If so, we can only hope the Court takes these cases and crams their rulings in Heller, Caetano, McDonald and Bruen down the lower court’s and state’s throats

Groundswell of Second Amendment Cases Seems Destined for the Supreme Court
Federal courts in blue states seem to be upholding the majority of gun control laws, even after landmark Supreme Court decisions upholding the fundamental right to keep and bear arms

We recently posted about the New York Second Amendment case challenging New York’s concealed carry permit law that requires that a permit applicant prove to a local official that he or she is of “good moral character.” Not only is this an absurd requirement (how exactly are you supposed to prove that you have “good moral character”), but even after doing so, said local official then has complete discretion on whether to approve the applicant’s permit request . . . or not. The challengers in the case just asked the U.S. Supreme Court to review the case after the Second Circuit approved the “good moral character” requirement:

From our report: Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS:

The key part of the Petition [asking the U.S. Supreme Court to review the case] is its discussion of the New York law’s requirement that New Yorkers prove that they have “good moral character” before obtaining a concealed carry permit:

[T]his case would allow this Court the opportunity to clarify that government may not selectively disarm law-abiding members of “the people” whenever licensing officials feel they are of poor character, potentially dangerous, or otherwise unworthy of enjoying the natural right to self-defense with which they were endowed by their Creator….

In Bruen, this Court rejected New York’s requirement that, to be authorized to bear arms in public, citizens first must demonstrate “proper cause” — defined as “a special need for self-protection.” Here, the panel sanctioned New York’s stand-in requirement that citizens convince licensing officials of their “good moral character” prior to licensure. As the district court explained, New York simply “replaced” proper cause with good moral character, “while retaining (and even expanding) the open-ended discretion afforded to its licensing officers….”

New York’s “good moral character” standard is…a prohibited “suitability” determination and, as the district court noted, is merely a surrogate for the “proper cause” standard that was struck down in Bruen…Indeed, under the CCIA, New York officials decide whether a person “ha[s] the essential character, temperament and judgement necessary to be entrusted with a weapon….”

It is quite difficult to understand Bruen’s criticism of “suitability” not to include “good moral character.” And it is even more difficult to believe that this Court would approve the discretionary power to deny carry licenses to “all Americans” unless they first “convince a ‘licensing officer’” of their general morality.

In doing some research to see if other cases exist that are working their way through the courts, I was surprised to find out that there are — a lot of them.

Rhode Island Magazine Limit Law

For example, as reported in the Second Amendment advocacy website The Reload, a Federal Appeals Court recently upheld a Rhode Island ammo magazine ban:

Rhode Island’s ban on possessing ammunition magazines capable of holding more than ten rounds doesn’t violate the Second Amendment, a federal appeals court ruled on Friday [March 8, 2024].

A three-judge panel for the First Circuit Court of Appeals [which covers Massachusetts, Maine, New Hampshire, and Rhode Island] unanimously upheld a lower court’s denial of a motion for preliminary injunction against Rhode Island’s magazine ban. The panel did so after ruling that “large capacity magazines” (LCMs) are rarely used in self-defense, and the state’s ban imposes “no meaningful burden” on Rhode Islanders’ ability to defend themselves. It also held the magazine ban was relevantly similar to historical gun restrictions, as required by the Supreme Court’s test in New York State Rifle and Pistol Association v. Bruen….

The ruling deals a blow to the state’s owners of the affected magazines, which come standard with most modern firearms. Because Rhode Island’s ban includes possession as well as future sales, those who do not surrender or permanently modify their magazines risk facing up to five years in prison or a $5,000 fine.

“Deals a blow” to firearms owners? I’ll say. Think about a home invasion scenario, more and more a possibility these days with illegal aliens overrunning the entire country, and you’ll understand that one handgun with only a ten-round magazine will do little to stop said invasion.

Anyway, the Plaintiff/Appellants in the case are undoubtedly going to ask the Supreme Court to review their case as well, just like the New York Plaintiffs did. We will update you when they do.

Illinois “Assault Weapon” Ban and Magazine Limit Law

There is also a case challenging an Illinois law banning certain “assault rifles” and also imposing a magazine limit: Seventh Circuit Upholds Illinois ‘Assault Weapon,’ Magazine Bans:

Illinois and several of its localities can continue to enforce their bans on AR-15s and other semi-automatic weapons, a federal appeals court ruled Friday [November 3, 2023].

A three-judge panel for the Seventh Circuit Court of Appeals vacated a lower court decision blocking the gun bans after finding that the state and local governments “have a strong likelihood of success” in defending the law on constitutional grounds. In a 2-1 decision, the judges said that semi-automatic AR-15s and the magazines that come standard with them are not “arms” protected by the Second Amendment because they are “indistinguishable” from fully-automatic machineguns like the M16….

The ruling deals a sweeping blow to gun-rights advocates in six separate lawsuits fighting gun bans in Illinois. The order—which covers bans of the state, the cities of Chicago and Naperville, and Cook County—functionally ends any hope gun-rights supporters may have had that the bans would be blocked before a decision is reached on the merits in any of the cases….

Judge Michael B. Brennan, a Donald Trump appointee, dissented from his colleagues and argued that the Illinois bans at issue were far too broad to pass constitutional muster.

“The Second Amendment ‘right of the people to keep and bear Arms’ is not a second-class right,’” he wrote. “Yet the State of Illinois and several Illinois municipalities have categorically banned law-abiding citizens from keeping and bearing a sweeping range of firearms and magazines.”

He took particular aim at the majority’s classification of civilian semi-automatic weapons as being similar to bannable machineguns.

“In a remarkable conclusion, the majority opinion decides that these firearms are not ‘Arms’ under the Second Amendment,” Brennan wrote. “The banned arms are ‘in common use.’ They are commonly possessed by law-abiding citizens for lawful purposes, including self-defense. They may be ‘dangerous’—as are all firearms—but they are not ‘unusual,’ and thus would not be within the history and tradition recognized in Heller of prohibiting ‘dangerous and unusual’ weapons.”

In this case, three separate petitions have been filed asking the Supreme Court to review the case.

The first petition, in a case entitled Harrel v. Raoul, Kwame Raoul being the Attorney General of Illinois, states the questions presented to the Supreme Court as follows:

(1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes.

(2) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes.

(3) Whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.

Kwame and the State of Illinois have until April 15, 2024 to respond to Harrell’s request that the Supreme Court take the case. They will undoubtedly respond that the Seventh Circuit got it exactly right, and the AR-15 ban (of which there are 24.4 million in circulation nationwide) and magazine bans are good law and fully constitutional.

The second petition, in a case entitled National Association for Gun Rights, Robert C. Bevis, and Law Weapons, Inc. [doing business as] Law Weapons & Supply, An Illinois Corporation v. the City of Naperville, Illinois, Jason Arres, and the State of Illinois, Jason Arres being the Naperville Chief of Police, states the questions presented to the Supreme Court as follows:

1. Is the State of Illinois’ ban of certain handguns constitutional in light of the holding in D.C. v. Heller, 554 U.S. 570 (2008), that handgun bans are categorially unconstitutional?

2. Is the “in common use” test announced in D.C. v. Heller, 554 U.S. 570 (2008), hopelessly circular and therefore unworkable?

3. Can the government ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding era regulation?

The City of Naperville, IL and the other Supreme Court “Respondents” also have until April 15, 2024 to respond to the Petitioners’ request that the Supreme Court take the case. They will also undoubtedly respond that the Seventh Circuit got the case exactly right and the Supreme Court should not review the case.

The third petition, in a case called Langley v. Kelly, Brendan F. Kelly being the Director of the Illinois State Police, states the questions presented to the Supreme Court as follows:

1. Is the State of Illinois’ absolute ban of certain commonly owned semi-automatic handguns constitutional in light of the holding in D.C. v. Heller, 554 U.S. 570 (2008), that handgun bans are categorially unconstitutional?

2. Is the State of Illinois’ absolute ban of all commonly owned semi-automatic handgun magazines over 15 rounds constitutional in light of the holding in D.C. v. Heller, 554 U.S. 570 (2008), that handgun bans are categorially unconstitutional?

3. Can the government ban the sale, purchase, possession and carriage of certain commonly owned semi-automatic rifles, pistols, shotguns and standard capacity firearm magazines tens of millions of which are possessed by law-abiding Americans for lawful purposes when there is no analogous historical ban as required by D.C. v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Kelly also has until April 15, 2024 to respond to the Petitioners’ request that the Supreme Court take the case. He too will also undoubtedly respond that the Seventh Circuit got the case exactly right and the Supreme Court should not review the case.

Lots for the Supreme Court to chew on as they decide whether to take these cases.

One interesting twist is that in the Harrel v. Raoul case, the National Association of Police has filed an amicus curiae, or “friend of the court,” brief supporting the Harrel Petitioners. This brief, available for review here, argues that the “Seventh Circuit’s legal standard eviscerates the Second Amendment, that the Illinois law’s “restrictions [approved by the Seventh Circuit] threaten to leave American citizens without effective means to utilize the sort of weapons employed by criminals throughout the country—and employed by nearly all police departments to fight them.”

And in a key paragraph:

In the world far removed from courtrooms, judge’s chambers and lawyers’ offices, Americans are using guns to defend themselves and others at extremely high rates—up to 2.8 million times a year. More than half of the incidents of self-defense involve more than one assailant, in which the ability to fire more defensive rounds obviously assumes more importance. Indeed, 3.2% of incidents involve five or more attackers, where the ability to shoot more than ten rounds is obviously critical. There are, of course, numerous reported incidents of citizens defending themselves who have been required to use more than ten shots to do so—or failing to defend themselves when only ten rounds were available.

Take that, gun controllers — hopefully it will pique some interest among the Court.

Delaware “Assault Weapon” Ban and Magazine Limit Law

Three cases winding their way through the Delaware federal court were just argued at the Third Circuit U.S. Court of Appeals (which covers New Jersey, Pennsylvania, and Delaware).

On Monday, March 11, 2024, the Third Circuit heard oral argument in Delaware State Sportsmens Association Inc, et al v. Delaware Department of Safety and Homeland Security (Nos. 23-1633, 23-1634, and 23-1641), where the Plaintiff/Appellants argued, in a key paragraph:

As a matter of plain text, the Second Amendment extends to “all instruments that constitute bearable arms,” Bruen, 142 S. Ct. at 2132; i.e., “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” Heller, 554 U.S. at 581. As a matter of history, Heller and Bruen establish that the only exception to this broadly protective amendment, is that arms that are “dangerous and unusual” are not protected. However, if an arm is “in common use” then it is, by definition, not dangerous and unusual. In this case, that is dispositive and the State and the district court’s arguments to the contrary, including the argument that these arms, which are chosen by millions of Americans for the purpose of self-defense, are by their nature ill-suited to that purpose, are irrelevant and should be disregarded.

It will take several months, most likely, for the Third Circuit to render a decision in this case. We will let you know when they do, and either way there will likely be yet another Petition to the Supreme Court asking the Justices to review the case.

Connecticut “Assault Weapon” Ban and Magazine Limit Law

In August of last year a federal judge in Connecticut, Senior District Court Judge Janet Bond Arterton, upheld Connecticut’s restrictive “assault weapons” ban and magazine limits: Federal Judge Upholds Connecticut ‘Assault Weapon,’ Magazine Bans:

The Second Amendment does not protect AR-15s and ammunition magazines capable of holding more than ten rounds, a federal judge ruled on Thursday.

U.S. District Judge Janet Bond Arterton, a Bill Clinton appointee, denied a motion for a preliminary injunction against the state of Connecticut’s ban on the possession and sale of so-called assault weapons and large-capacity magazines (LCMs). She did so after determining that AR-15s and similar rifles, as well as LCMs, are not protected by the Constitution.

“Plaintiffs’ proposed ownership of assault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs in the Challenged Statutes are commonly sought out, purchased, and used for self-defense,” Arterton wrote in Flanigan v. Lamont. “In the absence of persuasive evidence that the assault weapons or LCMs listed in the statutes are commonly used or are particularly suitable for self-defense, Plaintiffs have failed to carry their burden.”

The ruling deals a blow to gun-rights advocates looking to challenge hardware bans in the wake of the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v. Bruen.

This case has been appealed to the Second Circuit, now titled National Association for Gun Rights v. Lamont, and written briefs have been submitted. Oral argument should be scheduled fairly soon, with an opinion out several months after that.

Washington State “Assault Weapon” Ban and Magazine Limit Law

In June and September of last year, a federal judge in Washington, as in Connecticut, upheld laws similar to Connecticut’s banning certain so-called “assault weapons” and placing limits on ammo rounds carried in handgun magazines: Federal Judge Upholds Washington Ammo Magazine Ban:

Washington state can continue to enforce its ban on the sale of commonly owned ammunition magazines, a federal judge ruled Monday.

U.S. District Judge Mary Dimke, a Joe Biden appointee, denied a motion for preliminary injunction filed by gun-rights advocates against the state’s magazine ban. She ruled that the plaintiffs failed to make a persuasive case that “large capacity” magazines are “arms.”

“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right,” Judge Dimke wrote in Brumback v. Ferguson.

The ruling deals another blow to gun owners in the Evergreen State, who have faced a string of losses in legal challenges to the state’s gun laws in recent months even as similar laws have been struck down by courts elsewhere. A separate challenge against the state’s ban on certain semi-automatic weapons was similarly rejected in June.

Brumback v. Ferguson is now stayed pending the outcome of the Ninth Circuit case, Duncan v. Bonta. En banc, meaning entire court, oral argument in that case is scheduled for Tuesday, March 19, 2024, and concerns a California law limiting magazine capacity, which was ruled unconstitutional by a California federal judge.

Oregon Magazine Limit and Carry Permitting Law

From The Reload: Federal Judge Rules Oregon Magazine Ban, Gun-Purchase Permitting Constitutional:

A federal judge has ruled Oregon’s controversially strict gun-control law constitutional.

On Friday [July 14, 2023], District Judge Karin Immergut ruled that Measure 114’s ban on large-capacity magazines and permit requirement to purchase a firearm does not violate the Second Amendment.

“As explained below, Plaintiffs have not shown that the Second Amendment protects large-capacity magazines, defined as magazines capable of firing eleven or more rounds without reloading,” Judge Immergut wrote in Oregon Firearms Federation v. Kotek. “And even if the Second Amendment were to protect large-capacity magazines, this Court finds that Defendants and Intervenor-Defendant have established that Oregon’s restrictions on the use and possession of large-capacity magazines are consistent with the Nation’s history and tradition of firearm regulation.”

This case was appealed to the U.S. Court of Appeals for the Ninth Circuit, but the appeal is stayed pending Duncan v. Bonta, which was ruled unconstitutional by a California federal judge.

Summary

As you can see, numerous cases are either at the U.S. Supreme Court requesting review, or are likely to end up there.

Whether the Court grants review in any of these cases might individually be a longshot, but sooner or later the Court will have to take notice of the sheer volume of these cases and provide further guidance.

We will keep you updated.