Category: RKBA

Grassroots Judicial Report—September 30, 2026

What’s New — United States Supreme Court: Sept. 28 long conference summary; New York: Second Circuit: Defending Education v. Croton-Harmon Union Free School District: Docket No: 24-1900: Although this is not a 2A case, the court held that an organization may sue on behalf of its members under § 1983 when it satisfies the traditional test established in Hunt v. Washington State Apple Advertising Commission.

An important procedural matter for 2A cases: Hawaii: Ninth Circuit: En Banc: Yukutake v. Lopez, No. 1:19-cv-00578-JMS-RT: As of the 6-5 en banc decision, Hawaii may enforce both the 30-day handgun permit-expiration provision and the specified in-person firearm-inspection requirement;

Delaware: Third Circuit: Rigby v. Jennings: Case 1:21-cv-01523-MN: Decision:Filed 09/10/26 Judge Maryellen Noreika. A new Delaware law purports to “fix” this decision.

Week ending September 25

A review of the week’s available federal-court and Supreme Court materials did not reveal a new Supreme Court merits ruling, certiorari grant or denial squarely presenting a Second Amendment question, federal circuit merits opinion, or consequential preliminary-injunction ruling concerning the constitutional validity of a firearms restriction. However an en banc 6-5 ruling in  Yukutake v. Lopez that reversed the district court and the 3-judge panel’s injunction will probably be on its way to SCOTUS seeking certiorari.

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DOJ Broadens Lawsuit, Targets San Jose Insurance Requirement for Gun Owners as Well

On Tuesday, the Department of Justice (DOJ) amended its original complaint against San Jose, California’s concealed carry license fee so as to target the city’s liability insurance requirement for gun owners as well.

Breitbart News reported the DOJ’s initial complaint against San Jose, noting that it centered on the city’s “presumptively unconstitutional” concealed carry license fee of roughly $1,600.00.

But the DOJ has now amended the complaint so as to go after San Jose’s liability insurance requirement for gun owners, too.

The San Jose Police Department noted that the city has a Gun Harm Reduction Ordinance which “requires firearm owners to obtain and maintain liability insurance and pay an annual gun harm reduction fee.”

The DOJ’s amended complaint lists San Jose’s liability insurance requirement and Gun Harm Reduction Ordinance under the heading, “Abusive Fees.”

Author, Self-Described Gun Control Proponent, Says Gun Bans Don’t Work

A British-Canadian journalist and self-described gun control advocate who has authored a new book being released today—The American Way of Killing—told Time magazine in a Sept. 22 interview that he doesn’t think bans on so-called “assault weapons” work, and he also acknowledged the elimination of handguns is not likely possible.

Malcolm Gladwell, a staff writer at The New Yorker for the past 30 years, has published eight books relating to the social sciences. He has finally gotten around to discussing gun-related violence in the U.S., but it is not clear that he understands the importance of the Second Amendment, and right-to-bear-arms tenets woven into more than 40 state constitutions.

Asked by Time editor-at-large Belinda Luscombe whether he thinks banning modern semiautomatic rifles—the so-called “assault weapons” now the subject of an appeal to the U.S. Supreme Court with oral arguments scheduled Dec. 2—his reply was blunt.

“No. Assault-rifle bans of the sort that have been passed and contemplated in the United States are completely pointless,” Gladwell stated. “They’re just a charade, and they are a distraction from the real issues. I think gun control can play an important role in violence prevention. But empty theatrical exercises in removing a class of rifles because they look a certain way do not move the needle.”

Coming from a gun control proponent, that amounts to blasphemy. And while Gladwell sticks to his guns (no pun intended), he admits the elimination of handguns in the U.S. is unlikely.

Aside from Supreme Court rulings that handguns are protected by the Second Amendment—which protects the right to keep and bear arms from government infringement—he just doesn’t believe removing them is possible.

“There’s the obvious political thing that people with guns are the most motivated to fight hardest politically,” he observed. “The Supreme Court currently has been captured by a majority of people who believe very strongly in gun rights. I don’t know how many hundreds of millions of guns there are in America, but there’s a lot. Practically speaking, I don’t know how you get rid of them. No one’s ever answered that. I’m as big an advocate of gun control as anyone else, but I have no clue about how it would work if it was passed. I mean, are you going into people’s homes to remove their guns? Very few gun-control advocates have a good answer to that question.”

Gladwell doesn’t mention the high court rulings which say gun ownership, especially handgun ownership, is protected by the Constitution. But he does point a finger at liberals who are adverse to recognizing that irresponsible people use guns to kill people, and that the gun, itself, doesn’t make that call.

“One of the many annoying things about the gun debate in America is the extent to which liberals roll their eyes at ‘Guns don’t kill people; people do,’” he told Time. “I understand their aversion to it because it was dreamt up by people who wanted to escape any responsibility at all for the presence of guns in America…One of the irresponsible things about progressive views on gun violence is the extent to which they use their legitimate antipathy towards guns as an excuse not to address more fundamental issues about human behavior.”

He also maintains that the so-called “epidemic of gun violence” often claimed by anti-gunners, is “an epidemic we invented.”

He doesn’t think criminal activity in the U.S. is inherent, but a problem “that was brought about by a wide set of very specific choices, misapprehensions, and errors.”

In a proverbial nutshell, Gladwell may have unwittingly indicted the political left. They don’t like guns, but their solutions, such as banning the most popular rifle in America, are non-starters. In reality, they really have no solutions at all that will pass muster under the Second Amendment, which is enjoying something of a revival under the Roberts Supreme Court, and many observers expect that to be strengthened even more when the Court rules on the constitutionality of semi-auto bans sometime in mid-2027.

ATF Says Suppressor and SBR Guidance Could Arrive Within Weeks

During “The Briefing,” an FFL compliance event hosted by FastBound, several high-ranking officials from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) attended, including ATF Director Robert Cekada, who answered industry questions.

Most attendees wanted guidance on transfers of suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs), and any other weapons (AOWs). Director Cekada could not give specifics, but he offered hints about what is coming down the pike.

The biggest question is when the ATF will release the guidance. According to Cekada, the rule is not done, but it is close. He highlighted that the ATF is only one stakeholder involved in the new guidance. The other two are the Department of Justice (DOJ) and the White House. AmmoLand sources believe the White House is delaying the guidance’s release. According to the director, he believes the guidance will be released in the next couple of weeks.

 

The goal of the guidance is to cover as many Americans as possible while protecting the gun owners covered by it from future anti-gun administrations.

The ATF will most likely not expand the injunction to a universal level. The guidance will address several big questions and issues. With more than 2.3 million suppressors sold this year, according to former NFA Chief Steve Albro, the need for guidance is immense.

One issue the guidance will address is the transfer of SBRs and SBSs. Currently, although these items are protected under the Silencer Shop Foundation case, an ATF Form 4 is required to transfer them because of the Gun Control Act (GCA) attorney general notification requirement. The guidance will “fix” that carve-out, which seems to imply that SBRs and SBSs can be transferred on a Form 4473 alone.

Cekada was clear that these items, and long guns in general, are not an issue. At the Briefing, Cekada called out groups whose goal is to demonize these guns.

Another issue the guidance will address is interstate travel with covered NFA items. The regulation will cover those situations. Also, 15 states require buyers of some covered items to comply with federal law. According to Cekada, the guidance may address that issue, although ATF Chief Legal Counsel Robert Lieder clarified that the ATF cannot force these states to take the bureau’s advice.

AmmoLand asked Director Cekada about guidance for industry operations inspectors (IOIs) on how to handle dealers they find transferring suppressors on a Form 4473 during an inspection. Cekada was adamant that a federal firearms licensee (FFL) found to be transferring suppressors on a Form 4473 will not be cited for violations. Former NFA Chief Albro later echoed this, saying the ATF’s policy is to presume all suppressors transferred via a Form 4473 were legally transferred.

One interesting topic that was brought up was forced reset triggers (FRTs). Cekada said some FRTs are true FRTs, but some on the market are machine guns, and he declined to name the specific FRTs the ATF thinks might be machine guns. He said the ATF has to look at how the trigger mechanism works but will go by the statutory definition of a machine gun.

Throughout the meeting, the ATF discussed changes to Form 4473. Those changes are still in progress. Things like the “County” box will be eliminated. According to Lieder, the ATF is making changes to the forms to comply with court rulings such as the Supreme Court’s Hemani case, which invalidated the firearms prohibition on marijuana users. The new Form 4473 will not be out until after the holiday season.

Mr. Lieder also covered the DOJ Office of Legal Counsel (OLC) opinion letter on sales of handguns and handgun ammunition to 18- to 20-year-olds. Lieder says the ATF is working on its systems to allow those transfers. The ATF was not informed that the letter would be issued.

Although the ATF will allow transferring handguns to these young adults, the ATF is likely to keep the age for transferring machine guns and destructive devices at 21. The ATF will release guidance in the coming weeks, according to Lieder.

The ATF will continue working on NFA rules dealing with suppressors, SBRs, SBSs, and AOWs. He wanted to make it clear they are not working on these rules despite the injunction. The goal of these rules is to backstop the current injunction in case something changes in the future. It is basically trying to future-proof against a future anti-gun administration. During this discussion, someone asked whether the ATF has plans to make the injunction “fairer” to those not covered. Lieder said their goal is to try to make any guidance as fair as possible without exceeding its power.

Mr. Lieder sees the biggest threats to the Second Amendment as private regulations and lawsuits. He highlighted monopolies and duopolies like common carriers and ride-share companies. He highlighted Waymo calling the police on a rider for having a gun. He also pointed to state lawsuits against firearm manufacturers.

Another hot topic was internet sales. According to Lieder, the industry is split. They are still considering comments from the rulemaking process, but he said those transfers are already legal under the law. The roadblock was ID verification, which is no longer an issue.

Another rule was hinted at but not confirmed: changes to “sporting purposes.” Lieder said they have been researching the law and might be reaching out for comments soon. These statements point to the rulemaking process, although nothing was confirmed.

Overall, the ATF answered many questions throughout the day, though some remain.

Second Shot at the Second Amendment: Could Heller Be Undone by an Errant Qualifier?

Many of us are gearing up with columns previewing the Court’s October term and have highlighted the upcoming arguments over bans on AR-15s and semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins).

In a recent column, Professor Rory Little suggests that these cases will strike at what he considers a glaring flaw in the Heller decision that recognized the individual right under the Second Amendment. Professor Little repeats a common claim about Heller that some of us have challenged. I wanted to briefly address that controversy again.The column appeared in Scotusblog, a respected site that offers tracking and commentary on pending Supreme Court cases.  Here is the portion that I wanted to address:

The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently.

Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns).

I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”

As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” and the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791.

Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis).

This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011.

Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.

As others have noted, this is an old saw repeated by many critics of Heller.

Justice Scalia anticipated this argument in the actual Heller decision. He wrote:

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

As I recently discussed in a column, this issue came up nine years ago when Massachusetts attempted to ban stun guns. The Court issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that sent back a case to the First Circuit and rejected the logic that they were not in common use at the time of the Second Amendment’s enactment. The Court pointed out that in District of Columbia v. Heller, 554 U. S. 570, 582 (2008), it expressly rejected that argument and held that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” It also rejected two other rationales. (Notably, the Court is considering another stun gun case in Calce v. New York after the Second Circuit failed to heed the warning of the Court).

Notably, a new challenge has been filed in Connecticut over a ban of convertible handguns. It is likely to raise many of these same issues. The Firearm Industry Trade Association filed a lawsuit this week that will be before the district court as the Supreme Court hears arguments on the two pending cases.

I obviously disagree with Professor Little and other experts who raise this claim. There are, of course, good-faith arguments against the Heller decision. Some like Professor Little view that decision as “earth-shattering.” I do not. I still believe the Court was correct in viewing this as an individual right. However, I do not believe that this claim of a glaring and hypocritical contradiction between Heller and later cases is fair or supported. There was no sleight of hand in “changing ‘were’ to ‘are.’”

This really does not come down to a change in verbs. While many hope that packing the Supreme Court will result in an immediate reversal of Heller, it is unlikely to turn on the word “were.”

Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”

New Jersey Faces Lawsuit Over Knife, Baseball Bat Ban For Self-Defense

pro-Second Amendment group led a lawsuit Monday seeking to have New Jersey’s laws barring the carrying of items like baseball bats and knives for self-defense thrown out.

The Association of New Jersey Rifle & Pistol Clubs and Knife Rights filed the lawsuit on behalf of four individual plaintiffs, arguing that by prohibiting the use of items other than firearms for self-defense, New Jersey was violating the Second Amendment rights of residents. The complaint said that the state has been in “panic mode” since the Supreme Court’s decision in Heller v. District of Columbia.

“New Jersey demands that its citizens be defenseless when they go about their day in public. Defenseless. Until forced to issue Permits to Carry a Handgun by the Bruen decision in 2022, New Jersey banned its citizens from carrying any weapon for self-defense,” the complaint filed Monday says. “Still today, New Jerseyans cannot carry any ordinary object for protection against violent crime, not a baseball bat, not a stick, not a knife, not a pair of scissors, not anything. If a person keeps an ordinary baseball bat in her car or if she keeps a small baton (sometimes called a kuboton) on her keychain she can find herself arrested and thrown in prison under New Jersey law.”

“The Second Amendment protects all common arms not just guns. There are many situations in which a person may prefer to defend against violent attack with something other than a firearm,” the legal filing continued. “New Jersey does not allow that. This is how a single mom using a carpet cutter to defend herself and her young daughter against a violent and potentially fatal beating found herself a convicted felon.”

In a 1990 decision from the New Jersey Supreme Court, the conviction of a single mother for carrying a carpet cutter and using it to protect herself when an ex-boyfriend was beating her was upheld.

The Supreme Court has already ruled on non-firearms being protected, issuing a unanimous ruling in Caetano v. Massachusetts that held that stun guns were protected by the Second Amendment. While the main opinion was unsigned (also known as a “per curiam” opinion), a concurrence from Associate Justice Samuel Alito went into more detail.

“A weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself,” Alito wrote in a separate opinion. “Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”

“The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself,” Alito added. “To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

Second Amendment Foundation President Massad Ayoob, who has decades of experience as a law enforcement officer, firearms instructor and an expert witness in the use of force for self-defense, explained why many states tend to treat knives and other items more stringently in self-defense cases in an August interview with the Daily Caller News Foundation.

“Historically, the pistol was seen as the weapon that would be chosen by the lady or the gentleman and the knife and the club were seen as the weapons of the thug and there’s a little bit of that yet today,” Ayoob said.

NH School District Admits Unconstitutional Search of Student’s Vehicle

Because a New Hampshire teen legally owned a pistol and sometimes kept it in the glove compartment of his truck…, school officials conducted a warrantless search of the vehicle without his consent last year. They have acknowledged it was an unconstitutional search in a court agreement.

School officials in New Hampshire have acknowledged they conducted an unconstitutional search of a student’s vehicle in 2025, because he legally owned a handgun—which was not in the vehicle, nor was it ever brought to the grounds of Hillsboro-Deering High School—in full compliance with federal and state laws.

According to the Second Amendment Foundation, which filed a federal civil rights lawsuit last October on behalf of plaintiff Jack Harrington, the search was conducted “solely on the basis of school officials learning that Harrington lawfully owned a firearm in his personal life.”

The case is known as Harrington v. Crawford. The case was filed in U.S. District Court for the District of New Hampshire.

According to a stipulated declaratory judgment, “A search of a student’s person, property, or vehicle based solely on the exercise of a constitutional or legal right, including the fundamental right to keep and bears arms guaranteed under the Second Amendment to the U.S. Constitution (U.S. CONST. amend. II), which encompasses and includes the right to carry, store, or transport a handgun a vehicle or in the glove box of a vehicle, would constitute an unconstitutional and illegal search in violation of the Fourth Amendment to the U.S. Constitution.”

This search occurred after Harrington apparently mentioned his gun ownership to another student while riding in a bus enroute to a game.

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Supreme Court Likely To Invoke 5 Major Decisions In Landmark Semi-Auto Gun Ruling

The Supreme Court will hear a case in December to determine the fate of bans on modern semiautomatic firearms, with the justices likely spending the bulk of their time discussing how a handful of cases will apply to what is expected to be a landmark ruling.

The high court agreed on June 30 to hear Viramontes v. Cook County, a lawsuit challenging the ban imposed by a Chicago-area county. Which cases will the justices cite when deciding the fate of the bans on modern semi-automatic firearms that have passed in several states? These are the five likely contenders.

District of Columbia v. Heller
The court held that the Second Amendment protects an individual right to keep and bear arms for lawful purposes such as self-defense in the home, not just a collective militia right. It struck down D.C.’s handgun ban and its rule that lawfully owned guns had to be kept unloaded and disassembled or trigger-locked.

The 5–4 majority opinion, written by then-Associate Justice Antonin Scalia, said the Amendment’s “militia” language is prefatory and does not limit the operative right of “the people.” Scalia noted that the right of self-defense was a crucial component of the rights protected by the Second Amendment.

“[T]he Second Amendment conferred an individual right to keep and bear arms,” Scalia wrote.

The dissenters argued the amendment was mainly about military service and left room for broad civilian gun regulation.

McDonald v. City of Chicago
The court held that the Second Amendment right applied to state and local governments through the 14th Amendment. Chicago’s and Oak Park’s handgun bans therefore had to meet the same constitutional standard as the one enacted by the District of Columbia.

Associate Justice Samuel Alito’s controlling opinion relied mainly on due-process incorporation; Associate Justice Clarence Thomas said in a concurring opinion that he would have used the privileges or immunities clause instead. The 5–4 split tracked Heller (Associate Justice Sonia Sotomayor replaced David Souter), with the dissenters warning that incorporation would sweep away a lot of state and city gun laws.

“[T]he Second Amendment right is fully applicable to the States,” Alito wrote.

After the McDonald decision, the United States Court of Appeals for the Seventh Circuit would strike down Illinois’ ban on carrying concealed firearms, forcing the state to eventually pass a “shall issue” law regarding concealed carry permits.

Caetano v. Massachusetts
In a short unsigned opinion (called a “per curiam” opinion), the court vacated a Massachusetts Supreme Court ruling that stun guns were not protected by the Second Amendment. It reiterated that the right covered bearable arms even if they did not exist in 1791, and that the right applies to the states.

Thomas and Alito wrote separately to emphasize that a modern self-defense weapon cannot be banned just because it is new or uncommon in the military. The case was sent back, and Caetano was later found not guilty under the state stun-gun ban.

This case could play a key role in how the high court will decide Viramontes, since many supporters of bans on so-called “assault weapons” often claimed that the Founders had no concept of what modern firearms could do.

New York State Rifle & Pistol Association v. Bruen
The court struck down New York’s “proper cause” requirement for a license to carry a handgun in public. The justices ruled that law-abiding people with ordinary self-defense needs have a Second Amendment right to carry commonly used arms outside the home.

Thomas’s opinion rejected the two-step interest-balancing test many lower courts used after Heller and McDonald. Instead, a gun regulation survived only if it fits the nation’s historical tradition of firearm regulation.

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Thomas wrote. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Wolford v. Lopez
The court held that Hawaii may not make it a crime for licensed concealed-carry holders to bring handguns onto private property open to the public unless the owner gives express permission. That default ban, the majority said, hobbled the right to carry for self-defense in everyday life.

Alito wrote for a 6–3 majority that the law was inconsistent with text and history after Bruen. Alito took particular aim at the Hawaii Supreme Court for its assertion that the Second Amendment had to yield to the “Aloha spirit.”

“As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U. S., at 784–785. It cannot give way to ‘the spirit of Aloha’ in Hawaii any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald),” Alito wrote. “It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%).”

The dissenters treated the statute more as a property-law default than as a gun ban and argued it left owners free to allow carry if they wanted.

The Supreme Court will hear oral arguments in Viramontes on Dec. 2, with the ruling expected to be released sometime in June 2027.

1791 Does Not Give You a Menu

The Founders did not say a State may pick a manner of carry and extinguish the other. Concealment-as-such is not a 1791 category. When the early republic later regulated manner — starting in 1813 — it regulated secrecy and left open carry standing. Chandler and Nunn are that analogue, not a State menu.

Madison’s text is “keep and bear.” St. George Tucker, writing the first major American Blackstone in 1803, treats the Amendment as the “true palladium of liberty,” self-defense as “the first law of nature,” and stresses that unlike England the American right has no “condition or degree” qualifier. (Tucker, Blackstone’s Commentaries, 1803, app. 300.) He is attacking disarmament-by-pretext (game laws), not drafting a concealed-vs-open codebook. He never says the legislature may elect one mode and abolish the other.

If you want a Founding-era practice rule, it is this: peaceable public carry was not a crime in the early republic, and concealed-weapons statutes almost do not exist until 1813 onward. Kopel’s count is eight states before 1846, mostly Southern plus Indiana. That inventory is Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999). That timing matters. A wave of dirk / Bowie / “secret assassination” statutes a generation after ratification is not the 1791 settlement.

What the 1840s–50s Courts Actually Held — and What They Did Not

This is the layer the cases actually use.

  • Bliss v. Commonwealth (Ky. 1822) goes the other way: a conceal ban was void because it forbade a manner that was lawful when the state constitution was adopted. Kentucky later amended its constitution to authorize conceal bans. Bliss is the high-water mark that the right includes even the secret mode.
  • State v. Reid (Ala. 1840): a conceal ban can stand if the arm can still be borne openly; a “regulation” that makes the arm “wholly useless for the purpose of defence” would be void.
  • Nunn v. State (Ga. 1846): the conceal half of the statute stands; the open-carry prohibition is “in conflict with the Constitution, and void.” Heller later cites Nunn with approval.
  • State v. Chandler, 5 La. Ann. 489 (1850): the 1813 act is valid because it “interfered with no man’s right to carry arms … ‘in full open view.’” That open mode “is the right guaranteed by the Constitution of the United States.” Concealment was the vice (secret advantage / assassination). Openness was the equality condition.

Read those holdings in order and the modern slogan falls apart. They are not “the State may choose open or concealed.” They are “the State may burden the secret mode because the constitutional mode remains.”

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On the local scene

Sheriff, AG sue to end some firearm registrations

Dave Marshak, the Jefferson County sheriff, said he joined a lawsuit to eliminate federal registration requirements for short-barreled rifles and suppressors, also called silencers, to protect the rights of law-abiding gun owners.

On Sept. 8, Missouri Attorney General Catherine Hanaway and Marshak filed the lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the U.S. District Court for the Eastern District of Missouri.

Marshak said he is participating in the lawsuit as a state resident and not as the sheriff. He said Jefferson County will not pay any money to help finance the suit or cover his legal expenses.

The lawsuit alleges federal restrictions are unconstitutional when applied to short-barreled rifles and suppressors because those items are protected under the Second Amendment, and Congress’ decision to zero out taxes on the purchase of certain short-barreled firearms, suppressors and other weapons invalidated the ATF’s authority to require registration of a gun or firearm accessory’s owner.

“I believe strongly in both the rule of law and the Second Amendment,” Marshak said. “I have spent my career enforcing laws and holding people accountable when they commit crimes, particularly violent crimes. At the same time, government must operate within the limits imposed on it by the Constitution.

“I don’t believe we should treat millions of law-abiding gun owners as though they are potential criminals because of what someone else might do.”

The lawsuit says the federal government’s restrictions through the National Firearms Act are unconstitutional. The NFA, enacted in 1934, has historically required owners of suppressors, short‑barreled rifles and other weapons to register them with the federal government and receive approval before a transfer.

According to the lawsuit, the registration requirements force people to share personal information “akin to that obtained from an individual being arrested and charged with a crime.”

The suit also said completing ATF forms online may take the better part of an hour, and those seeking permission to own short-barreled rifles and suppressors incur costs related to providing fingerprint information and a photograph with each application.

Hanaway argues that people who want to avoid arrest, prosecution and imprisonment for a felony violation of federal law are left with two choices: comply with onerous regulations or forgo possession of short-barreled rifles and suppressors. The lawsuit said those who do not have proper registration could face up to 10 years in prison and a fine of up to $250,000.

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A précis 

Restriction on Handgun Sales to Out-of-State Residents Violates Second Amendment

So held Elite Precision Customs L.L.C. v. BATFE, decided today by Fifth Circuit Judge Jerry Smith, joined by Kurt Engelhardt; a very short excerpt of the reasoning, but you can see the opinion for a lot more:

It is no defense of the Ban’s constitutionality to theorize that it is only a minor infringement of Second Amendment rights that still “allow[s] ample access to handguns by those who are permitted to possess and purchase them under state and local laws.” Mance v. Sessions (5th Cir. 2018) (rejecting a pre-Bruen challenge to the Ban)….

Even to the extent that the Ban can be circumvented by the licensee-to-licensee transfer workaround (which vests full veto power over interstate handgun sales in a group of third parties financially dependent on the government’s licensing regime), the Ban invariably calls for the payment of a fee over and above the cost of a handgun. We must pause before endorsing a cost attached to the exercise of a fundamental constitutional right. To the extent that prior decisions from this court hint there is an acceptable cost that may be imposed on the basic exercise of Second Amendment rights, they are abrogated by Bruen and its progeny.

Judge Catharina Haynes dissented, stating she agreed with the district court’s decision upholding the law.

David H. Thompson, Peter A. Patterson, and William V. Bergstrom (Cooper & Kirk, PLLC) and Cody J. Wisniewski (FPC Action Foundation) represent plaintiffs. Note that the Firearms Policy Coalition has in the past retained me to file some amicus briefs on their behalf, but I was not at all involved in this particular case.

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, and the Gary T. Schwartz Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law.

Fifth Circuit holds that the federal ban on direct interstate handgun purchases is unconstitutional under the Second Amendment

2026.09.18_083-1_OPINION

 

Justice Department sues San Jose, police over gun permit fee

(KRON) — The U.S. Department of Justice announced Wednesday that it has filed a lawsuit against San Jose and its police department, alleging the city charges private individuals unreasonable fees to exercise their Second Amendment right to lawfully carry a firearm.

According to a Justice Department press release, San Jose’s firearm permit fee is the highest in the country at nearly $1,600 per license.

“Indeed, San Jose’s fee towers over those imposed by the country’s biggest cities. New York, Washington, D.C., Boston and Chicago all charge a small fraction of San Jose’s fee,” the Justice Department said.

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“All law-abiding Americans have a constitutional right to bear arms for self-defense. This right is not a luxury reserved for a privileged few, but a fundamental element of our republic,” Assistant Attorney General Harmeet K. Dhillon said. “You don’t need a law degree to recognize that charging a fee several times higher than the cost of the firearm itself is illogical, and an unconstitutional attempt to impede Americans’ Second Amendment rights.”

The Justice Department said people who believe a state or local government has infringed on their right to keep or bear arms can submit a complaint through its Second Amendment Section.

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‘Safe Storage Policies™’ was already decided by SCOTUS in Heller,
as in they can’t be mandated

National gun survey highlights self-defense; Washington activists pivot to safe storage

A new National Firearms Survey finds an estimated 88 million American adults own approximately 461 million firearms as questions about guns and public safety swirl in Washington state and nationwide.

Authored by Prof. William English at the McDonough School of Business, Georgetown University, the survey contains some eye-opening information about gun ownership, including the types of firearms people own, and how many people have used them for self-defense purposes.

The results could also have a bearing on a pair of Second Amendment cases to be argued this Fall before the U.S. Supreme Court.

The report “summarizes the main findings of the second wave of the National Firearms Survey, conducted in July and August of 2026,” English writes. “Like the first wave, which was fielded in early 2021, this survey aims to provide the most comprehensive assessment of firearms ownership and use patterns in America to date, and it does so with a sample large enough to make well-powered, statistically informative inferences within individual states.”

Dave Workman, communications director for the Citizens Committee for the Right to Keep and Bear Arms told The Center Square the findings are clear evidence that increasing numbers of gun owners across the country has not translated to an increase in violent crime.

“It shows without question that during the period of 2024 to 2025, when crime was declining by more than 18%, U.S. gun ownership was probably at its peak,” said Workman.

“It really puts the lie to the argument that more guns in private hands is going to result in more violent crime across the country. More guns does not equal more crime.”

Workman noted the results could play into two cases going before the U.S. Supreme Court this fall: Viramontes v. Cook County from Illinois, and Grant v. Higgins from Connecticut.

Workman said in the Connecticut case, the fact that 24% of all firearms owners in America own an AR-15 type weapon will play into the arguments.

“It’s a challenge of the Connecticut state statute, banning these so-called assault rifles, which they’re really not,” said Workman, noting that having millions of law-abiding Americans owning AR-15s can’t go unnoticed by the high court.

“It does show, beyond any doubt, that modern semiautomatic rifles, the AR15s, the AKs….they are in common use, and that is a deciding factor as far as being protected by the Second Amendment,” he said.

“I think it’s going to knock a cornerstone of the argument out from under the gun prohibition lobby.”

The Center Square reached out to Washington’s Alliance for Gun Responsibility for comment on the firearms survey and to find out what the gun lobby priorities will be for the 2027 legislative session in Olympia.

AGR’s Chief of Staff Ryan Disch-Guzman said they believe there are many more firearms out there than the survey reflects.

“They are surveying firearms owners. But there are many more firearms out there on the black market and stolen firearms that aren’t possible to trace in a survey like that,” Disch-Guzman said.

“And that’s one of the reasons why we are going to be pushing for safe storage policies.”

He said AGR will be pressing for tougher safe-storage laws during the 2027 legislative session.

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Criminal cases coming in the new term – and why the court could and should do more

As many SCOTUSblog readers are likely aware, there are some blockbuster criminal law cases set for the Supreme Court’s upcoming term. Bans on AR-15 and similar semi-automatic rifles. Whether juries in criminal cases must always be 12 persons. Whether seizing a plane for the unlawful transport of a six-pack of beer is an unconstitutional “excessive fine.”

In fact, 11 of the 25 cases already granted for review are, by my calculation, criminal law and related (what I call the court’s “CLAR” cases). They won’t all be headline-grabbers, but 40% of the court’s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28 “long conference.” I provide more details on the already granted cases below. But first:

The court can and should take more criminal cases

Before discussing the merits of the current 11 CLAR cert grants, I want to point out that the court could do much more. Last month the Congressional Research Service put out a 68-page report on “Circuit Splits from 2025.” That little-reported document details almost 100 cases in which lower courts have disagreed (just in 2025?) on significant federal points of law. The Supreme Court has statutory jurisdiction to address such lower court “splits,” whether from federal or state courts. The Supreme Court’s Rules 10(a) and (b) expressly note that lower court “splits” on federal questions – that is, cases from different courts that disagree on some important point of federal statutory or constitutional law – are a reason for the court to grant review. Granting Supreme Court review on lower court splits makes sense, as national uniformity on federal issues is a major, and one of the oldest, reasons for having (as Article III of the Constitution begins) “one supreme Court.” What’s more, I have to believe that the CRS report did not come out of the blue but was prepared with the knowledge of (and perhaps even encouragement from?) folks in the solicitor general’s office.

By far, the largest category of unresolved such “circuit splits” listed by CRS is criminal law and procedure, with 28 cases – three times larger than the next category, civil procedure. The report provides case citations for all 28 of these (at least one from every circuit except the U.S. Court of Appeals for the 5th Circuit). Just a few examples of important questions that need settling: Is embezzlement a continuing offense that extends the statute of limitations? Is car-jacking a violent felony when the state statute also reaches extortion? Is criminal forfeiture limited to property a defendant has actually acquired (here a cert petition may be pending)? What intent is required for a civil rights violation on a county road?

To make an oft-repeated point, the Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report that has often been repeated, in 2012 Chief Justice John Roberts said that the court could hear “100 cases without any stress or strain, but the cases just aren’t there,” and he “emphasized that circuit splits are far and away the most important consideration.” The capacity of the justices to handle more cases is not an issue – more grants of review to provide national uniformity in criminal cases ought to be a priority.

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Oregon concealed carry license laws challenged by gun rights group

The lobbying group Gun Owners of America filed suit against the city of Salem and Marion County on Friday, challenging Oregon’s concealed handgun carry license laws.

The lawsuit targets restrictions that bar certain out-of-state residents from obtaining permits in Oregon and the state’s refusal to recognize permits from other states.

Cynthia Ladd, the group’s Oregon director and an Arizona resident, is the plaintiff.

In a sworn declaration filed in federal court, Ladd wrote that she’ll be visiting the state Capitol in Salem and meeting with legislators in the next 90 days as part of her lobbying work and wishes to carry a concealed handgun for self-defense in the city. But her Arizona concealed gun permit is not recognized and she can’t apply for one in Oregon.

The state, though, adopted a law in 2021 that bans guns from the Oregon Capitol, even those who have concealed handgun licenses. The city of Salem also prohibits unlicensed possession of loaded guns in the city.

The suit alleges that Ladd is “a typical, law-abiding American citizen with ordinary self-defense needs, who cannot be dispossessed of her right to bear arms in public for self-defense in Oregon simply due to her nonresident status.”

The city of Salem declined comment, citing the pending litigation, according to Robert B. Layne II, the city’s spokesperson.

To obtain an Oregon concealed handgun license, an applicant must be a resident of Oregon, or a non-resident who lives in a bordering state, including Washington, Idaho, Nevada or California.

Non-residents who live in a state bordering Oregon can apply for a concealed carry license to an Oregon county sheriff’s office that borders their state. Oregon county sheriffs, though, have discretion on whether to process non-resident applications, and many restrict them strictly to people who work or own property in their county.

Ladd’s lawsuit is one of a number of similar suits that have targeted residency barriers and out-of-state restrictions on concealed carry gun permits.

The U.S. Supreme Court’s 2022 opinion in New York State Rifle & Pistol Association Inc. v. Bruen found New York’s concealed carry laws unconstitutional. It stated that gun-control provisions had to comport with the text and “historical tradition” of the Second Amendment. Since then, state and local governments have had to show their own gun regulations are consistent with the nation’s historical tradition of firearm regulation.

Some states recognize many permits, others only a few, and others, like Oregon, only recognize their own permits granted for residents.

On Friday, the Liberty Justice Center petitioned the U.S. Supreme Court to reject the state of Minnesota’s law that requires a long-haul trucker who has concealed gun carry permits in Florida and Georgia to also obtain a license from Minnesota if he wants to carry a gun there.

Supreme Court Orders New York City to Defend Stun Gun Ban in ‘Caetano 2.0’

Six months ago, AmmoLand warned that the Second Circuit appeared ready to preserve New York City’s stun gun ban by claiming the challengers had not supplied enough evidence that electronic arms were in “common use.”

That is exactly what happened.

Now, the Supreme Court has ordered New York City to respond in Calce v. New York City, giving the justices an opportunity to stop lower courts from using that evidentiary maneuver to evade the Second Amendment.

The Court’s official docket shows that New York City waived its right to respond on August 6. On September 8, the Supreme Court requested a response anyway. The city’s brief is due October 8.

The order does not mean the Court has agreed to hear the case or ruled against New York City. It does mean the petition will not be rejected without the justices first receiving the city’s defense of a ban that should have been dead after Caetano v. Massachusetts.

Second Circuit’s Attempt at an Escape Route

In March 2025, AmmoLand’s Dean Weingarten reported that U.S. District Judge Edgardo Ramos had placed the “common use” burden on the challengers. Ramos held that stun guns and Tasers were not presumptively protected because the plaintiffs had not submitted sufficient evidence showing the arms were commonly possessed for lawful purposes.

When the Firearms Policy Coalition appealed, AmmoLand reported that the organization argued the ruling “[flew] in the face of the Second Amendment” because electronic weapons plainly fall within the ordinary meaning of “arms.”

Following the Second Circuit’s March 2026 oral argument, AmmoLand examined Mark Smith’s analysis of the case. Smith, host of The Four Boxes Diner, described Calce as a layup under Caetano. AmmoLand nevertheless warned that the panel appeared interested in a narrow procedural ruling that would leave the ban intact without directly declaring stun guns unprotected.

On April 13, the Second Circuit did exactly that.

Second Circuit Says Citizens Failed to Prove Their Rights

In a summary order, the Second Circuit affirmed summary judgment for New York City.

The panel held that the plaintiffs bore the burden of establishing that stun guns and Tasers are in common use for lawful purposes at the first stage of the Bruen analysis. It then faulted them for failing to introduce sufficient admissible evidence in the district court.

That allowed the city to win without proving that its ban is consistent with America’s historical tradition of arms regulation.

This is not a minor procedural dispute. It determines who must prove what when the government bans an entire category of arms.

Under Bruen, once the Second Amendment’s plain text covers a person’s conduct, the government must justify its restriction using history. But if a hostile court inserts “common use” into the plain-text inquiry, it can force citizens to prove that an arm is popular enough before the government carries any constitutional burden.

The government can then ban an arm, suppress its ownership, and argue that the resulting lack of ownership proves the arm was never protected. That is a constitutional Catch-22 created by the infringement itself.

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This wasn’t on my radar, but good to know it’s been – sort of – resolved.

UPDATE: Washington Reverses, Says NRA-Certified Instructors Can Teach

The Washington State Patrol (WSP) appears to have reversed course on allowing certified National Rifle Association firearms instructors to provide safety training as part of the upcoming permit-to-purchase training requirement, TGM has learned.

The problem was first reported by TGM here.

In an email to subscribers of a list of potential instructors Monday, WSP Commander Kevin Baird advised, “The email sent September 11, 2026 regarding NRA sponsorship of firearm safety training resulted from a misunderstanding of the terminology used and how the statute is written.

“I’m pleased to report that the NRA Executive Director, Josh Savani, reached out to me on Friday to clarify the NRA’s position. Based on that clarification, independent NRA-certified instructors may provide the firearm safety training required under RCW 9.41.1132 and RCW 9.41.070.

“However,” Baird continued, “as with all other training providers, WSP must still review and certify the training curriculum to ensure it includes all elements required by law. Those requirements include:

RCW 9.41.1132(1):

(a) Basic firearms safety rules;

(b) Firearms and children, including secure gun storage and talking to children about gun safety;

(c) Firearms and suicide prevention;

(d) Secure gun storage to prevent unauthorized access and use;

(e) Safe handling of firearms;

(f) State and federal firearms laws, including prohibited firearms transfers and locations where firearms are prohibited;

(g) State laws pertaining to the use of deadly force for self-defense;

(h) Techniques for avoiding a criminal attack and how to manage a violent confrontation, including conflict resolution; and

(i) Live-fire shooting exercises on a firing range that include a demonstration by the applicant of the safe handling of, and shooting proficiency with, firearms.

“We have not yet begun reviewing individual curricula,” Baird wrote. “That process will begin once we have processed the majority of the training-provider applications.

“My apologies for the confusion created by the previous email,” he said. “We are working to provide information as quickly and transparently as possible while developing the processes and procedures necessary to implement this significant undertaking. As someone described it to me last week, ‘we are building the airplane while flying it.’ We appreciate your patience and understanding as we work through these implementation details.”

Last week’s announcement created a furor, drawing longtime gun rights activist—and NRA-certified firearms instructor—Jane Milhans into the fray. She singlehandedly brought the problem to NRA’s attention, initiating a scramble on both ends, with NRA exchanging information with Baird.

The situation also drew attention from TGM, Ammoland News and radio host Jason Rantz writing about it at Seattle-Red.

As reported last week, an exchange of messages regarding whether NRA-certified instructors would be okayed to provide the necessary safety instruction required by the new state law, RCW 9.41.1132, ignited the controversy.

A message sent last week by WSP to members of a ListServ P2P group, which stated, “RCW 9.41.1132 (3) states (bolding added for emphasis): ‘The training must be sponsored by a federal, state, tribal, county, or municipal law enforcement agency, a college or university, a nationally recognized organization that customarily offers firearms training, or a firearms training school with instructors certified by a nationally recognized organization that customarily offers firearms training.

“We reached out to the NRA to determine if an NRA Certified Trainer would be considered to be ‘sponsored’ by the NRA thereby meeting the requirement of ‘a nationally recognized organization that customarily offers firearms training’.

“The answer they provided is: NO. They said because these individuals are neither employees nor contractors, and the NRA is not involved in scheduling, promoting, etc. of the classes, the NRA would not be considered as sponsoring any classes for them.”

This was the original message that set off the communications flurry resulting in Monday’s reversal.

“While NRA-certified instructors are not employees or contractors of NRA,” Savani explained, “holding a current certification does entitle an instructor to certain rights and privileges that could be seen to make them ‘sponsored’ for purposes of RCW 9.41.1132(3). For example, NRA certified instructors are permitted to use NRA trademarks in promotion of their NRA training courses. We do not allow use of our marks lightly, and use of these marks puts NRA’s imprimatur on any of our courses being taught by a certified instructor.”

Pro-2A Group Sues Oregon Over Out-Of-State Permit Recognition

A pro-Second Amendment group filed a lawsuit against Oregon on behalf of one of its lobbyists, accusing the state of leaving no way for non-residents to carry firearms for personal protection.

Gun Owners of America (GOA) and the group’s Oregon state director, Cynthia Ladd, sued the city of Salem, Oregon, and Marion County, Oregon, Sheriff Nick Hunter Friday in the United States District Court for the District of Oregon, demanding that the state’s ban on non-residents carrying firearms be ruled a violation of the Second Amendment. In the complaint, it noted that for over four-fifths of Americans, there was no option to carry firearms in the state.

“Oregon seems to believe that your constitutional rights come with a residency requirement, but the Second Amendment protects the rights of all Americans,” GOA Senior Vice President Erich Pratt told The Daily Caller News Foundation. “Law-abiding gun owners should not lose their right to carry a firearm for self-defense simply because they cross a state line.”

Oregon does not recognize any other state’s concealed carry permit, according to the National Rifle Association.

A similar case centered on out-of-state residents could be considered by the Supreme Court. Liberty Justice Center filed a petition on Aug. 24 asking the high court to hear Johnson v. Jacobsen, regarding Minnesota’s refusal to recognize a long-haul truck driver’s concealed carry permits from Florida and Georgia.

Attorneys for the state of Massachusetts failed to convince a federal judge to dismiss a lawsuit that accused the state of delaying the processing of carry permits for out of state residents. In an Aug. 28 ruling, Chief United States District Judge Denise Casper of the District of Massachusetts, an Obama appointee, allowed the litigation to proceed

In June, the Supreme Court narrowed the applicability of a federal law prohibiting users of marijuana roughly a week before it issued its ruling in Wolford v. Lopez, a ruling that struck down Hawaii’s “vampire rule” targeting concealed carry.