Category: Rights

Kostas Moros

A lot of people foolishly believe that the gun control movement’s motivation is a misguided but good faith desire to stop criminal violence.

While that’s true of some people who have been personally affected by gun-related crime, for the party leaders and financiers of the left, it’s not really true. If stopping crime were the big concern, they wouldn’t embrace so many policies that quickly release violent criminals back into society.

Criminal violence isn’t the real target, the fact that broad gun ownership is a check on the erosion of other liberties is. What is happening in the UK and Brazil right now is much harder to do in the US. Millions being armed is a major deterrent to it.

Everything the modern American Democrat party does makes sense when you realize the goal is to turn us into docile and harmless western Europeans.

Second Circuit Rules Legal Gun Ownership Not Probable Cause for Warrantless Search

The Second Circuit Court of Appeals hasn’t traditionally been a welcoming place for gun owners. This is the same appellate court that originally upheld New York’s “may issue” carry regime before the Supreme Court overturned their decision in Bruen, and since then the court has upheld many of New York’s post-Bruen restrictions on lawful gun owners.

Today, however, a three-judge panel on the court got it absolutely right when it ruled that a Connecticut police officer isn’t entitled to qualified immunity after handcuffing, detaining, and conducting a warrantless search on a resident after he produced a valid handgun permit.

Defendant-Appellant Nicholas Andrzejewski, an officer of the Waterbury,Connecticut police department, appeals from the judgment of the United States District Court for the District of Connecticut (Arterton, J.) denying in part his motion for summary judgment on the grounds that his purported conduct was not shielded by qualified immunity.

That conduct, as alleged by Plaintiff-Appellee Basel Soukaneh, is that in the course of a routine traffic stop, Andrzejewski unlawfully and violently handcuffed and detained Soukaneh in the back of a police vehicle for over half an hour and conducted a warrantless search of Soukaneh’s vehicle after Soukaneh presented a facially valid firearms permit and disclosed that he possessed a firearm pursuant to the permit.

On appeal, Andrzejewski argues we should reverse the district court’s denial of qualified immunity because the presence of the lawfully owned firearm in the vehicle gave him the requisite probable cause to detain Soukaneh, search the interior of his car, and search his trunk.

Andrzejewski’s argument is essentially that, by exercising our Second Amendment rights, we give up our Fourth Amendment right to be secure against unreasonable searches and seizures. In fact, he basically maintained that possessing a valid pistol permit gave him reasonable suspicion to search Soukaneh’s vehicle for some evidence of wrongdoing.

After the district court ruled that the officer wasn’t entitled to qualified immunity for his actions, Andrzejewski introduced a new argument in his appeal to the Second Circuit; it wasn’t solely Soukaneh’s gun permit that led him to handcuff the gun owner and search his car, it was the fact that Soukaneh had stopped his vehicle in a “high crime area known for drug transactions”.

As the panel noted, however, “a location’s reputation as a high crime area alone is typically not enough to suggest reasonable suspicion [of a crime], let alone probable cause.” And the court found that Andrzejewski offered no evidence whatsoever that Soukaneh was illegally possessing a gun when he was confronted by the officer. To the contrary, as a matter of fact. Andrzejewski was able to conclusively determine that Soukaneh had a valid pistol permit and lawfully possessed the firearm that he informed the officer he was carrying.

The desire to confirm the legitimacy of the facially valid firearms permit that Soukaneh presented did not—with nothing more—provide Andrzejewski with probable cause for the half-hour or longer handcuffed detention that occurred.

It is uncontested that Soukaneh presented Andrzejewski with a gun license, the legitimacy of which Andrzejewski himself admits he had no reason to question. Moreover, Andrzejewski concedes that he was informed of the facially valid license before Soukaneh told him that he had a gun and specified its location.

Andrzejewski does not allege that the permit appeared abnormal in any fashion or that Soukaneh engaged in any suspicious or threatening behavior. On the facts before us, Andrzejewski does not provide an articulable reason why he, or any other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a).

 To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

As common sense as that position is, it’s still somewhat surprising to see the Second Circuit panel unanimously reach that conclusion… especially since the panel was comprised of two Biden appointees and one judge appointed by Barack Obama.

Andrzejewski could still appeal to an en banc panel of the Second Circuit or take his case directly to the Supreme Court, but I doubt he’s going to find a more receptive audience for his arguments at SCOTUS. The Supreme Court has already declared that the Second Amendment isn’t a second-class right, so I doubt a majority would go along with the officer’s contention that exercising your right to keep and bear arms negates your Fourth Amendment rights altogether.

All Real Gun-Control Conversations Boil Down To This

I have spent a great deal of time over the last two decades debating gun-control advocates both within the United States and abroad. Naturally, the circumstances and details of these debates can be different, but the fundamental claims they make are broadly the same. Here is an attempt to distill into one conversation the criticisms that commonly appear, and the sound arguments I have found effective in countering them.

They often begin with someting like: “Charles, we have to do something about guns.”
“Okay, I’m listening,” I respond. “What do you want to do?”

I want common-sense gun control.
Such as?

Well, we could start by accepting that the Second Amendment doesn’t even protect the right to keep and bear arms. That idea was made up by Antonin Scalia in 2008.
Ah. I’m afraid that you’ve fallen here for a debunked conspiracy theory. In truth, the right to keep and bear arms has been a part of American life since the 17th century. It was respected in colonial America—and in many colonial and state constitutions—long before the Constitution was written; it was acknowledged and reaffirmed by every major legal scholar of the 18th and 19th centuries; it was explicitly extended to all Americans by the drafters of the 1866 Civil Rights Act, the two postbellum Freedmens Bureau Acts, and the 14th Amendment; and it was accepted by 80% of the American public prior to the Supreme Court’s decision in Heller. The U.S. Bill of Rights protects individual liberties; there is no such thing as a “collective right” in that document. The right, as the Second Amendment makes clear, is “of the people.”

Fine. But it’s an amendment. It was, itself, a change. Doesn’t that tell you something? It, too, could be amended.
Not really. The Second Amendment is, indeed, an “amendment” to the original Constitution, albeit one that was added only two years after the Constitution went into effect. But, contrary to your implication, it wasn’t the result of shifting political attitudes or of a debate over policy, but of a desire to make sure that Americans’ fundamental liberties were clearly protected. When James Madison introduced the proposed U.S. Bill of Rights into Congress, he made it clear that he had included only those provisions that were entirely uncontroversial. As a historical matter, the term “amendment” is a misnomer when applied to the first 10 changes. They are more accurately described as the price of admission for the ratification of the Constitution, as that was the agreement at the time.

Okay, but surely things have changed?
What has “changed,” exactly? Human nature? Man’s capacity for evil? The intrinsic right to self-defense—be it against an individual who would do you harm or a government that has turned on its people?

The modern world is just different. Look at our technology!
Actually, I agree with that. The modern world is different. And, in some ways, it is true that the Founders couldn’t have imagined how we now live. But, that cuts against the argument for gun-control rather than in its favor. When the Founders talked of “tyranny,” they were referring most immediately to a largely benign British Empire that, until it started to meddle in unacceptable ways, had mostly left the American colonies alone. There is no way that they could have conceived of the scale of the horrors that would be inflicted in the 20th century by Nazi Germany, the Soviet Union, communist China and others. The case for the Second Amendment was watertight in 1789. By 1989, when the Berlin Wall fell, it was unassailable.

But America isn’t like those places, is it?
No, mercifully, America is not like those places. But it’s a little bit odd to make that point while you’re trying to remove one of the reasons that America is not like those places, isn’t it? America is free in part because of the U.S. Constitution. You can’t start removing or undermining parts of that Constitution and just assume that everything would remain exactly the same after you’d done it.

Ha! So you think that if America became a tyranny, the people could fight back with small arms?
Yes, I do think that. And, perhaps more importantly, I think that America would have no chance of becoming a tyranny while the people remain well-armed. But I must ask you: Can you hear yourself? You’re positing the possibility that the United States would become a tyranny while worrying about the citizenry being armed. What, in the last three centuries of human history, has given you the idea that the problem to be solved is that free people have arms?

Crime has given me that idea. Criminals use guns! We have to stop that.
How?

By banning guns!
By banning guns for whom?

In the past, laws that permit the government to choose who may carry firearms have invariably been used to disarm minorities and the poor.

For everyone!
There are half a billion privately owned firearms in the United States. Even if you could convince the public to (a) repeal the Second Amendment, and (b) usher in a societal change that would rival the failed prohibition of alcohol, it would still be the height of naivety to believe that the criminals that you were attempting to disarm would be affected by the ploy. By definition, criminals do not follow the law. The only thing that deters them is the fear that other people—that is, the people who don’t commit the crimes—will be able to fight back.

You’re talking about the myth of a good guy with a gun?
The myth? It’s hardly a myth! Concealed-carriers in the United States are among the most law-abiding people in the country. Indeed, data out of Texas and Florida shows that they are up to seven times more law-abiding than the police. And you only need to open a newspaper to discover that concealed-carriers stop crimes on a regular basis. Why, I must ask, would you wish to take the guns away from the people who aren’t the problem?

Okay, so if you need someone to act as a deterrent, why not let the police have guns and take them away from everyone else?
Leaving aside the other problems associated with disarming a free people, may I ask if you’ve ever been to the United States? Or, if you have been to the United States, if you’ve ever been outside of the cities? America is an enormous place. Even if it were a good idea to limit gun ownership to the police, it would remain the case that the vast majority of areas in America are too big or too remote to be effectively policed.

Then make them gun-free zones!
Are you serious? The solution to the threats posed by criminals or by wild animals is to put up a sign saying that nobody is allowed to be armed and that the bad guys must follow the laws?

Okay, fine, but shouldn’t we at least decide who is allowed to carry a gun and who is not?
Do you mean that we should prohibit felons, children, tourists and the mentally ill from carrying firearms? Because we already do that.

No, I mean that the government should choose which citizens are allowed to carry and which are not.
Ah, I see. Do you know how that has worked out in history?

What do you mean?
I mean that, while I accept that this may not be your motivation, the history of gun control in the United States has been inextricable from the history of racism and discrimination. In the past, laws that permit the government to choose who may carry firearms have invariably been used to disarm minorities, the politically unpopular and the poor.

Well, obviously, I don’t want to do that. I’m nice! But could we perhaps impose some strict training requirements and high fees?
So that only wealthier people can exercise their rights?

No, so that the country is safer.
What evidence do you have for the proposition that limiting the rights of law-abiding people would make the country safer? Many states have now abolished their permitting systems completely, and the change has had no effect whatsoever on crime.

What about background checks? We don’t have any!
That’s not true. All commercial sales require a background check; all sales over the internet must be shipped to a dealer, who performs a check; and there is no such thing as the “gun-show loophole.” Private, intrastate transfers are not federally regulated, because, as well as being intrusive, expensive and practically impossible, federal regulation would require the creation of a gun registry.

Gun control so often fails because a majority of Americans want to keep their freedom.

What’s wrong with a gun registry?
For a start, they don’t do anything to prevent or help solve crime, which is why many of the most anti-gun jurisdictions in the United States, plus countries such as Canada, have abandoned theirs. They’re also a problem for civil liberties, as they can leak—or be leaked. And, historically, they have been used by tyrannical governments to enable confiscation.

Fine. Then ban semi-automatics.
What is a semi-automatic?

It’s a machine gun.
No, it’s not. That’s an “automatic.” A “semi-automatic” is a standard firearm that fires one round with each depression of the trigger. Far from being exotic, the term “semi-automatic” describes more than 200 million firearms in the United States, including the most commonly owned rifles and the vast majority of handguns sold. The technology has been around since the 1880s—during the presidency of Grover Cleveland.

Well, we can at least ban the AR-15.
Why?

Because it’s an assault weapon.
What does that mean?

It means that it’s more dangerous than other guns. It’s a weapon of war.
It’s neither of those things. It’s a standard semi-automatic rifle, of the type that has been owned in America for 140 years; moreover, it’s used so infrequently in crimes, that the FBI doesn’t even bother to keep statistics. In 2019, rifles—that’s all rifles, not just so-called “assault weapons”—were used in around 2.6% of all homicides committed in the United States. By way of context, that’s about as many homicides as were committed with clubs and hammers, about half as many homicides as were committed with hands and feet and about a quarter as many homicides as were committed with knives.

But we banned them before. We can do it again.
Actually, we can’t. The Second Amendment protects weapons that are in common use, and the AR-15 most definitely meets that description. Besides, every study shows that the ban on so-called “assault weapons” that was in effect between 1994 and 2004 did nothing. I thought you wanted to improve things?

Well, we have to do something. And we would, if it weren’t for the NRA!
This is a misconception. The NRA, among many other things, does political advocacy. The NRA has been highly effective in persuading the public to help protect the right to keep and bear arms, but it enjoys no power in the American system of government outside of that role. The primary reason that the gun-control movement has failed to achieve its objectives in recent decades is that the public steadfastly opposes its agenda. The simple truth here is that, in both Congress and in the states, the votes aren’t there because the voters aren’t there.

But the courts have blocked common-sense gun control!
It is certainly true that the courts have upheld the original meaning of the Second Amendment in recent years. But, as of yet, the practical effects of this have been limited to a handful of recalcitrant states whose laws were so extreme as to have forced the judiciary’s hands. Thus far, the shift in favor of the right to keep and bear arms has been driven by the electorate, not by judges.

Gah. I just hate guns.
And that’s your prerogative. But all you’re telling me by noting that is that you, personally, aren’t a threat to anyone. That’s good. But it doesn’t help us solve the problem, which is that there are people who aren’t like you who exhibit ill-intent toward others. Those people don’t care whether or not you like guns. They don’t care about gun-free zones. They don’t care about permitting processes. This is why law-abiding citizens need the right to keep and bear arms.

New Hampshire: Critical Pro-Gun Privacy Bill Signed Into Law

On Friday, July 12th, Governor Chris Sununu (R-New Hampshire) signed HB 1186, “an act relative to firearm purchaser’s privacy,” into law. Thanks to the tireless work of leading New Hampshire gun rights advocate Rep. Jason Janvrin (R-Rockingham District 40) and the strong support of NRA members, New Hampshire becomes the seventeenth state to protect the privacy of law-abiding gun buyers by prohibiting financial institutions from collecting and misusing their personal information.

The NRA and its members thank Governor Chris Sununu, Rep. Jason Janvrin, and pro-gun New Hampshire lawmakers for supporting Granite Staters’ Second Amendment rights.

In the Fall of 2022, the International Organization for Standardization (ISO) approved a Merchant Category Code (MCC) for firearm retailers. MCCs are used by payment processors (like Visa and Mastercard) and other financial services companies to categorize transactions. MCCs enable payment processors and banks to identify, monitor, and collect data on certain types of transactions. Before the ISO decision, firearm retailers fell under the MCC for sporting goods stores or miscellaneous retail.

Collecting firearm retailer financial transaction data amounts to surveillance and registration of law-abiding gun owners. Those promoting this scheme are in favor of firearm and gun owner registrations. Therefore, it should be assumed that the goal of this program is to share all collected firearm retailer MCC data with government authorities and potentially private third parties that may include gun control organizations and anti-gun researchers.

HB 1186 prohibits the assigning of a specific merchant category code to the sale of firearms, ammunition, or firearm accessories and provides a civil penalty for violations.

This critical legislation protects gun-owners privacy and ensures that bad actors cannot use credit and debit card transactions to create a gun-registry or block cardholders from making gun-related purchases.

Financial Surveillance: Why We Have To Prevent Liberal Organizations From Subverting The Second Amendment

There is no such thing as a free nation where the police and military are allowed to keep and bear arms and citizens are not. Our Founding Fathers understood this and enshrined the basic right to self-defense in the U.S. Constitution. The Second Amendment guarantees the absolute ability to live in peace without fear.

The U.S. Supreme Court has, time and again, reaffirmed that right. Yet elected Democrats and other stakeholders continue their all-out assault on this freedom with the ultimate goal of denying law-abiding Americans the opportunity to purchase and carry guns.

That’s why, in 2022, I became concerned when Visa and Mastercard announced they would separately categorize and track purchases for guns and ammunition. This move followed the International Organization for Standardization (ISO), an international standards organization based out of Europe, approving an application for a firearm-specific Merchant Category Code (MCC). This move would set a dangerous precedent targeting legal gun owners, the vast majority of whom are Republicans or independents who lean Right.

A specific MCC for gun purchases would subject Americans attempting to exercise their constitutional rights to unnecessary and unethical surveillance. If rolled out, a national gun registry would be closer than ever, even though it is prohibited by federal law. The Left, however, does not care about the rule of law and they certainly aren’t hiding their desire to take away your freedoms. An elected Democrat recently called a federal gun registry a “wonderful idea.”

A gun-specific MCC is a clear threat to the privacy and Second Amendment rights of all Americans. Not only does it present an easy opportunity for liberal institutions to de-bank firearms sellers, which is abruptly closing financial accounts for religious and political reasons, but it could also discourage Americans from exercising their Constitutionally-protected rights. Importantly, the MCC would do absolutely nothing to improve public safety.

The application for a gun- and ammo-specific MCC came from Amalgamated Bank in 2022, a blatantly Left-wing company that dubs itself America’s “socially responsible bank” and proudly says deposited money supports “sustainable organizations, progressive causes, and social justice.” Upon further examination, it’s clear the organization is closely connected to the Democrat Party. The New York Times in 2015 even called it “the left’s private banker.”

Clients of the union-owned bank include President Joe Biden, Elizabeth Warren and Nancy Pelosi. Additional past and present clients include the Democratic Governors Association, the Biden Foundation, the Democratic National Committee, and Ready for Hillary 2016. Not exactly ardent defenders of the Second Amendment.

Amalgamated has also explicitly called for unconstitutional red-flag laws and says it discriminates against gun, nuclear weapon and ammunition manufacturers and distributors. Radical private organizations like this and the ISO should be nowhere near our Second Amendment.

At the time of the approval, Amalgamated Chief Executive Priscilla Sims Brown said the move “answers the call of millions of Americans who want safety from gun violence.” Does this call supersede the constitutional right to keep and bear arms? As a state representative serving the people of Northwest Tennessee, I can tell you my constituents would say that coastal elites and liberal corporations better stay far away from their guns and finances.

That’s why I set out to ensure this gun tracking scheme would never happen in the Volunteer State. This year, I sponsored the Second Amendment Financial Privacy Act, which was passed by the General Assembly and went into effect July 1. This new law will prohibit financial institutions from requiring retailers to use a specific MCC for firearms sellers in Tennessee.

Law-abiding Americans deserve to make these purchases without fear of liberal corporations and an overbearing federal government coordinating to spy on them. I was proud to provide that peace of mind to Tennesseans with the passage of this new law.

Just before the new law took effect, Tennessee Attorney General Jonathan Skrmetti warned that Visa, Mastercard and American Express were potentially gearing up to ignore it.

“Specifically, I am concerned that your compliance efforts are not sufficient and will allow you and other financial institutions to continue to utilize impermissible codes in violation of Tennessee law,” he said in a June letter to the chief executives of each company.

No credit card company should be able to cancel the votes of millions of Tennesseans by disobeying our policies.

We’ve already seen the Orwellian-like behavior from the Biden Administration and the private companies all too willing to hand over sensitive information. Earlier this year, the House Judiciary Committee revealed federal investigators had asked financial institutions to search customer transactions for various MCCs, stores and phrases, including Cabela’s, Bass Pro Shops, Dicks Sporting Goods, and MAGA.

The goal? Rooting out alleged “extremism” following the events at the U.S. Capitol on Jan. 6, 2021.

If the federal government and private companies are already using banking information to target conservatives, ask yourself why they might want a separate MCC for firearms and ammunition sellers. It’s clear that in attempting to force these codes on Americans, they are also attempting to reshape what the Second Amendment means in our country.

Americans are tired of these people and groups pushing an agenda contrary to our founding ideals. I’m proud Tennessee has taken a stand against the ever-increasing leftist corporate-government alliance meant to intimidate and silence Christians and conservatives. It’s time every state stands with us.

Russell ‘Rusty’ Grills represents District 77 in the Tennessee House of Representatives

Court Holds Federal Ban on Home-Distilling Exceeds Congress’ Enumerated Powers.

Yesterday, in Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau, a federal district court in Texas held that federal laws banning distilled spirits plants (aka “stills”) in homes or dwellings exceed the scope of Congress’ enumerated powers. Specifically, the court concluded that the prohibitions exceed the scope of the federal taxing power and the Interstate Commerce Clause, even as supplemented by the Necessary and Proper Clause. The court further entered a permanent injunction barring enforcement of these provisions against those plaintiffs found to have standing (one individual and members of the Hobby Distillers Association.) The plaintiffs were represented by attorneys at the Competitive Enterprise Institute, and background on the case (and the various filings) can be found on CEI’s website here.

Hobby Distillers Association has the potential to be a significant post-NFIB challenge to the expansive of use of federal power. A few excerpts from the decision are below the jump.

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BLUF
In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.

Analysis: The Death of Chevron and the Future of Gun Litigation

Friday brought a rare instance of a no-nonsense Supreme Court decision unambiguously reversing prior precedent in a way that has far-reaching consequences–but maybe not for gun policy.

Loper v. Raimondo saw the Court stating, in no uncertain terms, that Chevron, “a decaying husk with bold pretensions,” is overruled. Twitter–and my email inbox–were ablaze with theories about what this might mean for gun litigation. In all likelihood, though, the impact on Second Amendment cases will be more muted than many expect.

It’s easy to understand why people might think Chevron would have had an outsized impact on the firearm space. After all, it seems as though the ATF–an administrative agency–has been the primary source of tumult for gun owners over the last three administrations. Where an admin agency is the source of pain, it seems natural to presume a legal concept that advantages administrative agencies would be a huge lever in that conflict. But practitioners and astute spectators alike would observe that Chevron hasn’t been invoked in the gun space very often at all.

Simply stated, Chevron’s death won’t be as dramatic as some commentators expect in the gun law arena largely because the ATF has been expressly disclaiming and attempting to avoid its application for years. Likely knowing Chevron was on shaky ground, and because its application to laws with criminal penalties is inappropriate, the government has fairly consistently simply asserted in gun cases that its legal arguments are ordinary legal arguments rather than agency arguments entitled to deference under Chevron.

To understand the tension here, it’s important to understand what Chevron actually did. Even when it was at its strongest, the application of Chevron was limited to situations where the statutory provision being litigated over was ambiguous, and there was a “permissible” agency interpretation. In those instances, the court would defer to the agency’s interpretation of the law, even if the court disagreed with the interpretation.

Chevron was always controversial, as it was in tension with the core legal principle that courts are the only ones who can say what the law is. That’s why the Supreme Court began walking Chevron back almost as soon as it was decided.

In fact, the Supreme Court hasn’t deferred to an agency interpretation under Chevron since 2016.

More pointedly, though, there is a critical reason you won’t see the government arguing that gun laws are ambiguous, which had always been a threshold question in Chevron cases. Why? Because gun laws almost always involve criminal penalties, and the longstanding rule of lenity states that in cases involving criminal consequences, any ambiguities in the law must be resolved in the least restrictive manner. This would make the road to proper reliance on Chevron, on the part of the government, a minefield of instant losses.

That is not to say that the death of Chevron won’t have any impact on gun litigation. But it will most likely be more nuanced than revolutionary.

For example, as explained, the ATF has been making its legal arguments for years now by basically saying, “this is how you ought to read the law, even if you weren’t deferring to us.” Even where Chevron wasn’t supposed to be applied, including in criminal cases, it’s quite likely the overarching idea of Chevron–that administrative agencies are experts and thus know more about the laws they are tasked with–has poisoned the minds of judges all the way down, manifesting as subconscious deference to the agency’s interpretation of the law.

This vestige of Chevron is probably the most lasting, and unfortunately–as the dissent in Loper makes clear–that idea will be very hard to shake. The simple fact is, though, that no matter how technical a statute is, they are meant to have come through the legislature, which is–for better or for worse–a bunch of lawyers. While nerdy, lobster-clawed science-types at the EPA might have nuanced understandings when it comes to sniffing nitrogen, that doesn’t change the fact that laws have to be consistently interpreted.

In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.

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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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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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.

misconstrue:
verb
To interpret erroneously…

erroneously:
adverb
In a way that is wrong or false…

Nothing out of the ordinary for demoncraps

Critics Fundamentally Misconstrue the Supreme Court’s Bump Stock Ruling

After the Supreme Court overturned the Trump administration’s bump stock ban last week, critics complained that the justices had interpreted the Second Amendment in a way that rules out perfectly reasonable gun regulations.

That was an odd complaint, because the case did not involve the Second Amendment.

Sen. Chris Murphy (D-Conn.) saw last week’s decision as a sign that the Supreme Court plans to “fundamentally rewrite the Second Amendment,” which will “make it very hard for Congress or state legislatures to be able to regulate guns.” MSNBC commentator Joyce Vance had a similar objection: “Does the history & tradition of our country really suggest the Founding Fathers meant for the 2nd Amendment to arm Americans with guns that fire 400 to 800 rounds per minute?”

Although Murphy is a lawyer and Vance is a law professor, they completely misconstrued what this case was about. The Supreme Court ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its statutory authority when it tried to ban bump stocks.

The products the ATF targeted are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, resetting the trigger. As long as the shooter maintains the requisite amount of forward pressure and keeps their finger in place, the rifle will fire repeatedly.

The “interpretive rule” at issue in this case, which was published in Dec. 2018 and took effect three months later, banned stock replacements that facilitate this rapid-firing technique by allowing the rifle’s receiver to slide back and forth. The ATF did that by classifying rifles equipped with bump stocks as machine guns, which contradicted the statutory definition and the agency’s long-standing interpretation of it.

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The new Minutemen buy guns

As we approach 60 consecutive months of more than a million gun sales, it’s time to review the state of gun ownership in America, and enjoy the tears of anti-liberty/gun cracktivists.

According to a report by the National Sports Shooting Foundation (NSSF), the number of people who became first-time gun owners since 2020 has reportedly grown to over 22.3 million people, or the population of Florida.

Keep in mind every federal background check prior to purchase, can account for more than one gun. Why would so many Americans become new gun owners? In a word: Democrat/socialist/communist (D/s/c) policies:

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Why It’s Never Just About the Second Amendment

The Second Amendment is part of the Bill of Rights, the first ten amendments to the Constitution. They were ratified when the ink was only just dried, in part because the Founding Fathers recognized that absent certain protections, some rights would be tempting to infringe upon.

The First Amendment protects pretty much every form of speech and keeps the government from having a state religion, which would arguably be another way to control speech.

The Second Amendment is the insurance policy that makes sure we can protect all the other rights from a tyrannical government. After all, a document isn’t going to be sufficient to deter a tyrant, as we well know.

And that brings me to the recent win before the Supreme Court by the NRA. While the matter is far from settled, it’s clear that the justices were less than pleased by the attack on free speech by a New York state official.

In the process, we can see how rights complement one another, which is why they all need protection.

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Jury is chosen in Hunter Biden’s federal firearms case and opening statements are set for Tuesday

WILMINGTON, Del. (AP) — A jury was seated Monday in the federal gun case against President Joe Biden’s son Hunter, after prospective panelists were questioned about their thoughts on gun rights and drug addiction while the first lady watched from the front row of the courtroom.

Opening statements were set to begin Tuesday after the jurors — six men and six women plus four women serving as alternates — were instructed by Judge Maryellen Noreika not to talk or read about the case.

Hunter Biden has been charged in Delaware with three felonies stemming from a 2018 firearm purchase when he was, according to his memoir, in the throes of a crack addiction. He has been accused of lying to a federally licensed gun dealer, making a false claim on the application by saying he was not a drug user and illegally having the gun for 11 days.

The case is going to trial following the collapse of a plea deal that would have avoided the spectacle of a trial so close to the 2024 election. Hunter Biden has pleaded not guilty and has argued he’s being unfairly targeted by the Justice Department, after Republicans decried the now-defunct plea deal as special treatment for the Democratic president’s son.

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Justice Sotomayor is the absolute most left/anti-gun one on the court. For her to write this decision must have chapped her hide.

Supreme Court unanimously rules for NRA in free speech fight

The Supreme Court unanimously ruled Thursday that the National Rifle Association (NRA) can move forward in its free speech fight against a former New York regulator.

Authored by liberal Justice Sonia Sotomayor, the ruling revives the gun-rights group’s First Amendment claim against Maria Vullo, who formerly ran the New York Department of Financial Services.

Vullo began investigating the NRA in 2017, and the probe led her to encourage insurers and banks she regulated to sever ties with the gun-rights group after the Parkland, Fla., school shooting that killed 17 students and staff and reignited a national debate surrounding gun control measures.

The NRA contended Vullo’s steps went beyond permissible advocacy and crossed into unconstitutional government coercion.

Thursday’s decision enables the NRA’s case to proceed, but the gun-rights group won’t necessarily pull out a victory in the end, as its legal burden will rise in later stages. The justices also made clear that a lower court could still find Vullo is entitled to qualified immunity, even if her actions were unconstitutional.

“Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law,” Sotomayor wrote.

“She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy,” the opinion continued. “Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.”

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Louisiana Passes Second Amendment Financial Privacy Act

BATON ROUGE, LA. (May 28, 2024) – Today, the Louisiana Senate gave final approval to the “Second Amendment Financial Privacy Act,” a bill to prohibit financial institutions from using a credit card merchant code that would enable the tracking of firearm and ammunition purchases.

Sen. Blake Miguez filed Senate Bill 301 (SB301) on March 1. The bill would prohibit any financial institution operating in the state from requiring or permitting “the assignment of a firearms code in a way that distinguishes a firearms retailer from other retailers.”

SB301 also prohibits all state and local government entities from keeping any list, record, or registry of privately owned firearms or the owners of such firearms. Financial institutions would be prohibited from denying a transaction based on the code. Those found guilty in a court of violating the law would be subject to a fine not to exceed $1,000 per violation, with the court determining the amount by factors “including the financial resources of the violator and the harm or risk of harm to the rights under the Second Amendment to the United States Constitution and Article I, Section 11 of the Constitution of Louisiana, resulting from the violation.”

On April 16, the Senate passed the bill by a vote of 28-11. Last week, the House approved the measure with some technical amendments by a vote of 74-26. Today, the Senate concurred with a vote of 27-9.

Over the 2023-2024 legislative sessions, at least 13 states have passed similar legislation.

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