Category: Courts

BLUF
So there you are.  A return to the rule of law, being treated as just the opposite.  Par for the course in today’s political discourse, alas.

The Supreme Court, Chevron, and the Political Class’s Worst Nightmare: Accountability.

Goodbye, Chevron deference.  Larry Tribe is already mourning the Supreme Court’s overturning of NRDC v. Chevron, in the Loper Bright and Relentless cases, as a national catastrophe:

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Oh, the humanity!

Well, speaking as a professor of Administrative Law, I think I’ll bear up just fine.  I’ve spent the last several years telling my students that Chevron was likely to be reversed soon, and I’m capable of revising my syllabus without too much trauma.  It’s on a word processor, you know.  As for those academics who have built their careers around the intricacies of Chevron deference, well, now they’ll be able to write about what comes next. And if they’re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.

And that wasn’t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class’s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.

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Sure, Norm, whatever you say.

But how about let’s look at what the Court actually did in Chevron, and in the Loper Bright and Relentlesscases that overturned it, and in SEC v Jarkesy, where the Court held that agencies can’t replace trial by jury with their own administrative procedures, and in Garland. v. Cargill, where the Court held that agencies can’t rewrite statutes via their own regulations.  I don’t think you’ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.

At root, Chevron v. Natural Resources Defense Council is about deference.  Deference is a partial abdication of decisionmaking in favor of someone else.  So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing.  I’ve learned that somehow he always seems to pick the best thing.

Deference doesn’t mean “I’ve heard your argument and I’m persuaded by it,” (though something like that is misleadingly called “Skidmore deference, “ but isn’t actually deference at all).  Deference means “even if I would have decided this question differently, I’m going to go with your judgment instead.”

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What with today’s decision reversing Chevron deference, I see no way that the bureaucrap’s rule on unfinished receivers stands.

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Fortunately, we will not have to wait too long to see if Cargill stands alone or reflects a broader trend of checking ATF claims of authority. On April 22, 2024, the Court granted certiorari in Garland v. VanDerStok, a case challenging the ATF’s “frame or receiver” rule as beyond the scope of the agency’s authority. A decision in VanDerStok will likely come during the Court’s next term.

Garland v. Cargill: The Court’s Textualists Stick to Their Guns

Because it involves guns, Cargill v. Garland has been seen by supporters and opponents alike as a Second Amendment case. That is not really correct. Rather, it presents a question of basic statutory interpretation. And in answering that question, Cargill is a triumph of textualism and separation of powers concerns over purpose-driven interpretation and legislative intent.

For the majority, the words on the paper are what matter, even if the Congress that wrote them might have done things differently. It does not matter if something walks like a duck and quacks like a duck if it doesn’t have the features that Congress used to define a duck.

On the separation of powers front, Cargill is a victory for congressional lawmaking authority. Administrative agencies such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) cannot step in and rewrite statutes by administrative fiat just because Congress is not acting as quickly as they might wish.

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Justices rule for Jan. 6 defendant

https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

The Supreme Court heard oral argument on April 25 on Trump’s claims of immunity and has not yet issued its decision in that case. But Smith has argued that even if the court were to rule for Fischer, the charges against Trump could still go forward because they rested, in part, on efforts to use false electoral certificates at the joint session of Congress.

The law at the center of Fischer’s case is 18 U.S.C. § 1512(c)(2), which makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.” U.S. District Judge Carl Nichols concluded that because the previous subsection, Section 1512(c)(1), bars tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding,” Section 1512(c)(2) only applies to cases involving evidence tampering that obstructs an official proceeding, and he dismissed the obstruction charge against Fischer.

The U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols’ ruling, concluding that the “meaning of the statute is unambiguous,” so that it “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the prior subsection.

On Friday, the Supreme Court vacated the D.C. Circuit’s decision, interpreting the law more narrowly to apply only to evidence tampering.

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Overturning the Chevron Deference Could Mean a Regulatory Revolution

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

Business groups have long argued that federal agencies have too much power in their rulemaking. The Supreme Court agrees.

The Supreme Court on Friday overturned the legal precedent known as the Chevron deference in a 6-3 decision, which will reshape the way that federal agencies interpret laws and craft rules that regulate a wide range of businesses.

For decades, courts have turned to regulatory agencies to fill in the legal gaps when areas of the law are ambiguous–this is the so-called Chevron deference, which emerged from case law.

The Chevron deference resulted from a 1984 case filed by Chevron, a big oil company, which argued that the Environmental Protection Agency’s interpretation of the Clean Air Act was overly broad. Chevron lost the case after a judge found that federal agencies are considered to be the authority on a statute if it’s ambiguous. That decision brought forth the Chevron doctrine, or the Chevron deference.

The high court revisited Chevron through a pair of companion cases: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo.

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SEC v. Jarkesy: A Win for the Separation of Powers and the Right to Civil Jury Trial

The Supreme Court held today that the Seventh Amendment right to a civil jury trial in fraud cases was violated when an administrative law judge of the S.E.C. decided the case.
Chief Justice Robert wrote an excellent, thorough, and overwhelmingly persuasive majority opinion in S.E.C. v. Jarkesy, 603 U.S. __ (2024), holding that the Securities and Exchange Commission could not try civil fraud suits before its own Administrative Law Judges. It must instead try them in federal District Court where the Seventh Amendment right to a civil jury trial must be available in all cases which were “[suits] at common law,” as opposed to suits in equity and in admiralty.

The Supreme Court did today for the Seventh Amendment roughly what it did for the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). It held, in a narrow opinion, that Congress and the President cannot completely ignore the Seventh Amendment, just as they used to completely ignore the Second Amendment before Heller was decided. This is the case at least in civil fraud cases brought by the S.E.C.

The Chief Justice’s opinion was joined by five other justices: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts’ opinion examined originalist, textualist, and doctrinal sources of law. In much of the opinion, Chief Justice Roberts makes an overwhelmingly powerful argument that S.E.C. fraud cases are in the words of the Seventh Amendment “[s]uits at common law” which can only be tried by a jury and not suits in equity or admiralty where the right to jury trial has not historically been available.

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Assault Weapon Ban Challenge: Yzaguirre v DC

As of yesterday, Arsenal Attorneys (that’s Dick Heller’s lawyer) has filed a complaint in the US District Court for DC against the District of Columbia and the MPD police chief seeking to overturn DC’s assault weapon registration restrictions on Second Amendment grounds.

 

 

Supreme Court backs Biden administration in social media case

Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant. 
[In other words, we aren’t going to rule on this because…..reasons. So the federal goobermint can go right ahead and keep on doing this slimy crap]

Respondents are two States and five individual social-media users
who sued dozens of Executive Branch officials and agencies, alleging
that the Government pressured the platforms to censor their speech in
violation of the First Amendment.

Following extensive discovery, the District Court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief.

On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the platforms’ moderation decisions, transformed those decisions into state action. The court then modified the District Court’s injunction to state that the defendants shall not coerce or significantly encourage social-media companies to suppress protected speech on their platforms.

 

Supreme Court Signals July End to Term as Trump Ruling Looms

The US Supreme Court signaled it will take the unusual step of extending its term into July as it finishes work on about a dozen cases, including Donald Trump’s bid for immunity from prosecution for attempting to overturn his 2020 election loss.

The court, which had already scheduled Wednesday as an opinion day this week, updated its website to show it will issue rulings on Thursday and Friday as well. Because Chief Justice John Roberts traditionally announces the last day of the term from the bench, the announcement indicates the Friday opinions won’t be the last ones.

In addition to the Trump case, the court will be ruling on abortion, regulatory power and social media in the coming days. Many of those decisions are likely to be deeply divisive, a factor that might be contributing to the delay.

The Trump immunity case, argued on April 25, was the last one the justices heard during the term. The court rebuffed Special Counsel Jack Smith’s requests for a faster schedule, making it unlikely the former president will go on trial before the November election.

The court heard arguments in only 61 cases this term — close to a modern low — but entered June with more than half of those cases yet to be decided. The court still has 14 cases to resolve, though overlapping topics mean the justices may issue as few as 12 rulings.

The court rarely extends its term into the week containing the Fourth of July holiday. The court issued its last opinions on June 30 in each of the last two years.

DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons

Fresh off its victory in Rahimi, the Department of Justice (DOJ) is asking the Supreme Court to clarify who it can disarm under the Second Amendment.

US Solicitor General Elizabeth Prelogar filed a supplemental brief with the High Court on Monday to request that the Justices make the federal felony gun ban their next Second Amendment priority. Specifically, the brief asked for review in five separate appellate court cases dealing with the federal gun ban for felonies of varying severity. She argued such a move was necessary because the Court failed to address the issue in its latest Second Amendment decision.

“Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1) ‘s constitutionality,” the brief reads. “Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The DOJ’s brief is the earliest indication of the legal fallout from the Court’s decision in US v. Rahimi, which upheld the domestic violence restraining order gun ban. It suggests that the federal government is unsatisfied with the Court’s narrow ruling in that case. It is seeking further guidance from the Court that will help lower courts evaluate the extent to which certain felons retain gun rights, something federal circuit courts have been divided over since Bruen.

Instead of providing a sweeping re-evaluation of Bruen, the majority stuck closely to the specific contours of the case against defendant Zachary Rahimi.

“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect,” Chief Justice John Roberts wrote in US v. Rahimi. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

DOJ’s request comes as the High Court considers which of its pending Second Amendment case petitions to grant. The brief’s request for expeditious review could sway the Justices to defer to the federal government’s wishes, as it has often done in past cases.

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Supreme Court Silent on Illinois Gun Ban Lawsuits

Now that the Supreme Court has released its opinions in Garland v. Cargill and U.S. v. Rahimi, the expectations about today’s Orders from Conference were pretty high. The Court has been hanging on to a half-dozen prohibited person cases as well as six combined challenges to the gun and magazine bans that are a part of the Protect Illinois Communities Act, and with Cargill and Rahimi now a part of the record, the assumption was that the justices would have decided to do something with these cases in last week’s conference.

Well, you know what they say about assuming things.

In today’s orders from last week’s conference the Court did grant, vacate, and remand one case that’s been on hold; Guedes v. ATF, an FPC Action Foundation lawsuit dealing with the ATF’s bump stock ban. The Court remanded Guedes back to the D.C. Circuit Court of Appeals, which had previously upheld the ATF rule, for further reconsideration in light of its ruling in Cargill.

The D.C. Circuit Court of Appeals has basically been put on notice that it got it wrong in Guedes, and is now being given the chance to rectify its error.

But what about Range, which deals with whether someone convicted of a non-violent misdemeanor punishable by more than a year in prison can be prohibited forevermore from purchasing or possessing a firearm? Or Daniels, which challenges the federal statute barring “unlawful” users of drugs from legally possessing a gun? I expected those cases to be GVR’ed as well today, and it doesn’t make much sense to hold on to them for another week or more. Maybe there are one or more justices writing a dissent?

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SCOTUS Upholds Rahimi Conviction, But Leaves Major Questions Unaddressed

In an 8-1 decision, the Supreme Court upheld Zachey Rahimi’s conviction for possessing a firearm while subject to a domestic violence restraining order, holding that “when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”

The majority opinion, authored by Chief Justice John Roberts, appears to open the door not only to bans on gun ownership for those subject to domestic violence restraining orders, but Extreme Risk Protection Orders as well. The Court held that while there was no “historical twin” to the statute in question at the time the Second Amendment was ratified, there are still enough appropriate “analogues” to uphold the statute.

Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be.

Like the surety and going armed laws, Section922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right.

Roberts added that “while we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, we note that Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” That at least leaves the door open for those convicted of non-violent felonies or non-violent misdemeanors punishable by more than a year in prison to regain their Second Amendment rights going forward, especially since the Court took note of the “temporary” nature of a restraining order, as opposed to the lifetime ban on possessing firearms that comes post-conviction.

Importantly, the majority opinion did shoot down one argument presented by the DOJ; the Second Amendment only applies to “responsible” citizens.

“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.

In addition to the majority opinion and Justice Clarence Thomas’s dissent, there were five concurring opinions released today; one from Justices Sonia Sotomayor and Elena Kagan, and separate concurrence from Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.

Gorsuch’s concurrence notes that today’s decision “necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.”

So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. We do not resolve whether the government may disarm an individual permanently. We do not determine whether§922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense.

Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

We’ll be delving more into the concurring opinions and Justice Thomas’s dissent in subsequent posts, but given all of the media speculation that Justice Barrett was about to break with the conservative wing of the Court over the use of “history and tradition” to determine the constitutionality of gun laws, it’s worth pointing out this key bit from her concurrence today.

In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen’s holding.

It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? My doubts were not about whether “tradition,” standing alone, is dispositive.

While that sounds like a positive stance for Second Amendment advocates, Barrett went on to make it clear that “imposing a test that demands overly specific analogues has serious problems,” which could open the door to modern gun control laws being upheld based on the flimsiest of ties to 18th-century statutes.

As Gorsuch says, many questions regarding who can be stripped of their right to keep and bear arms, for how long, and for what reason remain unresolved by Rahimi. I’m concerned, however, that a majority of justices are ready to give pretty wide latitude to the states and Congress when it comes to answering those questions.

As read on reddit. 

HERE IT IS!

Applying that methodology to this case, Roberts looks at early English and early American gun laws and concludes that they “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

That is the opening we were hoping for. This opens up a challenge to allowing non-violent offenders to have their 2A rights! It stands to argue that in that emphasized statement, that if an individual does NOT pose a clear threat of physical violence to another, they may not be disarmed.

Note that is not legally what he is saying, but I believe that a challenge has been opened on those grounds.

This is basically the exact ruling we expected:

  • If you pose a credible threat of violence, you can be disarmed.
  • If you don’t pose a credible threat of violence, well, that’s a case for another day…

A good comment from u/blackhorse15A on the other post:

The court ONLY decided this for people such as Rahimi where the restraining order found explicitly that they were a danger to others. The Supreme Court decision expressly says that it is not considering the constitutionality of part (ii) where it applies to restraining orders that tell people not to engage in physical violence (without finding them a threat) and leave that open to future challenge. It would be better if they just found that part unconstitutional, but I think it indicates strongly that it likely isnt and having an 8-1 deicsion is pretty powerful here for the rest of what it says.

Second good point- at the end – the Supreme Court outright rejects the idea that he government can restrict gun rights of people who are not “responsible”.

“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.

Supreme Court Upholds Ban on Gun Possession for Those Under Domestic Violence Restraining Orders

The Supreme Court ruled today that a federal law prohibiting individuals subject to domestic violence restraining orders from possessing firearms does not violate the Second Amendment. In an 8-1 decision, the justices upheld the constitutionality of the law that had been challenged by a man charged with discharging a firearm and possessing firearms while under a domestic violence restraining order.

The man, Zackey Rahimi, hoped the Court’s New York State Rifle & Pistol Association v. Bruen ruling in 2022, which places the burden of historical precedent in alignment at the time of the country’s founding to uphold modern-day gun laws, might help him get from under the indictment.

Chief Justice John Roberts, writing for the majority in United States v. Rahimi, emphasized that the Second Amendment does not prohibit all forms of gun regulation.

“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote, aligning the current regulation with historical precedents. He noted that if the Second Amendment rights include weapons that did not exist at the time the Constitution was written, then logically it also permits more regulation than when it was written .

The case originated from Rahimi, a Texas resident, who was involved in multiple shootings and subjected to a domestic violence restraining order after assaulting his girlfriend. The protective order specifically barred him from possessing firearms. When police found firearms in his home while investigating subsequent shootings, Rahimi was charged under the federal law that prohibits gun possession for individuals under such restraining orders. According to News Nation, Rahimi had been involved in five shootings over a two-month period overlapping 2020 and 2021.

Rahimi argued that the law infringed upon his Second Amendment rights, a position initially supported by the U.S. Court of Appeals for the 5th Circuit, which found that the government failed to provide a historical analogue to justify the restriction. However, the Supreme Court reversed this decision, with Roberts asserting that “firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” since the founding of the United States.

Justice Clarence Thomas, the lone dissenter, contended that the federal government had not demonstrated that the ban is consistent with the nation’s historical tradition of firearm regulation. He argued that the early laws cited by the majority were too different from the current ban to serve as a historical analogue. Thomas expressed concern that the law strips individuals of their Second Amendment rights without due process and could be applied to those not convicted of a crime.

The ruling comes in the wake of Bruen, which expanded gun rights by affirming the right to carry firearms in public for self-defense. That decision has led to numerous legal challenges against existing gun restrictions. The Rahimi decision, however, marks a significant moment where the Court, typically divided on such issues, voted in an overwhelming majority to uphold a restriction aimed at reducing gun violence, particularly in domestic settings.

Domestic violence advocacy groups are welcoming the decision, highlighting the heightened risks victims face when abusers have access to firearms, News Nation reports. Studies show that victims of intimate partner violence are five times more likely to be killed if their abuser has access to a gun. Guns were involved in 57% of domestic killings in 2020, according to the Centers for Disease Control and Prevention.

NC Appeals Court Rules Gun Storage Law Doesn’t Apply to Unloaded Firearms

A North Carolina appellate court has thrown out a woman’s conviction on manslaughter and other charges, ruling that she didn’t violate the state’s gun storage law because the firearm accessed by her teenage son and a friend was unloaded when it was left unsecured.

The unanimous ruling by the three-judge panel might not be the last word in the case, since prosecutors can still appeal to the state Supreme Court, but for now Kimberly Cable is free from the convictions handed down by a trial judge two years ago.

On July 2018, Cable’s son had another boy — both of them 16 years old — over at his house for the night, according to case documents. At 2 a.m., her son went in the bedroom of Cable and her husband as they were sleeping and retrieved an unloaded .44-caliber Magnum revolver that authorities say Cable possessed and a box of ammunition, both laying on top of an open gun safe.

The son showed his friend the revolver and placed it and the ammo on the top of a gun safe in his bedroom. The friend then asked the son if he wanted to play Russian roulette. The friend quickly put a bullet in the revolver, pointed it at himself and fired, dying instantly, the documents said.

What a nightmare for everyone involved. I’m sure that Cable and her husband trusted their teen to be responsible around firearms, given that her husband is a gunsmith. Unfortunately, it sounds like their kid succumbed to peer pressure, and a life was needlessly lost as a result.

While North Carolina law states, in part, that “any person who resides in the same premises as a minor, owns or possesses a firearm, and stores or leaves the firearm (i) in a condition that the firearm can be discharged and (ii) in a manner that the person knew or should have known that an unsupervised minor would be able to gain access to the firearm, is guilty of a Class 1 misdemeanor”, the appellate court ruled that an unloaded firearm can’t be discharged, and therefore doesn’t fall under the storage mandate.

Court of Appeals Judge Jefferson Griffin, who wrote the panel’s opinion, said the appeals court had never interpreted the phrase before and it was ambiguous.

He said past and present criminal law, combined with a legal rule that favors defendants for ambiguous laws, leads to the conclusion that the phrase means the firearm must be loaded.

That means Cable’s revolver was not stored in violation of the law, he wrote. The second similar firearm storage conviction against her also was reversed because there was no evidence to suggest a minor gained access to other weapons, and the involuntary manslaughter conviction was vacated because the safe-firearm conviction involving the revolver was reversed, Griffin said.

It’s a heartbreaking case, but I think the panel made the right call here. Under the statute, prosecutors had to prove both that the firearm that was taken without permission from Cable’s bedroom was in a condition where it could have been discharged and in a manner where Cable should have known that her son and his friend could get ahold of it. While Cable pretty clearly left the revolver out where it could be accessed by anyone in the home, by leaving it unloaded she kept it in a condition where it could not immediately be discharged.

I’m not a fan of gun storage mandates, in part because they impose a one-size-fits-all “solution” to a wide variety of gun owners. But while Cable may not have violated the law, she and her husband arguably violated common sense by leaving their revolver next to a box of ammo on top of a gun safe while their son had his friend in the home.

I’ve always trusted my own kids to be safe and responsible with firearms, but when my overly social son was in high school and our home was regularly filled with his buddies, I also made sure that my collection of firearms, like my liquor cabinet, was off-limits to them. Not because the law required it, but because I remember some of my own idiotic behavior from my teenage years.

Cable’s decision can be dumb, especially in hindsight, without it being a crime. But her case will almost certainly lead to demands to change North Carolina’s gun storage law even if the state Supreme Court upholds the decision from the appellate panel, and gun owners in the state will have to be on guard against any attempt to impose more heavy-handed mandates this session.

Sotomayor’s Mistake

In her dissenting opinion in Cargill, Justice Sotomayor offers a concession that she may come to regret down the road:

On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles.

One of the important Second Amendment questions that has not yet been considered at length by the Supreme Court centers around which commercially available weapons ought to be counted within the provision’s definition of “arms.” The gun-control movement insists that modern sporting rifles such as the AR-15 are sufficiently exotic as to escape protection. Second Amendment advocates, by contrast, consider such a distinction to be arbitrary, reasoning that if semi-automatic handguns are protected, then there is no reason that semi-automatic rifles aren’t, too.

Since the Heller ruling in 2008, however, this debate has been focused more on whether AR-15s are mainstream than on whether they are functionally different than other guns. This is because, as Mark W. Smith explains:

The Supreme Court’s landmark decision in District of Columbia v. Heller established the “common use” test based on the text and original meaning of the Second Amendment and under the Supreme Court’s traditional role of enforcing national, constitutional baselines against local outliers.

The Heller court established the “common use” test to decide how a court should determine whether particular objects, or arms, should be protected by the Second Amendment. Specifically, do the arms being legislated or regulated constitute arms in “‘common use’… for lawful purposes like self-defense.”

To get around this problem, those who wish to ban the AR-15 have taken to claiming that the rifle is not, in fact, “in common use,” and that, as a result, it is not protected under the Second Amendment. Remarkably, Justice Sotomayor just pulled the rug from underneath that argument — and, to make matters worse, did so in an official Supreme Court opinion on the subject of firearms law. Look, again, at the language that Sotomayor uses to describe the AR-15:

He did so by affixing bump stocks to commonly available, semiautomatic rifles.

Sotomayor even uses the word “common”! Not “everyday” or “universal” or “normal” or “usual,” but common — the very word that was used in Heller.

Naturally, I do not expect Sotomayor to remain consistent. If, in the course of a case delineating the meaning of “arms,” she is asked to decide whether the AR-15 is in common use, she will undoubtedly insist that it is not. But, by the point at which she does so, her words will have been used over and over and over again — in the amicus briefs, during oral arguments, and perhaps in the majority opinion, too.

To look a little deeper in the decision, Justice Alito’s concurrence is disturbing. He’s pretty much telling Congress to please pass a law banning them, which is strange coming from a justice well known for his pro-2nd amendment views. But even if he hadn’t signed onto the decision, it would still have been 5-4 majority.

I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).

But an event that highlights the need to amend a law does not itself change the law’s meaning. There is a simple remedy for the disparate treatment of bump stocks and machineguns.

Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.

Now that the situation is clear, Congress can act.

 

cargill v atf

 

6-3 with the 3 dissenters being exactly who you think they’d be.

Bump Stock Ban Tossed Out by Supreme Court in Gun-Rights Win

A divided US Supreme Court dealt a fresh blow to firearm-regulation efforts by throwing out the federal ban on bump stocks, the attachments that let a semiautomatic rifle fire at speeds rivaling a machine gun.

On a 6-3 vote along ideological lines, the justices voided a criminal prohibition put in place by the Trump administration after the 2017 Las Vegas concert massacre, when a man using bump stocks killed 60 people. The attack was the deadliest mass shooting in modern American history.

The case is one of two firearms disputes the court is considering in its 2023-24 term, along with a constitutional clash over the federal gun ban for people subject to domestic-violence restraining orders. The bump-stock fight concerned the reach of a federal statute rather than the Second Amendment, the constitutional provision the court has used to expand gun rights in recent years.

A 1986 law bars most people from owning fully automatic machine guns or parts designed to convert weapons into machine guns. The issue was whether bump stocks meet the law’s definition of machine guns as weapons that can “automatically” discharge more than one shot “by a single function of the trigger.”

“A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does,” Justice Clarence Thomas wrote for the court majority.

Bump stocks replace the standard stock on a rifle — the part that rests against the shooter’s shoulder — with a plastic casing that lets the weapon slide forward and backward. The device harnesses the recoil energy when a shot is fired, causing the gun to slide backward and separate from the trigger finger. The separation lets the firing mechanism reset.

By applying constant forward pressure with the non-trigger hand, the shooter can then force the rifle forward so that it “bumps” the trigger finger, even without moving the finger.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

“The majority’s artificially narrow definition hamstrings the government’s efforts to keep machineguns from gunmen like the Las Vegas shooter,” Sotomayor wrote for the group. She took the unusual step of reading a summary of her dissent from the bench for emphasis.

The case is Garland v. Cargill, 22-976.

 

Federal Judge Vacates ATF Rule on Pistol Braces

We’re still waiting to see what the Supreme Court does in Rahimi and Cargill, but gun owners did get some very good news from the federal courts on Thursday. A U.S. District Judge in Texas has vacated the ATF’s rule treating pistols equipped with stabilizing braces as short-barreled rifles; granting relief not only for the named plaintiffs involved in the litigation, but for every gun owner across the country who owns a brace.

In his decision, U.S. District Judge Reed O’Connor ruled that the ATF’s rule treating most pistol braces as accessories that turn pistols into SBRs violated the Administrative Procedures Act in a number of ways.

For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy.

“When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016)). “It would be arbitrary and capricious to ignore such matters” Id. But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.

Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles.

The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.” Mock, 75 F.4th at 585 (5th Cir. 2023). In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA exempt braced pistol.” Id. at 575. Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious. R.J. Reynolds Vapor Co. v. FDA, 65 F.4th 182, 191 (5th Cir. 2023) (quoting Encino Motorcars, 579 U.S. at 222).

The Defendants’ disregard for the principles of fair notice and consideration of reliance interests is further exacerbated by its failure to follow the APA’s procedural requirements for public notice and comment. As discussed above, Defendants failed to follow proper notice-and comment procedures because the Proposed Rule and the Final Rule differed in immense ways.

O’Connor also held that the ATF’s final rule on stabilizing braces was “impermissibly vague”, noting that while the ATF developed a worksheet that ostensibly allows gun owners to see if their brace-equipped pistol falls under the rule, the ATF itself still has “complete discretion to use a subjective balancing test to weigh six opaque factors on an invisible scale” to determine the legality of a brace-equipped pistol.

Consequently, the Court finds that the Final Rule’s six factor test is so impermissibly vague that it “provides no meaningful clarity about what constitutes an impermissible stabilizing brace,” and, thus, that “it is nigh impossible for a regular citizen to determine what constitutes a braced pistol” that “requires NFA registration.” Id. at 584–85. Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendants’ Motion for Summary Judgment is DENIED as to this issue.

This is a big win for the Firearms Policy Coalition and their co-plaintiffs in the case, and it should provide some meaningful protection for the immediate future. The DOJ will almost certainly appeal O’Connor’s decision, but Merrick Garland and company aren’t likely to find a lot of allies in support of the rule at the Fifth Circuit Court of Appeals, which would be the next stop for the case. Garland could try to appeal directly to the Supreme Court on the issue, but SCOTUS has been reluctant to hear interlocutory appeals from gun owners in the two years since Bruen, and there’s no guarantee the Court would take up Mock v. Garland before the Fifth Circuit has a chance to weigh in on O’Connor’s decision.

For the time being, the rule is dead. And depending on what the Supreme Court does with the Cargill case, it might not be the only ATF rule to succumb to court scrutiny this week. SCOTUS is scheduled to release more decisions from this term on Friday, and the challenge to the bump stock ban could be among the cases that are decided this week.

Judge Grants Preliminary Injunction Against ATF Rule on Gun Dealers

A federal judge in Texas has granted a preliminary injunction against the ATF’s new rule on who is “engaged in the business” of dealing firearms, but his ruling won’t apply to every gun owner across the country. Instead, U.S. District Judge Matthew J. Kacsmaryk has limited the scope of the injunction solely to the named plaintiffs in the case.

Still, given that those plaintiffs include the states of Texas, Utah, Louisiana, and Mississippi along with Gun Owners of America, the Tennessee Firearms Association, and the Virginia Citizens Defense League, millions of gun owners who could otherwise be subjected to an ATF investigation or federal charges simply for offering a firearm for sale can rest a little easier for the time being.

In his ruling, Kacsmaryk held that the plaintiff’s argument that the new ATF rule violates the Administrative Procedures Act is likely to prevail at trial. According to the judge, the new language from the ATF goes far beyond the small changes in statute that were approved by Congress as part of the Bipartisan Safer Communities Act.

Here, the Final Rule clashes with the text of the BSCA in at least three ways. First, it asserts that there is no “minimum number of firearms to actually be sold to be ‘engaged in the business’” for the purposes of the licensing requirement. . “[A] single firearm transaction”— or even a mere offer to engage in a transaction — may suffice.

[W]hile selling large numbers of firearms or engaging or offering to engage infrequent transactions may be highly indicative of business activity, neither thecourts nor the Department have recognized a set minimum number of firearms purchased or resold that triggers the licensing requirement. Similarly, there is no minimum number of transactions that determines whether a person is “engaged inthe business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.

But the BSCA says otherwise: The term “engaged in the business” means . . .

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person whodevotes time, attention, and labor to dealing in firearms as a regular course of tradeor business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personalcollection or for a hobby, or who sells all or part of his personal collection of firearms[.]

Congress says someone must repeatedly buy and resell firearms to be considered a gun dealer, while the ATF says merely offering a single gun for sale can suffice. Kacsmaryk rightfully held that it’s the language in the statute that matters most, and the agency has likely strayed so far from the text that its rule should be rendered null and void when the case is resolved on the merits.

The judge also took issue with the ATF rule’s suggestion that “actual profit is not a requirement of the statute —it is only the predominant intent to earn a profit through the repetitive purchase and resale of firearms that is required,” pointing out that the current statute states “proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. According to Kacsmaryk, that means that proof of profit is required if the feds want to charge someone with being an unlicensed gun dealer and there are no allegations of criminal activity or terrorism involved.

Lastly, Kacsmaryk found fault with the ATF’s presumptions on “when a person has the intent to ‘predominantly earn a profit’” and “that someone is ‘engaged in the business.’” Under the ATF’s rule, people are presumed to have those intentions unless they can prove otherwise, which the judge says “flip[s] the statute on its head by requiring that firearm owners prove innocence rather than the government prove guilt.”

I wish that the judge would have applied this injunction to all gun owners and not just the named plaintiffs in the case, but this is still a significant victory for those challenging the new rule. Texas v. ATF isn’t the only lawsuit to challenge the ATF rule either, so there’s a good chance that more gun owners will find relief as the other lawsuits move forward in the courts.