Category: Cowardice O’ The Day

Sixth Time the Charm for Snope at SCOTUS?

We can only hope. The Supreme Court has once again scheduled both Snope v. Brown and Ocean State Tactical v. Neronha for debate in conference this week, keeping hope alive that the justices will grant cert to one or both cases next week.

This Friday’s conference will be the sixth appearance for Snope (which is the challenge to Maryland’s ban on so-called assault weapons), while Ocean State Tactical (taking on Rhode Island’s ban on “large capacity” magazines) is up for its seventh go-round behind closed doors as the justice decide what cases they’ll accept. The good news is that neither of these cases were disposed of in today’s orders, but that still doesn’t mean that either or both are guaranteed to be heard by SCOTUS in the future.

I have to say that I’m still cautiously optimistic as well. Both Snope and Ocean State Tactical have been heard in conference since mid-December (December 4, in the case of Ocean State Tactical), which is more than enough time for Justice Thomas, Gorsuch, or Alito to write a dissent from denial of cert.

Of course, that’s also plenty of time for four justices to vote to hear one or both of these cases, and that doesn’t appear to have happened yet either.

We have no idea what’s being said during conference, or what’s causing the hold up, but there’s a slate of other Second Amendment cases that are heading the Court’s way, so the justices will have plenty of 2A topics to choose from in the near future.

A cert petition was filed in Antonyuk v. James (taking on New York’s post-Bruen carry laws) last month, and a reply is due from the New York AG this Wednesday, so that could be heard in conference in early March.

The Court has requested a response from the University of Michigan in Wade v. UofM, which challenges the university’s ban on concealed carry, and that response is due on March 10. That’s the same day that the Firearms Policy Coalition and Second Amendment Foundation must submit their response to the state of Minnesota in Jacobson v. Worth. The challenge to Minnesota’s ban on carrying for under-21s was successful at the Eighth Circuit Court of Appeals, but Minnesota Attorney General Keith Ellison is intent on defending the ban til the bitter end.

The DOJ has a deadline of March 17 to reply to the cert petition in Perez-Garcia v. United States, which is an as-applied Second Amendment challenge to firearms-related pretrial release conditions. It’ll be interesting to see how AG Pam Bondi responds to the lawsuit and whether the Justice Department will defend the current law that allows for defendants to be prohibited from possessing a firearm before they’re convicted of a crime.

California Gov. Gavin Newsom and Attorney General Rob Bonta have a March deadline of their own in B&L Productions v. Newsom, which takes on the state’s prohibition on contracting for, authorizing, or allowing the sale of any firearm or ammunition on state-owned property. The law is designed to kill off the biggest gun shows in the state, and has been upheld by the Ninth Circuit Court of Appeals. The state’s reply brief is due on March 20, about one week before the federal Justice Department’s deadline to reply in the last 2A-related case to come before the Court’s attention next month.

On March 28th the DOJ’s reply brief in Missouri v. United States is due before the justices. Missouri is seeking to defend the Second Amendment Preservation Act, which lower courts have thrown out a violation of the Supremacy Clause of the Constitution. The law was mean to block local and state law enforcement from cooperating with the feds in enforcing constitutionally suspect firearm statutes, but Missouri argues that the state has the power under the Tenth Amendment to decide which laws should be treated as null and void in the Show Me State.

As great as it would be for the Court to greenlight every one of these cases, that’s not likely to happen. Heck, at this point it’s an open question as to whether the justices will grant cert to any of these lawsuits. Fingers crossed that by this time next week we’re celebrating a grant in Snope and Ocean State Tactical instead of gritting our teeth in frustration.

Supreme Court Second Amendment Update 1-17-2025

In my last update, I wrote, “If a cert petition reaches its scheduled conference date without a justice requesting a response, then we know it was placed on the deadlist and never voted on. It was simply denied.” That remains true. Every Second Amendment cert petition that went into last Friday’s SCOTUS conference, where the respondents had either filed a waiver or did not file any response, was denied. In one case, the Feds asked for the cert petition to be granted, the lower court’s decision vacated, and the case remanded (GVR’d) back to the lower court for proceedings consistent with US v. Rahimi. With only one exception that I can recall when the Feds ask for a GVR, they get it.

I also wrote The “assault rifle” and “large capacity” magazine cert petitions were today relisted to this Friday’s SCOTUS conference of January 10th.” They survived that conference and were relisted to today’s conference. We won’t know until Tuesday whether they and the other petitions scheduled for today’s conference survived.

A response was requested for one of the petitions scheduled for today’s conference, but the Second Amendment was just one of three questions presented to the justices. I suspect that one of the other questions (most likely question 3) in Jarvis Parker, Petitioner v. Florida No. 24-6146 resulted in a response being requested.

In any event, when a justice requests a response after a waiver has been filed and the response hasn’t been filed before the petition goes to its scheduled conference, the petition survives that conference.

Last Friday’s SCOTUS conference resulted in 13 denials, 1 GVR, and two relists.

The petitions that were scheduled for today’s conference are:

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Federal Appeals Court Upholds Non-Violent Felon Gun Ban

The government can permanently disarm somebody convicted of non-violent felonies if their broader criminal history contains violent conduct, a federal appeals court has ruled.

On Monday, a three-judge panel for the Sixth Circuit Court of Appeals unanimously rejected a Kentucky defendant’s as-applied challenge to his recent conviction for possessing a firearm as a felon. The panel ruled that even if a person is convicted of non-violent felonies, the totality of their criminal record can indicate “dangerousness” that permits disarmament under the Second Amendment.

“Morton’s criminal record demonstrates dangerousness, specifically that he has committed ‘violent’ crimes ‘against the person,’” Judge Rachel Bloomekatz wrote in US v. Morton. “So, his conviction is consistent with the Second Amendment as interpreted in Williams. Accordingly, § 922(g)(1) is constitutional as applied to him.”

The ruling stands out as the first time the Sixth Circuit has applied its unique standard for adjudicating challenges to the federal felony gun ban—by far the most common Second Amendment claim arising in the courts since the Supreme Court’s landmark Bruen decision. Other circuits have either issued blanket rulings upholding the federal ban as constitutional or struck it down in narrow applications without setting a generalized standard for evaluating other cases. But the Sixth Circuit crafted a standard that only convicted felons who are shown to be “dangerous” can be disarmed in an August ruling upholding the ban.

Monday’s panel was tasked with applying that new “dangerousness” test to Jaylin Morton.

Morton was arrested in 2022 on several outstanding warrants and was found to be in possession of multiple handguns. At the time of his arrest, he already had “at least six prior felony convictions.” Those included multiple convictions for possessing a firearm as a felon, evading the police, one for burglary, and one for intimidating a participant in a legal process. He also had multiple non-felony assault convictions, including one for a domestic-violence incident in which he “punched his then-girlfriend in the head.”

He was subsequently indicted for possessing a firearm as a felon, which he moved to challenge on the grounds that the Second Amendment does not permit disarming him because his prior felony convictions were for non-violent crimes.

Drawing on the Sixth Circuit’s earlier ruling from August, US v. Williams, Judge Bloomekatz said that the court’s controlling precedent recognizes constitutional applications of the lifetime felony gun ban for offenses that “strongly suggest dangerousness,” particularly “crimes against the person,” like murder and assault. Bloomekatz said Morton’s criminal conduct “undoubtedly” demonstrates he is violent.

“Among other offenses, Morton was previously convicted for wanton endangerment and possessing a firearm as a felon after he shot at his ex-girlfriend and her family, and then showed up at her house a few weeks later and verbally harassed her with a gun on his person,” she wrote. “On another occasion, Morton was convicted of assault resulting from a domestic-violence incident after he punched his then-girlfriend in the head during an argument.”

And though the domestic violence incident was not a felony that currently underlies his lifetime firearms ban, she said the court “may look at Morton’s whole criminal history in assessing dangerousness.”

“Moreover, we are not confined to the fact of conviction alone, but may consider how an offense was committed,” she wrote. “Accordingly, Morton’s convictions demonstrate his dangerousness, making § 922(g)(1) constitutional as applied to him.”

The decision adds to the growing divergence in how lower courts are handling the federal lifetime gun ban for felons. Even courts that have reached similar conclusions to one another have done so under a variety of approaches, which has resulted in a variety of enforcement standards for the most commonly charged federal gun statute.

In June, Department of Justice expressed concern over the growing divide and asked the Supreme Court to resolve the matter.

“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” US Solicitor General Elizabeth Prelogar said at the time.

However, the Court opted to sidestep the matter. Instead, it remanded half a dozen requested cases back down to the appellate system to be reconsidered in light of its most recent case law.

Even as many of those cases have returned with unchanged outcomes, the Court has not yet taken up one that would resolve the question.

DOD ‘Intentionally Delayed’ National Guard Deployment To The Capitol On Jan. 6

Federal bureaucrats within the Department of Defense (DoD) delayed the deployment of the National Guard on Jan. 6, 2021 and covered it up, according to a House Republican investigation of government conduct related to the Capitol riot.

On Thursday, Rep. Barry Loudermilk, R-Ga., who is leading a review of the work completed by the partisan Jan. 6 probe run by then-Rep. Liz Cheney of Wyoming, sent a letter to the inspector general for the Department of Defense demanding a correction to an agency report published in November 2021.

“This report was the final product of the DoD IG’s review into the events of January 6, and reviewed how the DoD responded to requests for support as the events unfolded,” Loudermilk, the chairman of the Subcommittee on Oversight for the House Administration Committee, wrote. “Throughout the Subcommittee’s extensive investigation into the failures of January 6, 2021, we have discovered numerous flaws and inaccuracies in the report that your office has yet to appropriately address.”

Such flaws and inaccuracies, however, may have been part of a partisan cover-up after GOP lawmakers discovered the Pentagon was responsible for delays in guard deployment.

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Well, that didn’t take them long, did it?
And the Supreme Court again displays its cowardice concerning the Right to Keep and Bear Arms.

Second Circuit’s Second Opinion on NY Carry Laws Same As the First

The Second Circuit Court of Appeals has issued its second opinion in the multiple challenges to New York’s post-Bruen carry restrictions, but the court ended up making no changes to its initial ruling that was issued almost a year ago.

Instead of granting cert to Antonyuk v. James and hearing the appeal themselves, the justices on the Supreme Court granted cert but vacated the Second Circuit’s first ruling and remanded the case back to the appellate court after SCOTUS released its decision in Rahimi back in June. If the justices were hoping that Rahimi would guide the Second Circuit in a different direction they, like Second Amendment advocates, must be disappointed by today’s ruling.

Essentially, the only portions of New York’s post-Bruen laws the Second Circuit takes issue with are the requirement that concealed carry applicants disclose their social media accounts to licensing authorities and the state’s “vampire rule”, which prohibits concealed carry on all private property in the state unless signage specifically allowing concealed carry is conspicuously posted.

Virtually all of the other “sensitive places” defined by the deceptively named Concealed Carry Improvement Act were upheld by the Second Circuit on Thursday, including houses of worship, public parks and zoos, public transportation, establishments where alcohol is served, theaters, conferences, business centers, and “gatherings of individuals to collectively express their constitutional rights to protest or assemble.”

As Chuck Michel said, the entire decision is more than 200 pages long, so while you can read it in its entirety here, we’ll be focusing on just a couple of aspects of today’s decision in this post.

Just like the Second Circuit’s original ruling in Antonyuk, the panel makes a few staggering leaps of faith that aren’t supported by what the Supreme Court has said about the right to keep and bear arms. The Court has held, for instance, that modern gun control statutes must fit within the national tradition of gun ownership, and doubted “that just three colonial regulations could suffice” to prove a national tradition of restricting concealed carry to those that have demonstrated a justifiable need.

But the Second Circuit says that even if there are no “distinctly similar historical regulation[s]” to point to in defense of a current gun law, that may not matter.

Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular time or place is in the record, it must be because the legislators then or there deemed such a regulation inconsistent with the right to bear arms.

No, but it definitely proves that those legislators didn’t create certain laws restricting the rights of lawful gun owners in response to concerns about violent crime or public safety, and that is telling… or at least it should be. The Supreme Court’s “text, history, and tradition” test is relatively straightforward, but it’s been squarely rejected by the Second Circuit in favor of a more “nuanced” approach that, conveniently enough, allowed the panel to conclude that even where there are no historical analogues in place, modern restrictions on the right to carry are permissible.

The Second Circuit also continues to place a lot of reliance on gun laws that were in place around 1868, when the Fourteenth Amendment was adopted, not just 1791, when the Second Amendment was ratified. In theory, that makes some sense, given that the Fourteenth Amendment was meant in part to prevent states from intruding on those freedoms enshrined in the Bill of Rights. But in the aftermath of the Civil War, many states, particularly in the former Confederacy, instituted laws that were designed to stop freedmen from exercising their right to keep and bear arms. In some case those laws were facially about depriving former slaves and freedmen from possessing or carrying a gun, but others were couched in racially-neutral terms but were enforced primarily or solely against groups.

The Second Circuit’s decision upholding most of New York’s newest restrictions on the right to carry relies largely on rewriting the Bruen test and an over-dependence on a handful of mid-19th century statutes. Again, even the absence of any historical analogues is no barrier for the Second Circuit, which is utterly ridiculous.

Antonyuk and the other related cases have yet to go to trial on the merits. So far, all of the legal wrangling has been about preliminary injunctions issued by the district courts, and the Second Circuit has now remanded these cases back to the lowest level of the federal judiciary to start the process all over again. Given the hostility the Second Circuit has historically displayed towards the Second Amendment (it originally upheld New York’s “may issue” law, for instance), today’s decision isn’t exactly surprising. But that doesn’t make it any less frustrating for those New Yorkers who’ve seen their right to carry become even more limited in scope and practice in the two years since the Supreme Court declared that right is just as fundamentally important as the right to keep a gun in the home.

Supreme Court Orders Fresh Look at Young-Adult Gun Restrictions

The US Supreme Court sidestepped a brewing gun-safety issue for now, telling a federal appeals court to reconsider a ruling that 18-to-20-year-olds have a broad constitutional right to carry a firearm.
In a two-sentence order Tuesday, the justices opted not to take up an appeal by Pennsylvania officials, instead ordering a fresh look at the issue at the lower court level. The reconsideration order cited the high court’s ruling in June upholding a federal gun ban for people under domestic-violence orders.
Pennsylvania is one of 32 states, along with the federal government, that establish 21 as the minimum age for some gun rights. The case before the high court involved a Pennsylvania law that prohibits people age 18-to-20 from openly carrying firearms during a declared state of emergency.
The Philadelphia-based 3rd US Circuit Court of Appeals blocked the law, saying in a 2-1 decision the state hadn’t shown the type of historic pedigree required under an earlier Supreme Court ruling.
The law is being challenged by two gun-rights groups and three people who were under age 21 when the suit was filed in 2020. They urged the Supreme Court to reject Pennsylvania’s appeal without ordering reconsideration, saying lower courts are generally in agreement that states can’t put special restrictions on 18-to-20-year-olds.
Pennsylvania Attorney General Michelle Henry argued that the 3rd Circuit imposed a much stricter historical test for gun laws than the Supreme Court said in the domestic-violence case was required.
The Supreme Court has steered clear of new Second Amendment disputes since its June 21 ruling. Lower courts now are grappling with bans on so-called assault weapons and large-capacity magazines, laws prohibiting gun possession by convicted felons and restrictions on where firearms can be brought.
The Pennsylvania case is Paris v. Lara, 24-93.

Uvalde Police Timid, Bungling During School Shooting, New Records Reveal
If you want something done right, do it yourself. That includes protecting family, friends, and neighbors.

Perhaps the greatest rebuttal to calls for confidence in police is the conduct of law enforcement officers at Robb Elementary School shooting in Uvalde, Texas. There, on May 24, 2022, almost 400 cops not only stood around while a lunatic murdered children and teachers, but they prevented parents from stepping in to do what those in uniform wouldn’t. Now, new reporting gives greater insight into the depths of the officers’ inaction that day, and just how unwise it is to rely on them for protection.
Documented Police Failures

The failures of police officers in Uvalde aren’t open to dispute.

“At Robb Elementary, law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” concluded a report by the Texas House of Representatives Investigative Committee on the Robb Elementary Shooting.

A U.S. Justice Department review similarly found “failures in leadership, command, and coordination.”

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2024 Republican Platform Drops Gun-Rights Promises

In its first official platform since 2016, the Grand Old Party (GOP) slashed all mention of its gun policy positions.

The Republican National Committee (RNC) Platform Committee voted 84-to-18 on Monday to adopt the new 2024 platform language after skipping the process entirely in 2020. The finalized document leans into former President Donald Trump’s “America First” outlook and parrots many of his stances on issues ranging from immigration to trade. However, it also minimized the party’s emphasis on gun policy compared to its previous platform.

The entire platform discusses gun rights just once, in a preamble statement about the party’s dedication to defending “our fundamental freedoms, including freedom of speech, freedom of religion, and the right to keep and bear arms.” The final product omits any discussion of tangible gun policy ideas.

The Republican Party platform’s downplaying of Second Amendment issues comes as the gun-rights movement finds itself in a precarious position politically. As guns have become increasingly polarized along party lines, gun-rights supporters have found themselves reliant on Republicans for political support. President Joe Biden has made gun control a fixture of his tenure in office and is already campaigning on even more sweeping proposals, including a ban on sales of the popular AR-15, in a potential second term. At the same time, while the GOP’s current standard-bearer has continued to seek the support of the National Rifle Association and make promises in speeches to the group, he has been fickle on gun policy at times. His felony convictions also mean he can no longer legally own or possess firearms.

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Supreme Court Sidesteps Pending Gun Cases

The Supreme Court has decided against providing further guidance on the Second Amendment—at least for now.

The High Court released its final orders list for the term on Tuesday. It featured the Justices’ decision to grant, vacate, and remand (GVR) seven cases dealing with laws prohibiting specific people from having guns back to the lower courts for new decisions. They also vacated and remanded a case dealing with New York’s concealed carry restrictions and denied a request to review a collection of cases on Illinois’ ban on the sale of AR-15s and other popular firearms.

The orders list is the earliest indication of how active the Court plans to be on the Second Amendment moving forward. After a session that featured three gun-related cases—but just one Second Amendment case—the Court’s decision to kick the can on addressing a series of outstanding questions suggests a limited appetite among the Justices for further refinement of its Bruen test at this time.

The Court left little concrete evidence of its thinking in deciding against taking up the pending gun cases. Only the petition denial for the six separate lawsuits challenging the state and municipal “assault weapon” and magazine bans in Illinois featured comments. Justice Samuel Alito noted that he would have voted to review the cases immediately. Meanwhile, Justice Clarence Thomas issued a statement urging the Court to take up the issue once it receives a case that has advanced through the entire appellate process.

“This Court is rightly wary of taking cases in an interlocutory posture,” he wrote. “But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment. We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”

The decision to hold off on reviewing the constitutionality of Illinois’ hardware bans is likely to disappoint gun-rights advocates, who have long sought the High Court’s opinion on bans on popular firearms like the AR-15. However, the Court’s decision to sidestep the question of gun rights for felons and other prohibiting categories is also likely to frustrate the Biden administration.

The Department of Justice (DOJ) had previously asked the Court to address whether the federal gun bans for drug users and felons were constitutional after two separate federal appeals courts struck them down as applied to particular defendants. In United States v. Daniels, the Fifth Circuit held the federal drug user gun ban unconstitutional as applied to a specific non-violent marijuana user. In Garland v. Range, an en banc panel for the Third Circuit struck down the felon-in-possession ban as applied to a man with a 30-year-old conviction for lying to get food stamps.

After the Supreme Court upheld the federal gun ban for people subject to domestic violence restraining orders in last month’s U.S. v. Rahimi decision, the DOJ was unsatisfied with the guidance they offered. It again urged the Court to issue a decision on whether it can legally disarm felons under the Second Amendment.

“Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict,” Solicitor General Elizabeth Prelogar wrote.

“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” she added. “Under these circumstances, the better course would be to grant plenary review now.”

Instead, the Justices sent Range, Daniels, and five other related cases back down to their respective circuit courts “for further consideration in light of United States v. Rahimi.”

So 3, 4 or 5 years down the road, after the cases are appealed at the 7th circuit – again – SCOTUS might take an appeal. The ultimate purpose of the Supreme Court was to decide ‘cases and controversies’, and yet, they kick the can down the road, to what end, who knows.

U.S. Supreme Court Declines to Hear Challenges to Illinois Assault Weapons Ban

The U.S. Supreme Court has declined to hear a series of challenges to Illinois’ ban on assault weapons, leaving the controversial law in place for now but indicating potential future involvement, WTTW and The Center Square are reporting. The decision comes after the Seventh Circuit Court of Appeals upheld the ban last November, stating that “even the most important personal freedoms have their limits.”

In a Tuesday order, the high court denied petitions for writs of certiorari in six cases challenging the ban. Justices Samuel Alito and Clarence Thomas dissented, expressing a willingness to take up the issue once the cases reach final judgment. Justice Thomas wrote, “if the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can — and should — review that decision once the cases reach a final judgment.”

The Illinois ban, part of the Protect Illinois Communities Act, was enacted in response to the tragic mass shooting at a Highland Park July 4 parade in 2022, where a gunman using an AR-15-style rifle killed seven people. The law prohibits the purchase and sale of firearms and accessories classified as assault weapons and imposes limits on magazine capacities for both handguns and long guns. Existing owners of these firearms were required to register them with the Illinois State Police by the end of 2023.

Justice Thomas criticized the Seventh Circuit’s decision, calling it “nonsensical” and arguing that common semiautomatic firearms like the AR-15 are protected under the Second Amendment. He cited his dissent in a similar 2015 case, Friedman v. City of Highland Park, to support his position.

The Supreme Court’s refusal to hear these cases leaves unresolved a significant legal question about the extent of Second Amendment protections. The Seventh Circuit’s ruling found that the guns and high-capacity magazines regulated under the Protecting Illinois Communities Act “lie on the military side of that line and thus are not within the class of Arms protected by the Second Amendment.”

Justice Thomas responded, “In my view, Illinois’ ban is ‘highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes,’” adding that it is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not “Arms” protected by the Second Amendment.

While this decision denies immediate relief to the challengers, it sets the stage for a potential future Supreme Court review. The focus now shifts to the Southern District of Illinois federal court, where four consolidated gun ban challenges are expected to move forward with a bench trial scheduled for September 16 in East St. Louis.

Supreme Court Silent on Illinois Gun Ban Lawsuits

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

Well, you know what they say about assuming things.

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

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

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

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