Category: Courts

Justice Kavanaugh to Second Amendment: We’re Really Busy Now, Come Back In A Year Or Two

On December 1, 2020, the Maryland ban on AR-15s was challenged. The plaintiffs lost in the District Court and before the Fourth Circuit. In August 2024, a cert petition was filed in Snope v. Brown. The petition sat in purgatory for nearly a year with fourteen relists.

Today, the Supreme Court finally put the petition out of its misery and denied cert. Justices Thomas, Alito, and Gorsuch would have granted. Justice Barrett, as usual said nothing. Justice Kavanaugh wrote a very unusual statement respecting the denial of the petition. The first two paragraphs explain why the Maryland decision was “questionable.” If you read these parts, you would expect a grant. Indeed, Kavanaugh as circuit judge had found that the District of Columbia’s ban on AR-15s was unconstitutional. But then, we get to the last paragraph:

In short, under this Court’s precedents, the Fourth Circuit’s decision is questionable. Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review.

The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals…..

Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR–15 issue.

 Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.

My mouth nearly hit the floor when I read this. Kavanaugh all-but signals that he will be a fourth vote to grant cert. He does not identify any vehicle problems, or reasons why the Maryland petition should not be granted. Does he really think that rulings from the Ninth Circuit will help much in the deliberations? These courts will all rule against the Second Amendment. Nothing is in doubt. The upshot is that the Court is really busy with other stuff right now, and you all should just come back later. The Second Amendment could take a sabbatical for a year or two until the docket lightens up. Indeed, this case has been pending for nearly four years. Maryland gun owners will just have to chill.

Of late I’ve been praiseworthy of some of Kavanaugh’s actions, but this is the sort of Kavanaugh opinion that infuriates me. And where is Justice Barrett on these issues? A decade ago in 2015, Justice Scalia dissented from denial of cert in Friedman v. Highland Park, a challenge to an assault weapon ban.

This issue isn’t new. I think this term will be remembered as the term in which Justice Barrett’s slide became indisputable. I started tracking it years ago, but it is hard to ignore now.

Kostas Moros

May as well do a proper thread on this. Read for my analysis/cope.
Snope denied. The Supreme Court has forsaken us.
Kavanaugh says they want more percolation, apparently.
First up is Kavanaugh, in a statement respecting the denial of cert. (Basically a concurrence in denying it) Not that it will matter until SCOTUS actually polices the antigun circuits, but Kavanaugh confirms we are right that: a. there is a “common use” test. Antigun states have denied this, arguing there is no such test, or if there is, it’s only “commonly used for self-defense.” b. it is historically-based (i.e., not part of the phony “plain text” analysis). Antigun states have argued it’s at the plain text step.
Not strong enough to get granted cert now though, I guess?
Sure, but the antigun circuits will absolutely take this as an affirmance of the terrible Fourth Circuit ruling. SCOTUS needs to accept that it must actively police those circuits, or just admit it has no interest in protecting the Second Amendment so we stop wasting our time.
While they didn’t join this statement, this is Barrett and Roberts speaking too, it’s pretty clear. Kavanaugh wouldn’t write with such confidence (i.e. “presumably”) if he didn’t think they – or at least one of them – was on board to hear such a case soon. You are free to think I am coping – I can’t blame you for having zero confidence in the Court after this. It’s just how I read it. Even if I am correct, that wouldn’t make it okay. Another year or two of denied rights is incredibly damaging. As I have pointed out before, our lives are not that long, and not having our Second Amendment right fully realized for another year or two is a real loss. Moreover, there is absolutely nothing to be gained from percolation. Only antigun circuits ever here AWB cases, and their rulings are all very similar to each other.
We love you Justice Thomas, thanks for always being a real one.
I don’t like Justice Thomas embracing the plain text “step.” I guess I now have to concede there is such a step, bummer.
That said, the plain text is not hard to meet in an arms ban case, as Thomas points out.
Now that Thomas has confirmed I was wrong and there is a “plain text” step, I now urge the Supreme Court to gut it and make Bruen the one-step test it should be. Antigun circuits will always place “too high a burden” on Plaintiffs to avoid the historical analysis. The plain text step, if it is too exist, should be no more than a simple qualifier, not some rigorous analysis.
to* exist.
So while Thomas does reject my view that there is no meaningful plain text step, he does agree that it isn’t a hard step to meet.
Beautifully written. Too bad it is in a dissent from denial of cert, and not the first line of a per curiam ruling.
Thomas deals with the 4th Circuits dumb slippery slope argument.
Thomas agrees that percolation has no value.
He concludes by pointing out the Court’s logic in VanDerStok could allow for the federal government to declare AR-15s to be “machineguns” and ban them. A future Dem administration will no doubt try this.
So, what’s my speculation?
I think there was clearly a lot of negotiating behind the scenes, and Roberts/Barrett or one of them just doesn’t want another controversial issue on their plate right now.
They promised Kavanaugh they’d take up the issue soon, but who knows if they will keep that promise (no doubt the stream of Trump admin cases will continue for the whole four years). Hopefully the USDOJ will support the Duncan cert petition to add some pressure for a grant. If they deny Duncan, then the next best candidate is probably the Illinois cases about to be heard on final judgment by the Seventh Circuit.
It is interesting that Kavanaugh had no similar statement for Ocean State Tactical. As a judge on the DC Circuit, he dissented from an opinion (Heller II) upholding an AWB, but said as to magazines he would have remanded for further proceedings. It’s possible Kavanaugh is against AWBs, but would be accepting of a magazine capacity limit. I certainly hope that isn’t the case. I can’t blame anyone for dooming at this point, but we’ll keep doing the best we can. We need Justices Thomas and Alito replaced by fire-breathers like VanDyke who don’t care about suffocating decorum traditions and will openly call out their colleagues when they are being hacks. Thomas and Alito are the best justices on the Court, but they are aging and it is critical they be replaced with equally-strong but younger judges.
Finally, the percolation excuse must be especially frustrating for the Snope plaintiffs. Let’s say in a best case scenario, Kavanaugh is being truthful, and SCOTUS does grant a similar case and strikes down AWBs. The Snope plaintiffs are still out all of their legal fees, which do not get reimbursed if you are vindicated two years later. You only win back fees if your case wins. So they are just SOL.
Very cool SCOTUS, thanks.

These Are Trained Judges, Readers! Don’t Try This Yourselves at Home!
Readers of today’s opinion in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President (which I think got it largely right in its substantive analysis), might notice that it included 26 exclamation points (not counting one in a quote from President Trump). Here is just a subset:

The Founding Fathers knew this! …

Please—that dog won’t hunt! …

The causal chain contains at most two links, and it is certainly not highly attenuated! …

Please! …

I agree! …

Taken together, the provisions constitute a staggering punishment for the firm’s protected speech! The Order is intended to, and does in fact, impede the firm’s ability to effectively represent its clients! …

Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary’s authority to resolve cases and sanction parties that come before the courts! …

I appreciate that the author is a federal judge, and I’m not, but my sense is that the exclamation points do more to detract from the persuasiveness of the opinion than to advance it. And even if it works for a judge, I would strongly recommend lawyers to avoid such massive use of exclamation points—indeed, even any use of exclamation points. (“Quod licet Iovi, non licet bovi,” as my father liked to quote.)

To pass along again (albeit imprecisely) an exchange I blogged about in 2007,

[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]

A. Another thing I learned about legal writing: Don’t use exclamation points for rhetorical emphasis. And all-caps — don’t do that, either. Bold is also very bad. So is italics: It’s OK to use it to highlight important terms in quotes, or terms that you’re trying to distinguish from each other in your arguments, but don’t use it as an exclamation point.

B. But what then are you supposed to use for rhetorical emphasis?

A. How about … forceful arguments?

Supreme Court Allows DHS to Suspend Temporary Protected Status for Venezuelans.

The latest SCOTUS order shows the justices are taking a more nuanced approach to district court injunctions of Trump Administration policies than its critics, left or right.

Today, over a lone noted dissent, the Supreme Court stayed a district court injunction barring the Department of Homeland Security from terminating Temporary Protected Status for Venezuelans in the United States. The unsigned order in Noem v. National TPS Alliance noted that Justice Jackson would not have granted the stay.

The order was not an unqualified victory for the Trump Administration, as it does not extent–and expressly does not prejudice–challenges to the Administration’s withdrawal of other benefits or status designations for TPS beneficiaries. Those questions will be litigated separately.

The Court’s action was likely driven by the justices’ conclusion that the federal government is likely to prevail on the merits, as the decision whether to confer, maintain, or terminate TPS is largely discretionary. Indeed, it is not even clear TPS decisions are subject to judicial review (as the Administration argued in its stay application).

The Court’s order also highlights that, even within the constraints of the emergency docket, the justices are considering each application for relief on its own terms, and will police district court overreach where such overreach is clear. So while a majority of justices will not allow the Trump Administration to summarily deport individuals under the Alien Enemies Act without providing for adequate process, it is will also prevent individual district court judges from enjoining policy decisions that are clearly within the discretion of the administration.

This approach may not satisfy partisans, or those who presume the Trump Administration is entitled to prevail (or should be stymied) on every question (often without acknowledging, let alone understanding, the legal questions at hand), but it suggests the justices are endeavoring to pay attention to what the law actually allows or requires.

Department of Justice Announces Settlement of Litigation Between the Federal Government and Rare Breed Triggers

oday, in accordance with President Trump’s Executive Order Protecting Second Amendment Rights, as well as the Attorney General’s Second Amendment Enforcement Task Force, the Department of Justice announced the settlement of litigation between the federal government and Rare Breed Triggers.

“This Department of Justice believes that the 2nd Amendment is not a second-class right,” said Attorney General Pamela Bondi. “And we are glad to end a needless cycle of litigation with a settlement that will enhance public safety.”

In June 2024, in Cargill v. Garland, the Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority by issuing a rule classifying a bump stock as a “machinegun.” In July 2024, the Northern District of Texas applied Cargill v. Garland to a device called a “forced-reset trigger” (FRT) and concluded that FRTs also cannot be classified as a “machinegun.”

The Department’s agreement with Rare Breed Triggers avoids the need for continued appeals in United States v. Rare Breed Triggers and continued litigation in other, related cases concerning the same issue. The settlement includes agreed-upon conditions that significantly advance public safety with respect to FRTs, including that Rare Breed will not develop or design FRTs for use in any pistol and will enforce its patents to prevent infringement that could threaten public safety. Rare Breed also agrees to promote the safe and responsible use of its products.

The cases that will be resolved under the settlement agreement are:

  • NAGR v. Garland, 23-cv-830-O (N.D. Tex.), on appeal 24-10707 (5th Cir.).
  • United States v. Rare Breed Triggers LLC, No. 23-cv-369 (E.D.N.Y), on appeal 23-7276 (2d Cir.).
  • United States v. Miscellaneous Firearms and Related Parts and Equipment Listed in Exhibit A, 23-cv-17 (D. Utah).
Updated May 16, 2025

SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up
None of the usual rules will apply when the ACLU says there is an emergency.

The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.

What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the “rule of law.”

I will have much more to say about this order in due course.

Gun owners secure historic settlement with DOJ, ATF over Forced Reset Triggers
The Trump administration will also return all FRT devices that were seized by the Biden administration, if individual owners request the returns by September 30, 2025. Instructions for filing the requests will be posted on the ATF’s website.

Two gun rights groups on Friday signed a historic settlement with the Justice Department (DOJ) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), over a series of lawsuits regarding Forced Reset Trigger (FRT) devices.

The settlement comes under a new presidential administration, which agreed to drop three pending lawsuits filed under the Biden administration and not prosecute owners of FRTs if the devices meet a legal definition upheld in a summary judgment last year.

The Trump administration will also return all FRT devices that were seized by the Biden administration, if individual owners request the returns by September 30, 2025. Instructions for filing the requests will be posted on the ATF’s website.

The agreement was made by the ATF, DOJ, National Association for Gun Rights (NAGR) and Texas Gun Rights (TXGR).

“This is one of the most stunning victories in the history of the gun rights movement. We didn’t just beat the ATF — we put them in a submission hold, and they tapped out,” NAGR President Dudley Brown said in a news release. “This decision marks a new era of holding the DOJ and ATF accountable when they trample the rights of law-abiding gun owners. We made them give back what they took, and that’s a precedent they’ll never forget.”

Well, that would be ‘tried to confiscate’ and it wouldn’t be pretty as I’m sure LOTS of people would go ‘Solzhenitsyn Style’. But then Justice Sotomayor never has been a ‘wise Latina’

Does Justice Sotomayor Really Want To Know What The Remedy Would Be If The Government Confiscated Everyone’s Guns?

Justice Sotomayor is pretty predictable. She walks into oral argument with a set of questions she wants to ask, and she will keep asking them, whether or not she gets the answer she wants. I imagine advocates get frustrated, but that is part of the game.

During the birthright citizenship cases, Justice Sotomayor asked the same line of questions several times–apparently she thought it was clever. To illustrate the limits of the government’s position concerning nationwide injunction, she would change the hypo: what would happen if the government sought to confiscate every gun in America; would every gunowner have to bring an individual law suit to seek relief?

Page 13: JUSTICE SOTOMAYOR: –so, when a new president orders that because there’s so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people –and he sends out the military to seize everyone’s guns –we and the courts have to sit back and wait until every named plaintiff gets –or every plaintiff whose gun is taken comes into court?

Page 41: JUSTICE SOTOMAYOR: If we’re afraid that this is or even have a thought that this is unlawful executive action, that it is Congress who decides citizenship, not the executive, if we believe, some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action, as unlawful as an executive taking the guns away from every citizen?

Page 44: JUSTICE SOTOMAYOR: –it got rejected repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen, we couldn’t stop that.

Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone’s gun? This remedy would not involve Rule 23. [fyi. ‘Rule 23’ is a rule in federal courts about class action suits, MF]

Nearly 250 years ago, King George III and General Gage tried to confiscate the firearms from the Americans. What happened next? Lexington and Concord, the Shot Heard Round the World. As best as I can recall, the patriots did not go to a Court of Chancery to seek an equitable remedy.

We have a similar story in Texas history. During the Texas Revolution, the Mexican Army demanded that the Texians in the City of Gonzales surrender their cannon. What did the Texians say? Come and Take It! The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction. This was the Lexington of Texas. And the Battle of Gonzales led to the Battle of the Alamo, which led to Texas Independence. Sensing a pattern of what happens when the government tries to disarm the people?

I took this photo during my visit to the museum in Gonzales.

I’m reminded of Judge Kozinski’s opinion in Silviera v. Lockyer:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.

There is an important lesson to be learned here. Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.

Supreme Court Second Amendment Update 

There are six more conferences where the justices of the United States Supreme Court will vote on petitions for a writ of certiorari before they go on their summer break at the end of June. Prior to reconvening on the first Monday in October, there will be a “long conference” toward the end of September where the justices dispose of the cert petitions that were not disposed of by the end of June, and those where a response (or waiver to respond) were filed during their summer break.

In years past, that long conference typically disposed of far more than 1,000 petitions, but the number of petitions filed each term has significantly declined in recent years. Still, if the past is prologue, the long conference is the conference in which the most petitions will be denied. Last term, 619 petitions that were briefed too late for the 2023-2024 term were disposed of, plus 406 docketed after July 1, 2024, for a total of 1025 petitions. That includes writs of mandamus/prohibition, motions for rehearing, etc.

There are a dozen Second Amendment cert petitions scheduled for this Thursday’s SCOTUS conference. Three are of note: The interlocutory appeal of the Rhode Island ban on magazines that hold more than ten rounds (Ocean State Tactical), the appeal of the final judgment challenging Maryland’s semiautomatic rifle ban (Snope), and the return of Edell Jackson, Petitioner v. United States No. 24-6517, in which the Eighth Circuit Court of Appeals held that individuals cannot challenge the Federal law that prohibits persons from possessing firearms who were convicted of felonies punishable by more than one year of confinement or persons convicted of state law misdemeanors punishable my more than two years of confinement (18 U.S.C. § 922(g)(1)).

Continue reading “”

Menendez Brothers Have Murder Sentence Reduced & Are Now Eligible For Parole

Erik and Lyle Menendez, who have served roughly 35 years of a life-without-parole prison sentence for the 1989 shotgun slayings of their parents in Beverly Hills, were re-sentenced today to 50 years to life, immediately making them eligible for parole.

The decision by Los Angeles Superior Court Judge Michael Jesic does not automatically mean the pair will be released from prison. They will have to appear before a parole board, which will recommend whether they should be available for parole. The recommendation would then go to Gov. Gavin Newsom, who could reject their release.

More to come…

Ohio Court says concealed carry is not a constitutional right.

Michael Bloomberg is a multibillionaire who hates the Second Amendment. He hates Open Carry most of all. And so it should come as no surprise that a writer for one of his companies (Bloomberg Law) opened his article by saying, “Ohio authorities can prohibit citizens from carrying concealed weapons if they’re able to openly carry guns, a state appeals court ruled Thursday.”

Of course, the judge said no such thing. I suspect that the Bloomberg writer did not read past the “Topics and Issues” description of the case.

The Ohio Court of Appeals held that there is no constitutionally protected right to concealed carry under the Second Amendment and that there is no constitutionally protected right to concealed carry under the State of Ohio Constitution.

The Court explained in paragraph 108 of the decision that the Ohio legislature had created a limited statutory right to concealed carry, and the creation of that state statutory right “to others cannot expand Hall’s constitutional right to bear arms under the Second Amendment, just as Ohio could not contract the scope of that [Open Carry] right by statute.”

The Ohio Court of Appeals addressed the Defendant’s three Constitutional challenges: the Fourth Amendment, the right to keep and bear arms under the United States and the State of Ohio Constitutions.

After the Defendant lost on his Fourth Amendment issue raised on appeal, the Second Amendment analysis began on page 10 and ended on page 45 of the 46-page opinion. The State of Ohio Supreme Court had already decided that, “[T]here is no constitutional right to bear concealed weapons” under the State Constitution, and so that issue raised by the Defendant was quickly disposed of.

What is impressive and unusual about this decision by the Ohio Court of Appeals decision in State of Ohio v. Desmond Hall is the depth and breadth of its analysis.

By contrast, the California Court of Appeals, in the case of People v. Miller (2023), likewise concluded that concealed carry is not protected by the Second Amendment, but did so in just eight paragraphs.

The moral of this story is that one should not rely on reporters, especially not when one can go directly to the source, which in this instance is the published opinion of the Ohio Court of Appeals, available for everyone to read for free.

Most people rely on others’ opinions when those opinions confirm their unfounded beliefs. They never make the effort to seek out the truth, even when the truth, as the judges see it, is one click away.

Don’t be like most people.

State of Ohio v. Desmond Hall 
People v. Miller, 94 Cal. App. 5th 935 (2023).

SCOTUS, Anti-Gun Lawfare, and the Importance of PLCAA

The Protection of Lawful Commerce in Arms Act is an important bit of legislation that makes it a lot harder for people to sue gun companies because of what third parties do with the products they make and/or sell. It’s ridiculous we need such a law because only the mentally disabled would blame a company for making a product, selling it lawfully, only for some completely different party to do something.

I often liken it to suing Toyota over drunk drivers, and that’s for good reason.

As things are now, though, that protection is starting to crumble a bit. It’s being challenged left and right, with such a challenge currently before the Supreme Court, even as some states try to create workarounds that will let the lawfare against the firearm industry resume.

John Commerford at the NRA-ILA has some thoughts on the subject.

As we approach the 20th anniversary of the Protection of Lawful Commerce in Arms Act’s (PLCAA) passage coming up on Oct. 26, the law is imperiled by a new generation of anti-gun litigants seeking to exploit loopholes. In March, however, one such case—Smith & Wesson Brands v. Estados Unidos Mexicano—landed before the U.S. Supreme Court, where it received a chilly reception from skeptical justices across the ideological spectrum.

Most observers believe the plaintiffs overplayed their hand, although the reasoning the justices use to resolve the case will determine whether the PLCAA continues to protect the law-abiding gun industry as intended.

The PLCAA is ultimately about how the industry that enables Americans’ Second Amendment rights is regulated. Is it by relatively fixed and ascertainable statutes enacted by democratically elected legislators? Or is it by unpredictable, shifting and innumerable standards of “reasonableness” imposed after the fact by unelected judges at the behest of firearm prohibitionists?

That latter option promotes lawfare, which has been characterized as death by a thousand cuts. Lawfare practitioners may not care if they win their cases, because even one who is innocent before the law can succumb to the legal process itself.

The biggest cut is the expense of litigation. The lengthier and more complex the proceedings, the more likely the defendant will be unable to sustain a defense.

Another is reputational harm from accusations of wrongdoing, no matter how baseless, particularly if the media and public officials amplify the plaintiff’s case.

Commerford goes on to detail how the lawfare activists are using justifiable exceptions within the PLCAA and exploiting them to try and bring back their zealous attack on the one industry most vital to the right to keep and bear arms.

Gun companies can and should be able to be sued for misconduct. If they make a faulty barrel and it explodes, for example, they should be held accountable. Or, if their gun discharges in your holster, you might want to talk to a lawyer, and you should have that avenue available.

But the gun grabbers are trying to use this by claiming the companies’ marketing is misconduct, that by appealing to their customer base, they’re somehow responsible for what other people do.

The kicker is that many of these efforts don’t even try to present evidence that the criminal party even saw the marketing. That doesn’t matter to these folks, and that’s downright disgusting to me.