The cascade of shutdowns of support groups and accounts belonging to the vaccine injured on Facebook and other social media platforms continues to this day. Ramirez, Dressen, and others learned that when their accounts weren’t suspended or removed, they were shadow-banned—meaning that the platforms’ algorithms buried their posts so that they were rarely, if ever, viewable, even to like-minded individuals facing similar health problems. In Dressen’s words: “The constant threat of having our groups shut down and our connections pulled apart left me and many other members and leaders frozen, unable to communicate and connect with those who needed our help the most. We spent more time managing the chaos of the censorship algorithms that continued to evolve, than we did actually helping people through the trauma of their injuries.”

The obstacles encountered by Ramirez, Dressen, and thousands of other individuals with similar experiences and opinions were in no way coincidental or accidental. Nor were they the result of a series of errors in judgment made by low-level employees of social media platforms. Rather, they were the products of concerted efforts at the highest levels of the American government to ensure that individuals with opposing viewpoints could not be heard, contrary to the guarantees made to every American citizen in the Bill of Rights. One purpose of these unconstitutional actions to violate the rights of American citizens was political gain.

As COVID-19 inoculations became widely available to the American public, the Biden White House came to view vaccine hesitancy as a significant political problem. Beginning in spring 2021, the administration explicitly and publicly blamed social media platforms for vaccine refusal: By failing to censor “misinformation” about the vaccines, the president infamously alleged, tech companies were effectively “killing people.” The president’s incendiary accusation was accompanied by threats of regulatory or other legal action (should the companies refuse to comply) from various high-ranking members of the administration, including former White House Press Secretary Jennifer Psaki, Surgeon General Vivek Murthy, and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas. Psaki boasted that government officials were in regular touch with social media platforms, telling them what and in some cases even whom to censor.

Continue reading “”

BLUF
How the Fifth Circuit and eventually the Supreme Court will rule remains to be seen, but what is clear now is the abortion-loving left is desperate to keep the truth about abortion from the public and is furious that Kacsmaryk dared to expose the reality: Abortion kills unborn humans.

Judge’s Abortion Pill Opinion Tells The Truth About ‘Unborn Humans,’ And The Left Can’t Stand It

In his 67-page straight-talking opinion, Judge Matthew Kacsmaryk stuck to the facts — something Americans desperately need to hear after decades of euphemistic discussions about abortion.

“Unborn humans.” “Eugenics.” “Head, hands, and legs, with defined fingers and toes.” “Shame, regret, anxiety, depression, drug abuse, and suicidal thoughts.”

Federal Judge Matthew Kacsmaryk’s Friday decision freezing the FDA’s approval of the abortion-pill combination, mifepristone and misoprostol, included these phrases and more. And while the left is already attacking Kacsmaryk’s 67-page straight-talking opinion in Alliance for Hippocratic Medicine v. FDA by framing it as filled with anti-abortion rhetoric, the Trump appointee stuck to the facts — something Americans desperately need to hear after decades of euphemistic discussions about abortion.

After a brief introduction in which Kacsmaryk highlighted the FDA’s two decades of stonewalling that delayed a legal challenge to the 2000 approval of the abortion drugs, the court opened with the basic facts. The plaintiffs — doctors and medical associations that provide health care to pregnant and post-abortive women and girls — sued the FDA, challenging several administrative actions related to the approval of the chemical abortion drugs.

Continue reading “”