Category: Courts

This is what I and several others who have been keeping an eye on these cases figured the court would do.

Justices Send Assault Weapon, Magazine Bans Back to Lower Courts

Several challenges to state gun laws were sent back to lower courts in light of the US Supreme Court’s landmark Second Amendment ruling limiting restrictions on firearm possession outside the home.

Known as a “GVR”—for grant, vacate, and remand—the justices often allow lower courts another shot at cases after a high court decision that could potentially change the analysis or outcome of a case.

The cases sent back Thursday include challenges to bans in New Jersey and California on high-capacity magazines that hold ten rounds or more, Maryland’s assault weapons ban, and Hawaii’s restrictions on open-carry.

In each case, the lower courts had upheld the restrictions.

The justices didn’t explain why they sent the cases back, but presumably it was to apply the new test laid out by Justice Clarence Thomas’s majority opinion in New York State & Pistol Association v. Bruen. The ruling was the Supreme Court’s first major Second Amendment case in over a decade and limited the restrictions that states can place on where gun owners can take their firearms.

Courts should look only to the constitutional text and that nation’s history of gun restrictions in determining whether a state has run afoul of the Second Amendment, Thomas wrote, adding that they should not defer to legislative determinations about whether gun restrictions are necessary for public health and safety.

“While that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here,” Thomas said.

The new test will make it harder for courts to uphold the restrictions.

The cases are Association of New Jersey Rifle and Pistol Clubs, Inc. v. Bruck, U.S., No. 20-1507, Young v. Hawaii, U.S., No. 20-1639, Bianchi v. Frosh, U.S., No. 21-902, and Duncan v. Bonta, U.S., No. 21-1194.

Restoring the Founders’ right to bear arms

Joseph Greenlee is the director of constitutional studies at FPC Law.

It may have been Justice Clarence Thomas’s 74th birthday, but he was the one delivering gifts on June 23, 2022. Namely, the restoration of millions of Americans’ Second Amendment rights. Thomas’s majority opinion in Bruen held that ordinary Americans have a right to carry arms in public, and that the proper test for adjudicating Second Amendment challenges is an analysis of “the Second Amendment’s text, as informed by history.” This holding restored the right to bear arms across the country and gives hope that many other firearm restrictions — including several that have previously been upheld by courts — will be repealed or held unconstitutional.

Bruen is a happy ending to a cautionary tale about what happens when constitutional rights are left to government discretion. The Bill of Rights — including the Second Amendment — was designed to ensure that certain rights were placed beyond the reach of the federal government. The Fourteenth Amendment created the same distance between Second Amendment rights and state governments. Nevertheless, six states granted themselves the power to decide on a case-by-case basis through “may-issue” licensing regimes whether residents really needed the right to bear arms. This resulted in government depriving millions of Americans of a fundamental right it had no authority to deny.

To exercise their right to bear arms, the Bruen petitioners had to convince a licensing officer that they had “a special need for self-protection distinguishable from that of the general community.” When the licensing officer determined that their need for self-protection was not special enough, they challenged the constitutionality of the licensing law. But the Second Amendment test applied by the lower courts reviewing their license denials was simply another inquiry into whether the petitioners’ self-protection interests were special enough to outweigh the government’s interest in prohibiting them from carrying. Again, according to the government, they were not.

Until Bruen, this judicial interest-balancing test — the “two-part test” — was the prevailing test throughout the lower courts. In part one, the court determined whether the challenged law burdened the Second Amendment’s original scope. If so, in part two, the court balanced the challenger’s interest in exercising that aspect of the right against the government’s interest in regulating it.

This test resulted in nearly every challenged firearm restriction across the country being upheld during its 12-year reign. By the time Bruen was decided, with few exceptions, the lower courts had essentially limited the Second Amendment to protecting the possession of handguns in the home — the narrowest possible reading of District of Columbia v. Heller, which struck down prohibitions on handguns and functional firearms in the home. This incremental nullification of the Second Amendment led some judges to call it “the Rodney Dangerfield of the Bill of Rights.”

Despite several justices’ repeated objections, lower courts continued “resisting th[e] Court’s decisions” and treating “the Second Amendment as a disfavored right.” As Justice Samuel Alito noted in his Bruen concurrence, the Supreme Court saw how manipulatable the two-part test was the last time it agreed to review a Second Amendment case. In 2018, the U.S. Court of Appeals for the 2nd Circuit upheld under the two-part test New York City’s law preventing residents from taking their handguns outside city limits. But once the Supreme Court granted cert, the city conceded that the law did not benefit public safety and repealed it to moot the case.

Bruen rightly invalidated the two-part test and returned the Second Amendment to its original form by reaffirming a test based on text and history. In applying that test to strike down New York’s discretionary licensing regime, the court provided the following guidance to lower courts, which offers insight into what other laws may be unconstitutional.

  • Courts must first analyze the Second Amendment’s text, and then consult history to determine whether the regulation is consistent with America’s tradition of firearm regulation.
  • While historical material from before, during, and after the Founding may be considered, the Second Amendment’s “meaning is fixed according to the understandings of those who ratified it.” Moreover, “not all history is created equal.” Founding-era history is paramount; 20th century history is irrelevant.
  • Applying the original understanding of the right to modern regulations will often involve reasoning by analogy. The challenged law cannot be more burdensome than the analogous law, which must be well-established in American history.
  • The government carries the burden of proving that the regulation is constitutional. This burden is significant. It requires more than what the government produced in Bruen, including three colonial restrictions, several 18th and 19th century laws that are related but not directly analogous, a statute and a pair of state-court decisions from the late-19th century that are directly analogous, and a handful of pre-statehood restrictions from western territories.
  • “Shall-issue” licensing regimes, as they currently exist in 43 states, likely comply with the Second Amendment by allowing all ordinary Americans to publicly carry firearms. But overly burdensome regimes, including any that involve lengthy processing times or exorbitant fees, are unconstitutional.

In his dissent, Justice Stephen Breyer criticized the court for applying a test that “refuses to consider the government interests that justify a challenged gun regulation.” “The Constitution contains no such limitation,” he claimed. But the Constitution is the limitation. As the majority explained, “the Second Amendment is the product of an interest balancing by the people, not the evolving product of federal judges,” and it “elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”

Because firearms are far more regulated today than at any other point in American history, a fair application of Bruen should result in the invalidation of many burdensome and ahistorical laws. Included in these invalidated restrictions should be most of those that lower courts scrutinized under part two of the two-part test after determining that they burden the right’s original scope in part one.

In addition to restoring the Founders’ Second Amendment and reinstating the inalienable right to bear arms for millions of Americans, Bruen has effectively reset Second Amendment law after a decade of dismissive treatment by lower courts.

The Supremes are Back – Making the Constitution Great Again

Diana Ross and the Supremes were one of the biggest Motown musical groups in the 1960s. By 1970 they went their separate ways, but this past week, their informal namesakes scored a mega-hit. Not singing catchy pop tunes, but by dancing in their black robes, singing glory and praise to the United States Constitution, making it great again.

I speak of the US Supreme Court, finding their constitutional voices on two major issues that have polarized and divided Americans for decades. SCOTUS was not created to make law or decide controversial social or policy issues. In a constitutional republic, those issues are decided by the people, or their elected representatives, not by unelected, lifetime appointed judges.

Instead, SCOTUS’s role is to determine whether laws passed by the legislative branch or administrative decisions emanating from the executive branch are constitutional. From the SCOTUS website,

The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

While Diana Ross and her Supremes sang, “Stop in the name of love”, Clarence Thomas and his Supremes did a remake, “Stop in the name of law”, specifically the US Constitution. Two big decisions in two days. Was this “The Storm” that President Trump once predicted? Or just a “boom-boom” end to a week where we saw another two booms — the President falling off his bicycle then showing off his cue card telling him, as one would a young distractible child, where to sit, as in “YOU take YOUR seat” and when to get up and leave as in “YOU depart”.

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Bruen’s Originalist Analogical Reasoning Applies A Presumption of Liberty

Justice Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen may be the most important originalist opinion of all time. Its significance surpasses Heller, Crawford, and any other decision that came before it. Rather than trying to cram originalism into pre-existing standards–such as the tiers of scrutiny or a two-step test–Thomas starts from first principles. He employs originalist analogical reasoning. The Court instructs lower courts to determine the validity of a modern-day gun restriction by considering analogous restrictions in the past. But this mode of reasoning is weighted against the government, and follows a presumption of liberty. The state has the burden to justify that its restriction has historical analogues. And more importantly, the government cannot rely on sparse or attenuated historical analogues to meet its burden. Even if the evidence is at equipoise, the tie goes to freedom.

The majority opinion in Bruen methodically walks through this framework, illustrating how to apply it in different contexts.

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SCOTUS still holding these cases is a little puzzling.

SCOTUS holds on to gun, magazine ban cases pending in conference

I was hoping that after last Thursday’s historic decision in New York State Rifle & Pistol Association v. Bruen the Supreme Court might choose to put an exclamation point on its opinion by granting cert to at least one of the four Second Amendment-related cases that have been pending in conference, but instead the justices are keeping those cases in conference for at least another week.

Is this something to be concerned about? Not necessarily. Over at SCOTUSblog, reporter Amy Howe reminded readers that while last week “was the court’s last *scheduled* conference, but the court traditionally holds what we call the “clean-up conference” after all of the opinions have been issued — whenever that is, because the court has not yet announced when that day will be.”

This week will likely mark the release of the last cases of this term, so maybe we’ll see the Court take action on these four cases in the “clean-up” conference. I have a hard time with the idea that the justices are going to let these four cases dangle in the wind for several more months, especially when they don’t have to grant cert but can simply remand all of the cases down to the lower courts with instructions to follow the “text, history, and tradition” test laid out by Justice Thomas in the Bruen opinion last week.

Two of the four cases currently in legal limbo deal with bans on so-called large capacity magazines; Duncan v. Bonta takes on California’s ban while Association of New Jersey Rifle & Pistol Clubs v. Platkin challenges a nearly identical law in New Jersey. Both laws require existing owners of magazines that can hold more than ten rounds of ammunition to either permanently modify them, hand them over to law enforcement, or remove them from their possession. The third case is Bianchi v. Frosh, which argues that Maryland’s ban on “assault weapons” is unconstitutional, while the final case (Young v. Hawaii) challenges that state’s “may issue” policy for granting permits to openly carry a firearm.

In all of these cases the appellate courts (and the state Attorneys General defending the laws) relied on the interest-balancing test rejected by SCOTUS in Bruen, arguing that government could ban these commonly-owned magazines because of a public safety interest, even though the laws implicate the Second Amendment rights of law-abiding gun owners. The Court rejected that test in both the Heller and McDonald cases dealing with bans on handguns in the home, but Thomas was even more explicit about the criteria lower courts should use to evaluate the constitutionality of gun control laws in Bruen.

The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”

To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.

If the lower courts abide by the SCOTUS ruling (a big “if”, to be sure) then there’s not much doubt about the ultimate outcome of these cases. The Court has certainly hinted that semi-automatic rifles and 10+ round magazines, which are both in common use today, are protected by the Second Amendment, and it’s hard to point to any sort of comparable ban in either the text or the tradition of the Second Amendment. No state banned revolvers or repeating rifles when they first came on the market, even though they represented huge technological advancements in terms of both capacity and the rate of fire. It wasn’t until the last 30 or 40 years that the gun control lobby convinced blue state lawmakers to impose these types of bans, which are still the exception and not the rule when it comes to state-level gun control laws.

I continue to hope that the Supreme Court will grant cert to one or more of these cases, though the most probable outcome is that the Court ends up remanding all of these cases back to lower courts for further review. We’ll be anxiously awaiting the Court’s orders from its “clean-up conference”, and we’ll also be getting the thoughts of California Rifle & Pistol Association president and Second Amendment attorney Chuck Michel later today when he joins Bearing Arms’ Cam & Co to talk about the impact of the Bruen decision on California’s many anti-gun statutes.

How Alito’s concurrence smashes gun control

The Bruen decision is an interesting, one. Not only does Justice Clarence Thomas lay down the law–literally, in this case–on the Second Amendment, but there are a couple of concurring opinions. Cam talked about the Kavanaugh concurrence last week.

But Justice Samuel Alito also wrote a concurring opinion and, in part, it can be read as a refutation of so many gun control arguments as a whole.

But Justice Samuel Alito, in his concurrence supporting the court’s ruling, made precisely the point that we’ve repeatedly been making. Not only are the statistics Breyer cites irrelevant to the constitutionality of the law, but they are also not responsive to the problems of widespread gun ownership that this law supposedly aims to solve.

Here are his comments, with the citations removed:

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.

The dissent cites the large number of guns in private hands — nearly 400 million — but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Alito is making practical observations here about the effectiveness of the law, and he is spot on. The relevant question here is what exactly do you expect the law to do? Gun-control laws are big over-promisers. Amid a mess of emotional argumentation, few people ever actually do the thinking about what a given measure is going to accomplish in the real world.

However, Alito’s comments, while directed at the dissenting opinion, provide such an incredible rebuttal of what we see from gun control as a whole.

For example, Breyer’s dissent essentially puts all gun-related problems into a single bucket, then acts as if any gun control measure you care to name will work in reducing all of those issues.

Take the bill President Biden just signed, as an example. None of that would have prevented either Buffalo or Uvalde, yet it was passed in part as a response to those. The dissent included statistics about suicide and domestic violence in a case that’s clearly about whether we have the right to carry a firearm outside of the home. As Alito noted, it makes no sense to view it that way.

But that is how gun control is generally packaged. It’s presented as the answer to all of life’s problems, so to speak, despite the fact that suicide is a mental health issue and domestic violence is a problem that exists well beyond firearms, just to use two of the stated examples.

Frankly, it’s ridiculous, but so is the idea of gun control itself.

The Five Reasons SCOTUS Overturned Roe and Casey

It’s long but read the whole thing

The Supreme Court’s opinion released Friday is the culmination of decades of work by pro-life activists and comes amid an unprecedented level of hostility toward members of the high court who believed that the “right” to abortion created in Roe and revised in Casey was based on flawed legal reasoning. While the left is already planning for a “night of rage” in response to the decision overruling Roe that merely returns abortion policy-making power to the people and their elected representatives, here’s what Justice Alito said were the five factors that weighed strongly in favor of overturning Roe and Casey.

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Quote of the day—Justice Samuel Alito

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).1

The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. See post, at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Justice Samuel Alito
June 23, 2022
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.

[I suspect that to Alito these are actually rhetorical questions.]
By now it should be increasingly clear anti-gun people are not rational. To many of them it is perfectly obvious that if someone, not an authorized government employee, possesses a gun they are “a bad guy”. That is their default way to determine good from evil. If someone has a gun they are evil and/or have intent to do evil, and should be taken into custody to prevent the crimes which they know will happen. That we want private citizens to be able possess guns is blindingly obvious proof that we want to create more criminals and crime. It’s “common sense” to them. No further discussion is needed.

And it happens at the Supreme Court of United States of America.

That is how messed up and prevalent their thinking is. It is how they justify summary execution and genocide for gun owners.

SCOTUS decision has implications far beyond the right to carry

While the main focus of today’s decision in New York State Rifle & Pistol Association was on New York’s “may issue” carry laws, the 6-3 decision authored by Justice Clarence Thomas casts doubt on a number of other anti-Second Amendment laws on the books from California to New Jersey, including bans on so-called assault weapons and “large capacity” magazines.

Writing for the majority, Thomas declared that not only is New York’s law invalid, but the two-step test used by the Second Circuit to determine the constitutionality of the law is unacceptable and should not be used by any lower court. From the opinion:

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying meansend scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

… Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.

… In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Is there an historical tradition of banning commonly-owned firearms in the United States? Nope. There was no 19th century equivalent to Everytown for Gun Safety calling for bans on revolvers when they were first introduced, or repeating rifles when they became widely used and commonly-owned a few decades later, much less widespread adoption of laws banning those firearms. Even fully-automatic machine guns weren’t banned under the provisions of the National Firearms Act, though owners were required to pay a $200 tax stamp and register their machine gun with the federal government.

The same holds true for banning magazines based on their capacity. No state banned the Henry repeating rifle because you could “load on Sunday and shoot all week“, and bans on detachable magazines didn’t really appear until the 1980s and are still only in place in a handful of states. These aren’t “longstanding” prohibitions and they’re not widespread either, so the argument that they don’t comport with the history, text, or tradition of the Second Amendment is a pretty easy one to make.

As it so happens, the Supreme Court has been holding on to several other 2A-related cases in conference while the Bruen case was being decided, including two cases dealing with magazine bans in New Jersey and California, as well as a challenge to Maryland’s ban on AR-15s and other semi-automatic rifles. The Court could decide to accept one or more of these cases, or it could choose to send them back down to the appellate courts with instructions to follow the proper test laid out in the Bruen decision, but either way they’re not going to be kept in limbo for much longer. The next day for the Court to release its orders is next Monday, and that’s when we’re likely to learn if the Court is going to accept another potentially blockbuster 2A case directly, or give lower courts the opportunity to follow its instructions on the proper constitutional test for gun control laws.

In case you forgot…………..

June 23

2022 – In the case of NYSRPA v. Bruen, the Supreme Court rules that the New York gun control Sullivan Act of 1911, requiring applicants for an unrestricted license to carry a concealed pistol on their person to show “proper cause” is unconstitutional, and effectively that the public possession of pistols is a constitutional right protected by the Second Amendment

This analysis is from a person who states they practiced Constitutional Law in D.C. Take is for what it is, but it appear quite reasonable to me.

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home.

This is important because the antis continue to argue militia service is required.

This case finds that the Second Amendment applies to PEOPLE and that militia participation is not a requirement to exercising your 2A rights.

“Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context.”

Basically the Court is saying, look at the plain text of the 2A and the history that followed. That’s it. No balancing whether the government has a reason for the infringement. An infringement is an infringement and the law is unconstitutional if it infringes upon the 2A.

We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

“After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” to carry arms in public.”

And here the Court finds that history does not support regulation like NYC has in place.

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach.

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Again, NO scrutiny – merely, does this violate 2A? Yes or no.

“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

Here’s your standard, folks.”

The constitutional right to bear arms in public for self- defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need.”

“And one scholar who canvassed 19th-century newspapers which routinely reported on local judicial matters, found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement.”

I’ll say it louder for those in the back:

Gun control has its origins in racism.

New York’s cannot characterize NYC a “sensitive-place” because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.

Remember folks: the Supreme Court has repeatedly ruled that the police have no obligation to protect you.

“Certain locations are sensitive places where arms carrying could be prohibited consistent with the Second Amendment.”

NYC as a whole is not one of these places.

“Expanding the category of sensitive places to simply all places of public congregation that are not isolated from law enforcement defines the category of sensitive places far too broadly. Respondents argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self defense.”

“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”

This is an originalist/plain view reading of the 2A. The Court goes on to shred NY’s arguments that historical regulations existed, citing that those regulations generally limited “dangerous or unusual” weapons or that they restricted using weapons to spread “fear and terror.”

“To confine the right to bear arms to the home would nullify half of the Second Amendment’s operative protections.“

They then proceed to call out America’s largest open-air shooting gallery:

“A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self- defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”

Boom. Headshot.

“The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

So essentially, they’re not just ripping up NYC’s licensing scheme – they’re canning the entire pistol permit (and now rifle-permit under the newest Hochul-signed law) scheme. They’re saying NYS (and the five others) cannot have a “may issue” and need to switch to “shall issue.”

Unfortunately, they do uphold a State’s right to require permits:

“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.”

“Because these licensing regimes to 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.”

The last sentence of that footnote about “shall-issue” licensing (FN 9) could become very significant:

“because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry”

 

Here it is….finally.

From a quick reading,
1, ‘May Issue’ concealed carry permits are o-u-t.
2, The test of whether a law is constitutional or not is only ‘Text and Historical Understanding’. Any judicial level of ‘scrutiny’ is not applicable. (see ‘Against the Tiers of Constitutional Scrutiny’ )
I’m not legal beagle enough to speculate on what #2 is going to do to gun law in the U.S., but if even ‘strict scutiny’ can’t be applied, I don’t see how any but a few gun control laws can ever be considered constitutional.
I’m surprised Chief Justice Roberts, assigned Justice Thomas’ to write the decision and still signed onto it. There was a lot of speculation on how squish he might turn out to be.

NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW
YORK STATE POLICE, ET AL.

https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

bruen

Virginia jury finds smoke shop employee not guilty of malicious wounding for shooting burglar

An Arlington jury has found a store employee not guilty in the shooting of a burglar, in a case that received national media attention.

It all started with a burglary of the Arlington Smoke Shop, at 2428 Shirlington Road in the Green Valley neighborhood, shortly before 5 a.m. on March 29, 2020. Three masked suspects allegedly broke into the store and started stealing cash and merchandise.

Shop employee Hamzeh Abushariah was sleeping in a back room of the store at the time due to Covid concerns at his D.C. apartment building. Prosecutors alleged that Abushariah grabbed a gun and shot one of the suspects, who was under the age of 18, point blank in the back.

Abushariah was arrested and charged with Malicious Wounding, Reckless Handling of a Firearm and Violation of a Protective Order. Two juvenile suspects, including the one who was shot and seriously injured, were later charged in connection to the burglary.

The Reckless Handling of a Firearm charge was dismissed in April, court records show, a week after Abushariah was levied with a contempt charge for misbehavior in court. The protective order charge remains active, with a hearing set for this coming Tuesday.

But yesterday, after a trial in Arlington Circuit Court that started on Monday, a jury found Abushariah not guilty of Malicious Wounding, the most serious charge.

“I can’t even explain how happy I am,” Abushariah told ARLnow. “I’m home with my family. There’s nothing like being free especially when you know you’re innocent.”

Jowan Zuber, the owner of the store who has appeared several times on Fox News’ Tucker Carlson Tonight in defense of Abushariah, said the verdict was vindication.

“I broke down when the verdict, all 12 jurors, came [back] not guilty, self-defense,” Zuber said. “So they saw that the Commonwealth had no evidence holding Hamzeh Abushariah for two years, no evidence, taking him away from his kids and his livelihood when we’ve been fighting.”

He said that video played during the trial showed that it was dark in the store when the break-in occurred.

“So when he shot, he did not know where he was aiming,” said Zuber. “[Prosecutors] really hurt this guy big time.”

He said the verdict brings relief for Abushariah’s family after “two years of nightmare going back and forth.”

“The suffering, the tears that my wife, my kids, my family, my sisters, my parents, it’s not cheap, it’s not nothing. It’s something, it means a lot to me,” Abushariah said.

Abushariah was in jail for several months after the shooting, then released on house arrest for four months before he was arrested again, Zuber said. He has been in jail since, before being released around 6 p.m. Wednesday night.

Both Zuber and Abushariah thanked the jury and said they had to mention defense attorney Robert Marshall’s work on the case. In a video posted to Facebook, Abushariah reunites with his family leaving jail as Zuber says it’s all thanks to Marshall.

“We believed in [Marshall] since day 1, and he just went and just showed what the righteous is about and showed that we shouldn’t protect criminals and you have the right to protect yourself when people are coming to hurt you or break in in a violent way,” Zuber told ARLnow. “This is very bad for Arlington because we are here as citizens, we pay our taxes, and we want to protect the good people, not the bad… The jury, the people, made this happen.”

Parisa Dehghani-Tafti, Commonwealth’s Attorney for Arlington and Falls Church, provided a brief statement to ARLnow.

“As always, we respect the verdict and thank the jurors for their service,” the county’s top prosecutor said.

In response to additional questions from ARLnow, Tafti declined to provide other details about the case and the end result of the charges against the two burglary suspects.

“These were juvenile dispositions, and therefore not public record,” she said.

Newly free, Abushariah said it’s nice to see his children, and the green grass and enjoy the weather and good food.

“The smallest things mean so much when you’re free,” he said. “The smallest things in life matter.”

He said he wishes the person he shot well.

“I hope his life will get better, that he will recover, both of us will,” he said.

In other words, New York goobermint is going obstruct every step along the way. Seems they forgot that D.C. tried that after the ‘first’ Heller case and it got them ‘Heller 2’ which basically turned D.C. into not just a ‘shall issue’, but you will issue CCW permits.

Sources say if Supreme Court overturns New York gun carry law, new rules could take years to implement

NEW YORK — The Supreme Court is on the verge of ruling on a case that could overturn New York state’s gun carry law. Records obtained by CBS2 show as many as 20,000 more guns could inundate the streets of the Big Apple, following such a decision.

But a high-ranking source tells CBS2’s Marcia Kramer it could take the city years to comply.

Here’s the good news: the NYPD already has a four-point plan to try to limit both the number of guns and the places it will be legal to bring them if the high court overturns our strict gun laws. The bad news is that more people may seek to get guns.

“The NYPD has always been quite careful about who they give permission to to carry guns and that has really kept the number of people carrying guns, lawfully, way down,” said Richard Aborn of the Citizens Crime Commission.

Aborn is right when he says the NYPD has been careful, and some say admirably stingy, when it comes to issuing gun permits that allow New Yorkers to carry concealed weapons on the streets of the city.

CBS2 has learned that at present only about 1,700 people have the right to carry a gun when they leave home and 1,400 more have carry licenses issued by other counties that need New York City endorsement to carry in the five boroughs.

But with the Supreme Court poised to overturn New York’s strict gun carry laws, the big worry is the people who have been issued permits to have guns in their homes, which can also be used on a firing range. Conceivably, they could be turned into concealed carry permits because of the Supreme Court decision.

CBS2 has learned that:

  • 16,462 city residents have so called “premise residence” permits
  • 773 have “premise business” permits
  • 2,403 have “carry guard” permits that can be carried while working but have to be left at the place of business at the end of the shift

John Miller, the NYPD’s deputy commissioner for intelligence and counterterrorism, told CBS2 in a memo that a ruling against New York, “… does not mean that you wake up the morning of the ruling and the premises permit magically turns into a carry.”

Depending on the ruling, it could take New York a year or two to implement, Miller says, especially if the court allows New York to limit the places a gun can be carried, so-called “sensitive places.”

“The question becomes: what constitutes a sensitive place? So I think there are some obvious ones. Places where large numbers of people gather. Mass transit, the subway, stadiums, theaters, movie theaters, probably schools, probably houses of worship,” Aborn said.

“Is it going to be Miss Kitty’s on ‘Gunsmoke’? Check your guns at the door?,” Miller asks. “The reality is that other states that have gone to unrestricted carry licenses have had a shared experience of people who can’t bring them in certain places, leaving them in cars and the guns being stolen in car break-ins. That just recycles legal guns into the hands of criminals.”

“There is a question about whether or not the city will be able to restrict people from locking guns in their car. That’s important because the thing we don’t want to do is encourage an increase in car break-ins,” Aborn added.

So if New York loses in the Supreme Court, which many here think is a foregone conclusion, the NYPD and the mayor would have to figure out how to adjust their permit rules. Aborn says another concern is whether relaxed permit rules will spark a demand for new permits from people who now don’t own a weapon.

Well, I’m actually a bit surprised. Pelousy apparently got the word to get the SCOTUS security bill voted on.

27 Dems voted against increased security for Supreme Court justices days after Kavanaugh threat

The House passed a bill Tuesday to increase security for Supreme Court justices’ immediate families, with 27 Democrats voting against, less than a week after a man was arrested for allegedly plotting to kill Justice Brett Kavanaugh.

The bill that’s now headed to President Biden’s desk for final approval provides for 24-hour protection for Supreme Court justices’ families, similar to what is already provided for some members of the executive and legislative branches.

The House voted 396-27, approving a measure that had already been passed by unanimous consent in the Senate in May just days after a leaked draft Supreme Court opinion suggested it intends to overturn Roe v. Wade.

Democrats who opposed the bill argued that it also needed to include protection for court staff, including clerks, and their families.

Rep. Alexandria Ocasio-Cortez, D-N.Y., boasted in an Instagram video on Saturday about initially blocking the bill.

“I wake up this morning and I start to hear murmurs that there is going to be an attempt to pass the Supreme Court supplemental protection bill the day after gun safety legislation for schools and kids and people is stalled,” she said in the video. “Oh, so we can pass protections for us and here easily, right? But we can’t pass protections for everyday people?” she continued. “I think not.”

All those who voted “no” on the Supreme Court Police Parity Act on Tuesday were Democrats. They are:
Rep. Joyce Beatty, D-Ohio
Rep. Jamaal Bowman, D-N.Y.
Rep. Cori Bush, D-Mo.
Rep. Veronica Escobar, D-Texas
Rep. Adriano Espaillat, D-N.Y.
Rep. Chuy Garcia, D-Ill.
Rep. Sylvia Garcia, D-Texas
Rep. Joshua Gottheimer, D-N.J.
Rep. Raúl Grijalva, D-Ariz.
Rep. Steven Horsford, D-Nev.
Rep. Pramila Jayapal, D-Wash.
Rep. Brenda Lawrence, D-Mich.
Rep. Barbara Lee, D-Calif.
Rep. Tom Malinowski, D-N.J.
Rep. Marie Newman, D-Ill.
Rep. Alexandria Ocasio-Cortez, D-N.Y.
Rep. Bill Pascrell, D-N.J.
Rep. Donald Payne, D-N.J.
Rep. Ed Perlmutter, D-Colo.
Rep. Ayanna Pressley, D-Mass.
Rep. Mikie Sherrill, D-N.J.
Rep. Albio Sires, D-N.J.
Rep. Rashida Tlaib, D-Mich.
Rep. Norma Torres, D-Calif.,
Rep. Nydia Velazquez, D-N.Y.
Rep. Maxine Waters, D-Calif.
Rep. Bonnie Watson Coleman, D-N.J.

Observation O’ The Day

On the one hand, this is despicable. On the other, as the Court ponders Second Amendment rights, it’s an illustration of how the authorities withhold police protection from unpopular groups, using the threat of tolerated “private” violence to serve their own ends. A good reason to be able to defend yourself.
–Professor Glenn Reynolds

Pelosi again declines to pass SCOTUS safety bill.

It Seems the Democrats Kinda Sorta Want a Conservative Justice to Get Killed.

As we sit around waiting for Gropey Joe Biden to denounce the assassination attempt of Justice Kavanaugh, it becomes obvious why he hasn’t. He and the bolshie Democrats seem to want a conservative justice from the Supreme Court of the United States (SCOTUS) to die or retire. That would make the commie takeover almost complete. And what better way to make that happen than to make it easy to do?

FAST FACTS:

  • A SCOTUS memo about kicking the abortion debate back to the states was leaked earlier this year. Protestors began to march outside the homes of various conservative justices.
  • The Biden admin refused to denounce the protesting taking place at the homes of the justices.
  • A man armed with a gun, knife, pepper spray, and zip ties was arrested outside of Justice Kavanaugh’s house.
  • The Senate unanimously voted for more security for SCOTUS justices but House Democrats refuse to advance the bill.

“This is where we are,” Senate Minority Leader Mitch McConnell stated from the floor of the Senate: “An assassination attempt against a sitting justice or something close to it.” McConnell continued, “This is exactly the kind of event that many worried that the unhinged, reckless, apocalyptic rhetoric from prominent figures ​toward the court ​going back many months, and especially in recent weeks, could make more likely.” ​

When McConnell said “unhinged, reckless, apocalyptic rhetoric from prominent figures ​toward the court​ ​going back many months,” he was likely referring to New York’s leading shape-shifter, Chuck Schumer.

But House Democrats, in a new and yet unsurprising level of slimy, lizard-person-like turpitude, have decided to sit on their filthy hands rather than protect conservative justices. What could go wrong?

For starters, anyone who watched the Democrats’ brownshirts, Antifa and BLM, torch the country with near impunity realizes that killing, burning, and looting is okay for Team Donkey.

Lefty politicians and district attorneys made anarchy easy for the rioters. Leading Democrats like Kamala Harris were eager to assist the Marxy frondeurs.

PINKO-RAMA! Almost 50% of Portland rioters who were arrested had their federal charges dropped. Awww, did some poor Antifa prags get cuffed? That’s okay, Kamala Harris pimped for some mad stacks to get those insurrectionists bailed out of the hoosegow.

Most of the mainstream news peeps are ignoring the fact that the die-hard leftist whackjob who traveled from California to kill Kavanaugh had zip ties with him. He wanted people bound and defenseless. Perhaps killing wasn’t the only demonic plan he had in mind.

The would-be assassin, comrade Nicholas Roske, told the FBI he wanted to kill Kavanaugh because he was upset over the Dobbs v. Jackson leak and the Uvalde shooting as well. He believed Kavanaugh would loosen gun control laws. Never mind that the Supreme Court doesn’t “loosen” laws.

Conservative justices have a target on them. Here’s why:

  • The president refuses to condemn the protesting taking place outside of the justices’ homes.
  • House Democrats are stalling more security for justices.
  • Local law enforcement officials refuse to arrest the protesters, despite the attempt on Kavanaugh’s life, and even though protesting outside a SCOTUS justice’s house is illegal.

Biden, House Democrats, and even the local cops (or whoever is telling them to stand down) are creating the perfect storm for an assassination. On every level, the justices are sitting ducks.

None of this is an accident. It’s the next step in the Democommies’ plan to take over the United States. If a conservative justice resigns or dies, the Democrats have full control.

It’s gonna be a hot summer.

Assault Weapons Not Protected by Second Amendment, Federal Appeals Court Rules

ANNAPOLIS, Md. — Maryland’s ban on 45 kinds of assault weapons and its 10-round limit on gun magazines were upheld Tuesday by a federal appeals court in a decision that met with a strongly worded dissent.

In a 10-4 ruling, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, said the guns banned under Maryland’s law aren’t protected by the Second Amendment.

“Put simply, we have no power to extend Second Amendment protections to weapons of war,” Judge Robert King wrote for the court, adding that the Supreme Court’s decision in District of Columbia v. Heller explicitly excluded such coverage.

Maryland Attorney General Brian Frosh, who led the push for the law in 2013 as a state senator, said it’s “unthinkable that these weapons of war, weapons that caused the carnage in Newtown and in other communities across the country, would be protected by the Second Amendment.”

“It’s a very strong opinion, and it has national significance, both because it’s en-banc and for the strength of its decision,” Frosh said, noting that all of the court’s judges participated.

Judge William Traxler issued a dissent. By concluding the Second Amendment doesn’t even apply, Traxler wrote, the majority “has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.” He also wrote that the court did not apply a strict enough review on the constitutionality of the law.

Continue reading “”

Lawsuit Against [Washington State] Large Capacity Magazine Ban Names Sheriff Scott And Judge Svoboda

A lawsuit that looks to prevent Washington’s ban on the sale and manufacture of large-capacity magazines from taking effect has been filed against Grays Harbor Sheriff Rick Scott, Grays Harbor Superior Court Judge Katie Svoboda, Attorney General Bob Ferguson, and others.

The lawsuit by Gabriella Sullivan, Rainier Arms, LLC, Second Amendment Foundation, and Firearms Policy Coalition, Inc. was filed in U.S. District Court on Friday.

In court paperwork, the plaintiffs seek an injunction to prevent Senate Bill 5078 from taking effect on July 1 and they are “compelling Defendants to refrain from enforcing the invalid ban”.

The bill would place the ban on manufacturing, importing, distributing, selling, or offering for sale ammunition magazines capable of holding more than 10 rounds of ammunition.

Violating the “large capacity magazine” ban would be a gross misdemeanor punishable by up to 364 days imprisonment and a fine of up to $5,000.

The plaintiffs allege that this violates the Second and Fourteenth Amendments.

Continue reading “”

First Lawsuit Filed Against Washington State Ammo Magazine Ban

Washington state gun owners will continue to enjoy a full selection of ammunition magazines if a pair of national gun-rights groups get their way in court.

The Washington-based Second Amendment Foundation (SAF), along with the Firearms Policy Coalition (FPC), filed a lawsuit against Washington Attorney General Bob Ferguson (D.) and several other officials in federal court on Friday. The suit alleges that the state’s recently passed ban on the manufacture and sale of magazines capable of holding more than 10 rounds is unconstitutional.

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

Attorney General Ferguson’s office did not respond to a request for comment.

The lawsuit arrives just as the national conversation surrounding gun laws has reignited. A successful verdict for the plaintiffs would undo a policy long sought after by gun-control activists just as they’ve begun to make a new legislative push at the federal level and in several states across the country. Such a ruling could deal a blow to President Joe Biden’s (D.) policy aspirations. The President has long favored a national ban on ammunition magazines capable of holding more than 10 rounds.

The suit marks just the latest challenge to restrictive state legislation by a national gun-rights group. Such groups have long intervened in states where political opposition to gun control is generally limited by the partisan breakdown of local legislatures.

“This is another important case in our FPC Law strategic litigation program that seeks to restore the right to keep and bear arms for all peaceable people,” Brandon Combs, President of FPC, said in a press release. “The State of Washington is not exempt from the Constitution.”

The plaintiffs argue that the new Washington law erroneously dubs certain magazines “high-capacity” when they in fact often come standard with many common rifles and handguns on the civilian market. They also claim a ban will not produce any noticeable public safety benefit.

“As we note in the lawsuit, there is no reliable proof that restrictions on new manufacturing or sales of such magazines will reduce violent crime,” Alan M. Gottlieb, SAF founder, said in a statement. “This law unfairly and arbitrarily penalizes honest citizens for crimes they didn’t commit, in the hopes of preventing crimes they wouldn’t dream of committing.”

SB 5078, the law being challenged by the suit, proved controversial even before litigation began. It was passed by the state legislature and signed into law by Governor Jay Inslee (D.) earlier this year, over vocal opposition from gun-rights supporters, after similar efforts by gun-control activists in the state failed in six previous legislative sessions.

Despite the victory for gun-control activists, the gun-rights community mobilized after the bill was signed into law. Due to the fact that the law does not prohibit possession of previously owned magazines, and because it does not take effect until July 1, major firearm-accessory manufacturers and distributors have publicly led an effort to prioritize magazine sales to the state ahead of the deadline.

Challenges to magazine capacity restrictions have enjoyed mixed success in recent years. Both a federal district court and a three-judge panel on the Ninth Circuit Court of Appeals have struck down a similar ban in California. An en banc panel for the Ninth Circuit later reversed those decisions and upheld the ban last November.

That decision is awaiting review by the Supreme Court.