Category: Courts

The court ruled that since the law hadn’t actually been enforced yet, the plaintiffs didn’t have ‘standing’, as they weren’t yet subject to harm.

New Jersey Can Sue Gun Companies As A ‘Public Nuisance,’ Appeals Court Rules

The state of New Jersey can sue firearms manufacturers under a new state public nuisance law designed to target the industry, a federal appellate court ruled on Thursday.

New Jersey, in July of 2022, enacted new statutory law that allows the attorney general to sue gun manufacturers for being a “public nuisance” if they have “endangered the safety and health of New Jersey residents through the sale, manufacture, distribution, and marketing of lethal, but nonetheless legal, gun-related products,” according to the law. The state was then sued by the National Shooting Sports Foundation (NSSF) in November of 2022 in a “pre-enforcement action,” to stop them from bringing a suit under the law, which was on Thursday dismissed for a lack of ripeness — meaning that it hasn’t matured to the point where a genuine dispute exists — according to the court’s ruling dismissing the suit.

“Pre-enforcement challenges are unusual. To bring one, the plaintiff must show that the stakes are high and close at hand … Yet this suit falls far short of even the ‘normal’ pre-enforcement challenge. A brand-new civil tort statute, without more, does not justify a federal court’s intervention,” wrote U.S. Circuit Judge Stephanos Bibas, a Trump appointee to the U.S. Court of Appeals for the Third Circuit, for a unanimous three-judge bench. “[W]e see little evidence that enforcement is looming … the Foundation has jumped the gun,” Bibas noted.

New Jersey’s law was passed in response to the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, where the court in a 6-3 ruling struck down a New York law that required pistol permit applicants to prove that a “proper cause exists” for having such a permit. The Supreme Court ruled that the law violated the Second Amendment.

“The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different,” wrote Justice Clarence Thomas for the majority in the case. The ruling was widely criticized by Democrats and left-wing groups, who argued that it would increase gun violence and prompted the passage of laws by Democratic-led states to curtail firearm access.

“A gun industry member shall not, by conduct either unlawful in itself or unreasonable under all the circumstances, knowingly or recklessly create, maintain, or contribute to a public nuisance in this State through the sale, manufacturing, distribution, importing, or marketing of a gun-related product,” reads the New Jersey statute, which was challenged by the NSSF. The law also specifies that “[t]he Attorney General shall not be required to demonstrate any special injury” to prevail in a legal challenge on these grounds.

The law had previously been blocked by U.S. District Judge Zahid Quraishi of New Jersey for purportedly violating federal law, which currently immunizes gun manufacturers from lawsuits when their guns are used to commit crimes.

The law adapts a model — creating a civil cause of action for private citizens to sue — that had been adopted by some conservative states, notably Texas, to enforce abortion restrictions prior to the Supreme Court’s overturning of Roe v. Wade. Democratic-led states, such as California, then vowed to use the same model to target gun manufacturers.

“During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement,” said Lawrence Keane, the NSSF’s senior vice president and general counsel. “Should New Jersey’s attorney general attempt to enforce the law, we will immediately refile our complaint.”

“I am thrilled,” said Democratic Gov. Phil Murphy of New Jersey.

Biden’s DOJ Asks SCOTUS to Gut the 2nd Amendment in 67-Page Brief

In a notable development, the United States Department of Justice (DOJ) has submitted a significant brief (67+ pages, embedded below) to the United States Supreme Court in the case of United States of America vs. Zaki Rahimi. The focus of this case is the constitutionality of 18 USC 922 G8, which pertains to domestic violence restraining orders and their alignment with the Second Amendment.

Mark Smith, a constitutional attorney, suggests that the DOJ, representing the Biden Administration, is arguing for extensive interpretation measures. The contention seems to be that the Second Amendment allows Congress and other legislative bodies the power to disarm individuals [aka “infringe”] deemed not “Law Abiding” or “responsible.” The criteria for such judgments, as outlined in the brief, could range from minor infractions like jaywalking to more serious criminal activities.

The broad implications of such an interpretation might leave a vast number of citizens without the right to keep and bear arms.

Central to the case is Zaki Rahimi’s incident from December 2019, where he allegedly assaulted his girlfriend and threatened a witness with a firearm. The event resulted in a restraining order against Rahimi in February 2020 after he ostensibly admitted to the accusations.

The Fifth Circuit Court of Appeals previously held that the federal law in question in Zaki Rahimi’s case was in violation of the Second Amendment. Still, the DOJ’s arguments seem to lean heavily on connecting firearms with domestic violence, potentially setting a precedent for justifying ‘red flag’ laws. Their position leans on the Heller case from 2008, which identified the rights of “law-abiding and responsible” individuals to bear arms.

The DOJ attempts to spin its argument based on three main talking points, all taken out of legal and historical context:

  1. Previous court precedents distinguished between law-abiding citizens and those deemed otherwise.
  2. Historical precedents allowed for disarmament during the founding era, citing laws that existed during the period.
  3. Arguing that the majority of American states having similar domestic restraining orders suggests a national consensus.

Critics rightfully argue that simply because many states have implemented certain rules doesn’t automatically affirm their constitutionality.

This shocking 67-page brief from the DOJ would be a significant shift in interpreting the Second Amendment. Whether this unconstitutional human rights grab prevails will be determined by the Supreme Court in its upcoming deliberations.

Biden DOJ Legal Brief to SCOTUS in U.S. v. Rahimi

Conservation Orgs File Intent to Sue Education Dept. Over Archery & Hunter Education Policies

On Friday, August 11, 2023, Safari Club International, along with the Sportsmen’s Alliance Foundation, sent a notice of intent to sue the Department of Education over the Department’s misinterpretation of the Bipartisan Safer Communities Act (BSCA), which would prohibit the use of federal funds for shooting sports, hunter education, and outdoor education programs in schools.

Co-sponsors and authors of the BSCA have repeatedly confirmed that it was not intended to restrict funding for these programs. Rather, these programs are vital to helping students find safe and healthy outlets—and to develop a love of the outdoors.

SCI and SAF’s notice of intent to sue warns the Department that its interpretation of the BSCA is arbitrary and capricious, in violation of federal law. It requests a response within ten days, or the organizations will have no choice but to file suit. These shooting sports and hunter education programs are far too important to allow this funding uncertainty to continue.

“SCI is disheartened by the Administration’s lack of urgency in correcting their misinterpretation of the BSCA,” said Ben Cassidy, SCI EVP of International Government and Public Affairs. “Congress has repeatedly confirmed that this was not the BSCA’s intent. The Department mustunderstand there are consequences for ignoring the crucial role these programs play in helping kids learn new skills, enjoy the outdoors, and understand the importance of conservation.”

“SCI Foundation has been dedicated to providing shooting sports and outdoor education programs since 1976,” said SCI and SCI Foundation CEO W. Laird Hamberlin. “Nearly 7,000 educators have been trained in conservation/outdoor education and shooting sports, reaching over 1 million children nationwide. In addition, the Foundation, as well as SCI chapters, have invested millions of dollars in funding archery, hunter education, and outdoor education in schools. The Department’s incorrect interpretation of this the BSCA has put all those programs in jeopardy.”

In addition to a suit, SCI is working with members of Congress to amend the law, to ensure misinterpretations like this cannot happen again. SCI’s Hunter Advocacy Action Center alert provides a direct link to contact Members of Congress, to demand urgent change.

More Background:

Illinois’ latest gun law is an affront to more than just the Second Amendment

Illinois’ new “Firearms Industry Responsibility Act” isn’t just an attack on our right to keep and bear arms. It’s an assault on our freedom of speech as well. On today’s Bearing Arms’ Cam & Co Mark Oliva of the National Shooting Sports Foundation sits down with me to discuss the group’s newly-filed lawsuit challenging HB 218, as well as the impending ATF rule on private sales and transfers of firearms.

The NSSF’s lawsuit, filed in the U.S. District Court for Southern Illinois, challenges the validity of Illinois’ new gun control law on multiple counts, starting with the argument that HB 218 is preempted by the Protection of Lawful Commerce Act. But the NSSF is also raising a First Amendment challenge, asserting that the law discriminates against speech based on its content or viewpoint and arguing that such discrimination should be subject to strict scrutiny by the courts.

The topics and views that Illinois has singled out in HB 218 do not fall into any “well-defined and narrowly limited classes of speech” unprotected by the First Amendment. To be sure, the First Amendment does not preclude imposing liability for false, deceptive, or otherwise “misleading” commercial speech.

But HB 218 does not even purport to target only speech that is false or misleading. It authorizes the imposition of liability for speech about a product—a product expressly protected by the Constitution, no less— even when that speech is truthful and not misleading. Indeed, the words “false,” “misleading,” and “deceptive” appear nowhere in the relevant provisions.

A manufacturer that places online advertisements containing entirely accurate specifications of its products and subsequently sells that product to a distributor, could be liable under HB 218, even if that product is fully lawful in every state in which it is sold, if a Illinois court later deems the product to have been marketed (1) in a way that “contribute[d] to a condition in Illinois that endangers the safety or health of the public,” or (2) encouraged non-servicemembers to use it for “a military-related purpose”.

“They’re trying to squelch the First Amendment rights of firearm manufacturers and retailers,” Oliva explained to me. “If they can eliminate the discussion of safe and responsible firearm ownership to the next generation, they can diminish the desire for ownership and people exercising their Second Amendment rights. So they’re trying to play the long game of eliminating the Second Amendment by eliminating and curtailing the First Amendment. And it’s important to remember that commercial speech is protected by the First Amendment. It is a right for these companies to be able to advertise a constitutionally-protected product.”

In its suit, the NSSF says that the speech code established by HB 218 is so vague that it’s “virtually impossible for regulated parties to tell what speech is and is not permitted, leaving them with no realistic choice but to err on the side of refraining from exercising their First Amendment rights.”

By its terms, HB 218 renders unlawful any marketing of a firearm-related product that “create[s], maintain[s], or contribute[s] to a condition in Illinois that endangers the safety or health of the public” if it is deemed “unreasonable under all circumstances.” This restriction “will provoke uncertainty among speakers,” as such indeterminable and subjective abstractions do not articulate at all—let alone articulate with “narrow specificity”—what kind(s) of speech may later be deemed to have unreasonably contributed to a “condition … that endangers the safety or health of the public.”

Those restrictions are problematic enough, but HB 218 further prohibits marketing “in a manner that reasonably appears to support, recommend, or encourage individuals” who are not in the military “to use a firearm-related product for a military-related purpose.” The problem with this broad prohibition is that Illinois provides no guidance on what qualifies as a “military-related” purpose, leaving industry members to guess whether their marketing materials will later be deemed unlawful.

HB 218 goes on, moreover, to prohibit an industry member from “advertis[ing], market[ing], promot[ing], design[ing], or sell[ing] any firearm related product in a manner that reasonably appears to support, recommend, or encourage persons under 18 years of age to unlawfully purchase or possess or use a firearm-related product.”

A state of course may prohibit speech directly concerning unlawful conduct. But, unless this provision covers nothing more than advertisements that tell minors to buy guns (despite being minors), it is not at all clear what it means. Does any advertisement that shows minors lawfully using firearms (e.g., with a parent while hunting, or at a Boy Scouts shooting event) fall on the wrong side of the line?

What about marketing in a way targeted toward young men, who share many characteristics with those just a few years younger—but are lawfully able to purchase firearms (and serve in the armed forces)? The questions vastly outnumber the answers. And while no statute must preempt all potential complications, when it comes to a prohibition on speech, the lack of clarity is destined to create a massive chilling problem.

If HB 218 is so narrow that it only prohibits advertisements that entice juveniles into breaking the law, then this particular provision is never going to come into play in practice. If, on the other hand, the bill is written broadly enough to target manufacturers like Wee1 Tactical and its JR-15 rimfire rifle, then it’s going to make it virtually impossible to not only market but produce firearms designed for youth shooting. As Oliva says, that’s nothing more than abridging the First Amendment rights of gun makers to curb the Second Amendment rights of gun owners, and a sign of the contempt that Illinois lawmakers have for all of our individual rights.

Check out the entire conversation with Mark Oliva in the video window below, including his initial thoughts on the yet-to-be-introduced ATF rule that seeks to impose a near-universal background check system on gun sales and the dangers it poses to lawful gun owners across the country. Be sure to tune in tomorrow as well, when we’ll be talking with Jim Wallace of the Gun Owners Action League about how gun owners are pushing back on the “Lawful Citizens Imprisonment Act” and what’s happening behind the scenes at the statehouse in Boston.

ILLINOIS 5TH CIRCUIT COURT REVERSES, REMANDS FOID CARD CHALLENGE CASE

BELLEVUE, WA – The Illinois 5th Circuit Court of Appeals has finally reversed and remanded a lower court ruling in a case which could determine whether the Firearm Owner’s Identification (FOID) card requirement is constitutional.

The Second Amendment Foundation notes this will be the third go-round for the case in White County Circuit Court, but it could ultimately end up before the Illinois State Supreme Court, noted SAF founder and Executive Vice President Alan M. Gottlieb. The case was brought and funded by SAF and the Illinois State Rifle Association.

The five-page order was unanimous, with Justices John B. Barberis and Barry L. Vaughan concurring with Justice Thomas M. Welch, who delivered the opinion.

Noting that, “The State has filed a motion for summary relief arguing that the basis of the court’s dismissal—that it was impossible for Brown to comply with the statute—is not one of the bases upon which a charge may be dismissed before trial,” Justice Welch confirmed the defendant, Vivian Claudine Brown “agrees that the cause should be remanded.”

“We’re delighted the courts will finally have an opportunity to hear arguments in the actual case which challenge the constitutionality of the FOID card,” Gottlieb said. “Hopefully, this time around, we won’t see the case bogged down by more procedural issues which have allowed the court to avoid addressing the main issue at hand, which is whether the FOID card requirement actually passes constitutional muster.”

The case dates back to when Brown was originally charged with unlawful possession of a firearm without also possessing a FOID card, in May 2017.

“This case has been bouncing around for six years,” Gottlieb noted, “and it is high time to move forward.”

Federal District Court issues Temporary Restraining Order on Hawaii’s ‘new’ Concealed Carry law.

https://storage.courtlistener.com/recap/gov.uscourts.hid.165717/gov.uscourts.hid.165717.66.0.pdf

The TRO Motion is GRANTED to the extent that the following
provisions are enjoined:
-the portions of § 134-A(a)(1) that prohibit carrying firearms
in parking areas owned, leased, or used by the State or a
county which share the parking area with non-governmental
entities, are not reserved for State or county employees,
or do not exclusively serve the State or county building;
-the entirety of §§ 134-A(a)(4) and (a)(12);
-the portions of § 134-A(a)(9) prohibiting the carrying of
firearms in beaches, parks, and their adjacent parking
areas; and
-the portion of § 134-E that prohibits carrying firearms on
private properties held open to the public.

 

FPC Files For Injunction Against Washington “Large Capacity” Magazine Ban

Firearms Policy Coalition (FPC) announced that it has filed a motion for summary judgment in its Sullivan v. Ferguson lawsuit, which challenges Washington’s unconstitutional ban on common firearm magazines. The motion can be viewed at FPCLegal.org.

“There can be no serious dispute that the magazines Washington bans are ‘in common use’—there are hundreds of millions of them [] owned by tens of millions of Americans as private surveys and industry and government data all corroborate,” argues the motion. “Indeed, courts across the country have repeatedly found that these magazines are commonly owned and widely chosen by Americans for self-defense and other lawful purposes. That fact decides this case, and Plaintiffs are entitled to judgment in their favor.”

“There are few things more offensive than politicians arbitrarily preventing people from possessing the tools they deem necessary to protect their lives, loved ones, and communities,” said Cody J. Wisniewski, FPCAF’s General Counsel and Vice President of Legal, and FPC’s counsel in this case. “The magazines that Washington bans are constitutionally protected and it does not have the power to infringe on the rights of Washingtonians by banning them. We’re hopeful that the Court will see the error of Washington’s ways.”

FPC is joined in this lawsuit by the Second Amendment Foundation.

The squish Roberts does it again

Supreme Court allows continued regulation of so-called ‘ghost guns’
The Biden administration may temporarily continue its crackdown on ‘ghost guns’

The U.S. Supreme Court has sided with the Biden administration, temporarily allowing enforcement of regulations over so-called “ghost guns” that can be made from kits at home.

The administration appealed a federal judge’s earlier ruling tossing out the regulations. In a 5-4 vote, the high court put that ruling from Texas on hold while the case is appealed further on the merits. The regulation will be enforced while the case is appealed to the 5th U.S. Circuit Court of Appeals in New Orleans and possibly further to the Supreme Court.

Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed the lower court ruling to go into effect.

The federal regulation was put into place a year ago, and would put ghost guns under the same control as other fully assembled firearms, making it easier to trace serial numbers, background checks, and sales. The rule requires unfinished parts of a firearm like the frame of a handgun or the receiver of a long gun to be treated like a completed firearm. These parts need to be licensed and must have serial numbers.

The rule also requires manufacturers to run background checks before selling these parts, as they are required to do for whole commercial firearms.

The Biden administration argued the rule is necessary to respond to rising numbers of untraceable guns.

The Justice Department had told the court that local law enforcement agencies seized more than 19,000 ghost guns at crime scenes in 2021, a more than tenfold increase in just five years.

“The public-safety interests in reversing the flow of ghost guns to dangerous and otherwise prohibited persons easily outweighs the minor costs that respondents will incur,” Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, wrote in a court filing.

Gun rights groups and a firearms parts manufacturer challenging the regulation argue the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacks the authority to change the definition of a firearm in federal law without an act of Congress. U.S. District Judge Reed O’Connor, in Fort Worth, Texas, sided with plaintiffs challenging the rule last June, finding that the definition of a firearm in federal law does not cover the individual parts of a gun.

Lawyers for the Firearms Policy Coalition told the Supreme Court that O’Connor was right and that ATF had abandoned more than half a century of regulatory practice by expanding the definition of a firearm.

“We’re deeply disappointed that the Court pressed pause on our defeat of ATF’s rule effectively redefining ‘firearm’ and ‘frame or receiver’ under federal law,” said Cody J. Wisniewski, FPCAF’s General Counsel and Vice President of Legal, and FPC’s counsel in this case. “Regardless of today’s decision, we’re still confident that we will yet again defeat ATF and its unlawful rule at the Fifth Circuit when that Court has the opportunity to review the full merits of our case.”

Federal judge in Colorado blocks law raising age requirement for gun purchases

A federal judge in Colorado on Monday temporarily blocked a state law that raised the legal age requirement for purchasing a firearm to 21.

Chief U.S. District Judge Phillip A. Brimmer ruled in favor of the gun rights group, Rocky Mountain Gun Owners, who had filed a lawsuit against Gov. Jared Polis.

The state law, SB23-169, was one of several sweeping gun reform measures approved by the state legislature and signed by Gov. Polis in the spring. It sought to prohibit people under the age of 21 from purchasing a gun, with exceptions for active members of the U.S. armed forces, peace officers, and people certified by the Peace Officer Standards and Training board.

RMGO argued in their lawsuit that law was unconstitutional. The group said if people are allowed to vote when they turn 18, they should be allowed to purchase a gun.

“Since the day this legislation was introduced, we knew it was unconstitutional,” said RMGO executive director Taylor Rhodes in a written statement. “Under the Golden Dome, at the unveiling of this proposal, RMGO warned the bill sponsors this would quickly be struck down by a federal judge. Today, our crystal ball became a reality.”

 

How a “poison pill” in NYSRPA v. Bruen is being exploited by a lower court

The last year has seen some significant successes in the restoration of our Second Amendment rights. From coast to coast, unreasonable gun laws written for the express purpose of harassing law-abiding citizens and infringing on the rights of the body politic are being struck down. Before the Bruen text/history/tradition test, just about every infringement was rubber-stamped by biased anti-Rights judges who always put a thumb on the scale in favor of restrictions.

Unfortunately, there is a sort of “poison pill” in the Court’s Bruen decision that provides a small loophole that anti-Rights judges can drive a truck through. This is the “unprecedented Societal Concern or dramatic technological changes” caveat in the Supreme Court’s opinion:

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.

The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted).

Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U.S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”).

To be fair, the Court’s opinion talks about the importance of the right to keep and bear arms and how it has a fixed meaning and leaves it up to judges to apply those basic principles to circumstances beyond what the Founders specifically anticipated. The context, however, is not the infringement of rights but consistent support for rights over time. To drive home the point, the Court provides an example from United States v. Jones, and talks about how the installation of a GPS tracker was a physical intrusion that would have been considered a search. The Founders lived during an era when there was no electricity, but the Fourth Amendment is still applicable to small GPS devices that use signals from orbiting satellites to determine someone’s location.

But judges with inherent bias will take advantage of even the smallest opening, and we saw that yesterday at the United States District Court for the District of Connecticut in National Association for Gun Rights v. Lamont, which deals with Connecticut’s “assault weapons” ban. The plaintiffs in this case sought to get a preliminary injunction to stop the enforcement of Connecticut’s “assault weapons” ban. The Court denied the injunction, saying that the plaintiffs have failed to show their likelihood of success on the merits.

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Federal judge bizarrely contends that most firearms can be banned without violating the Second Amendment

Last month, U.S. District Judge Janet Bond Arterton tossed out a lawsuit challenging Connecticut’s ban on concealed carry in state parks, ruling that the plaintiff in the litigation didn’t have standing to sue because there was no credible threat of him being arrested or prosecuted for violating the ban. That was an exceedingly odd decision, but it kept the ban in place (at least for now), which counts as a win as far as anti-gunners are concerned.

Now Arterton has followed up with another legal doozy, rejecting a preliminary injunction against the state’s newly-expanded ban on so-called assault weapons and large capacity magazines by declaring that the Supreme Court’s Second Amendment jurisprudence allows for bans on commonly-owned weapons, and that “only a ban on firearms that are so pervasively used for self-defense that to ban them would ‘infringe,’ or destroy, the right to self-defense” would violate our right to keep and bear arms.

Under Arterton’s interpretation of Heller, McDonald, Caetano, and Bruen everything from bolt-action hunting rifles to single-barreled shotguns could be banned without calling into question the right to keep and bear arms; presumably leaving only some (but likely not all) handguns protected by the Second Amendment’s language.

Unlike the broader category of handguns at issue in Heller and Bruen, the record developed here demonstrates that assault weapons and LCMs are suboptimal for self-defense.

A set of statutes that bans only a subset of each category of firearms that possess new and dangerous characteristics that make them susceptible to abuse by nonlaw abiding citizens wielding them for unlawful purposes imposes a comparable burden to the regulations on Bowie knives, percussion cap pistols, and other dangerous or concealed weapons, particularly when “there remain more than one thousand firearms that Connecticut residents can purchase for responsible and lawful uses like self-defense, home defense, and other lawful purposes such as hunting and sport shooting.”

Well hang on there. If, according to Arterton, only those arms that are “pervasively” used in self-defense cannot be banned, then firearms most commonly used for lawful purposes such as hunting and sport shooting have no protection whatsoever under the Second Amendment, regardless of whether or not the state of Connecticut still allows them to be sold.

You can read Arterton’s lengthy dissertation for yourself here, but I’ll caution you before you start that her opinion reminds me of the apocryphal quote attributed to W.C. Fields; if you can’t dazzle them with brilliance baffle them with bullsh**. Arterton definitely left me scratching my head on multiple occasions, such as her rejection of the use of FBI crime statistics that point to rifles of any kind being rarely used in homicide because the data supposedly “provides limited relevant insight” since they “these statistics do not track what types of firearms are used with enough precision to determine whether they are assault weapons.” Arterton, meanwhile, blithely took the state’s “expert” John Donohue of Stanford University at face value, though Donohue has maintained that the individual right to keep and bear arms was created by the Supreme Court in Heller and was not a pre-existing right protected by the Second Amendment in 1791.

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In reality, there are 4 branches of government:
– Executive
– Legislative
– Judicial
– Jury,  as in Jury Nullification
This is an example

In first trial for feeding homeless outside Houston library, jury finds Food Not Bombs not guilty

The first of a controversial series of tickets Houston has issued the volunteer group Food Not Bombs went to trial Friday. And before the end of the day, a jury found the volunteer, Phillip Picone, not guilty of violating city law for feeding those in need in front of the Central Library.
The ordinance was put in place by City Council in 2012 but largely had gone unenforced for over a decade, municipal records show. The city began issuing tickets after funding its own dinners at a police parking lot just outside the courthouse doors where the trial was being heard. Houston has declared that the lot is the approved public site for any group that wants to give away meals.
In an emailed statement, a city spokesperson explained that the meal program Houston is funding at the police parking lot is designed to use food to attract people to a place where they can engage with an array of services “on a reoccurring basis.”
“This is why we fight back,” Picone said after the verdict.
As of the hearing, Food Not Bombs had received 45 tickets, each seeking $254, for continuing to pass out meals at the library instead. Volunteers have argued that the law is immoral and violates their freedoms of expression and religion.Nine more tickets are scheduled for court Thursday and Friday.
“The City of Houston intends to vigorously pursue violations of its ordinance relating to feeding of the homeless,” said Houston city attorney Arturo Michel said in a statement emailed Sunday evening. “It is a health and safety issue for the protection of Houston’s residents. There have been complaints and incidents regarding the congregation of the homeless around the library, even during off hours.” The city has also decided to stop using the Central Library as an official cooling center during heat emergencies like the one unfolding this week.
During jury selection Friday, Picone’s lawyer, Paul Kubosh, explained the Houston law to potential jurors with slices of cake wrapped in cellophane.
One by one, he placed them atop a wooden partition separating him from the jurors, recalled two Food Not Bombs volunteers present. If he gave five slices to people in need, without permission of the property owner, he was fine, he said, according to the volunteers. If he gave six, he’d be violating the ordinance. And if he gave them to people who were not in need, that was also fine. (Kubosh is representing a number of people in Picone’s situation free of charge.)

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Judge Willett concurs, saying that the pistol brace rule likely also violates the Second Amendment.

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Ending Chevron deference will protect the Second Amendment from abusive apparatchiks

The United States of America is an exceptional country with an exceptional Constitution and Bill of Rights. The principles enshrined in the founding documents have been copied by several countries over the past couple of centuries. Even the Soviet Union copied American concepts in its constitution. But, as everyone knew, all those Soviet guarantees were nothing but a joke.

So, what sets America apart from all the other attempted cheap knockoffs? For that, I would like to show you this video clip of the late Supreme Court Justice Antonin Scalia (C-Span backup link):

The basic principle that underpins American Liberty is the splintering and separation of powers both “vertically” into local/state/federal governments, and “horizontally” within each level into separate legislative, executive, and judicial branches.

That principle was violated rather egregiously in a 1984 Supreme Court case Chevron v. NRDC, in which the Court created a legal test now known as “Chevron Deference.” Justia summarizes it as follows:

A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.

In other words, the Judiciary forfeits its duty to interpret laws to the Executive branch when there’s ambiguity. This is on top of the legislative branch delegating its lawmaking duties to the Executive branch. This opening allowed Executive branch agencies, which are prone to aggrandizing their power, to run amok in abusive ways.

The Supreme Court recently granted a cert petition for a case that may end up overturning the Chevron Doctrine. Loper Bright Enterprises v. Raimondo was brought by a herring fishing company and concerns monitoring costs fishermen must pay the National Marine Fisheries Service (NMFS), even though the law in question doesn’t explicitly authorize it.

Why does Chevron Deference concern gun owners and Second Amendment advocates? Just yesterday, I wrote about how the Biden Department of Education took advantage of ambiguity in the Bipartisan Safer Communities Act (BSCA) to cut off funding for schools that have archery and hunting programs.

The abuse of regulatory power can also be seen in the ATF’s arbitrary redefinition of bumpstocks as machine guns, the redefinition of unfinished frames/receivers as fully functional firearms, and the redefinition of AR pistols with braces as Short-Barreled Rifles (SBRs).

There’s also an attempt by the U.S. Fish and Wildlife Administration to ban lead ammunition on federal lands.

Second Amendment groups have made note and are getting involved in the Loper case. The Supreme Court website shows almost 50 amicus briefs have been submitted, including those from the National Shooting Sports Foundation, Firearms Policy Coalition, and Gun Owners of America.

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Justice Alito Grants Temporary Stay for ATF’s “Ghost Gun” Rule

U.S.A. — On July 27, 2023, the Attorney General of the Biden Administration, Merrick B. Garland, applied for a stay to Justice Alito at the Supreme Court in the case of VanDerStok v. Garland. The request for an emergency stay had been refused by a three-judge panel of the United States Court of Appeals for the Fifth Circuit on July 24, 2023, as reported on AmmoLand.  One of the possibilities mentioned was the Biden administration would appeal directly to the Supreme Court. The possibility of a request for an en banc decision existed but was unlikely because the Fifth Circuit has been following the Supreme Court guidance in the Bruen decision for enforcing Second Amendment rights and because an en banc panel would not have been emplaced for a period of time.

The district court’s universal vacatur is irreparably harming the public and the government by reopening the floodgates to the tide of untraceable ghost guns flowing into our Nation’s communities.

You are correct if this sounds like the familiar song and dance put forward by dictators and authoritarians worldwide.

Update: Justice Alito grants administrative stay for a week. Responses are due on August 2, 2023.

Alito Grants Temporary Stay for ATF’s “Ghost Gun” Rule by AmmoLand Shooting Sports News on Scribd

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Chevron Deference Violates the Constitution, Argues FPC and FPCAF in Supreme Court Brief

Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced the filing of an important brief with the United States Supreme Court in the case of Loper Bright Enterprises v. Raimondo, in which FPC and FPCAF ask the Supreme Court to overrule the deference doctrine the Court established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The brief can be viewed at FPCLegal.org.

Chevron deference, as it has come to be known, requires a court to defer to an executive branch agency’s interpretation of federal law, even if that interpretation is not the best interpretation of the law. This doctrine has allowed federal executive branch agencies, such as the ATF, to run wild, unchecked by either Congress or the courts. Ending Chevron deference will help ensure that courts can better check federal executive branch power.

“Chevron violates Article III by transferring from the judiciary to the executive the ultimate interpretative authority to say what the law is,” argues the brief. “It violates Article I by incentivizing Congress to abdicate its legislative duties and delegate legislative authority to the executive. As a result, Chevron accumulates legislative, executive, and judicial powers in a single branch of government—which the Founders considered the very definition of tyranny.”

“The Framers of our Constitution learned from thousands of years of human experience that governments with power concentrated in one body are unsustainable and often tyrannical,” said FPCAF’s Director of Constitutional Studies, Joseph Greenlee. “The Framers, therefore, separated the legislative, executive, and judicial functions in our Constitution to prevent tyranny and safeguard our liberties. Chevron deference undoes this deliberate design, paving the way for abusive governance. We’re hopeful that the Court will use this opportunity to overrule Chevron and restore the Founders’ design.”…

Florida judge tosses gun possession cases now that permitless carry is in effect

On July 1st, it became legal in Florida for lawful gun owners to carry a concealed firearm without the need for a government permission slip. While the start of permitless carry hasn’t led to the state devolving into the Wild West or an anarchic dystopia, it has left courts around the state wrestling with what to do about those individuals who were arrested and charged with carrying without a license before the new law took effect.

On Tuesday, an Orange County courtroom was the setting for both a judge and prosecutors to throw out more than a half-dozen cases, though not every defendant is in the clear.

In a rapid-fire hearing Tuesday, an Orange County judge dismissed five cases of people charged with illegally carrying a concealed firearm that began before Florida’s new permit-less carry law took effect, while prosecutors opted to drop charges against two others.

The seven total decisions were made in a nine-minute span, with prosecutors and defense attorneys mostly referring to written arguments and saying little out loud.

Judge Mark Blechman did not give a reasoning when announcing his decision, but the few questions he asked suggested he was following the guidelines set out by the new law.…

So far, attorneys said Orange County’s court system has acted similarly to a roulette wheel, with attorneys getting different outcomes in each court room they argue in.

“I have about five pending right now with motions in various divisions,” Kathleen Gillard, whose client was among Blechman’s dismissals, said. “One judge still has it under advisement. I had watched a hearing last week where another judge granted somebody’s motion.”

Many attorneys have not yet asked their judges to dismiss their cases. Attorney Roger Weeden speculated it was because they were waiting to see how the early rulings would go. It’s estimated that there are hundreds of charges pending in various stages of the court system in Orange and Osceola counties alone.

Weeden said he himself had a half dozen cases he was working to offload, and hoped Tuesday would begin a domino chain.

“The judges are all going to be mindful of what the other judges are doing,” he explained.

Though prosecutors dropped the charge of carrying without a permit in two cases, both defendants are still facing charges for more serious crimes, according to State Attorney Monique Worrell.

The action by Judge Blechman seems like the most appropriate course to take. If the actions of those defendants were against the law when they were arrested, but the law now allows them to legally carry, what benefit is served by bringing them to trial or even offering them a plea deal in exchange for admitting guilt? The criminal justice system in this country is plagued with inefficiency and an over-reliance on plea bargains as it is, and clogging up courtrooms with non-violent, possessory carry cases that are no longer a crime is a terrible use of taxpayer dollars and the finite resources of prosecutors, public defenders, and the judiciary, not to mention a nightmare when it comes to protecting civil rights.

It’s unclear how many of the “hundreds” of outstanding cases around the state are purely possessory in nature, but there’s no reason why judges and/or prosecutors can’t dismiss the charges of carrying without a license while keeping any underlying charges in place. Florida’s criminal justice system, like its legislature, should be focused on delivering consequences for crimes of violence, not fueling infringements on our fundamental right to bear arms that have since been wiped off the books.

Judge vacates Bowe Bergdahl’s desertion conviction

FALLS CHURCH, Va. — A federal judge on Tuesday vacated the military conviction of Bowe Bergdahl, a former U.S. Army soldier who pleaded guilty to desertion after he left his post and was captured in Afghanistan and tortured by the Taliban.

The ruling from U.S. District Judge Reggie Walton in Washington says that military judge Jeffrey Nance, who presided over the court-martial, failed to disclose that he had applied to the executive branch for a job as an immigration judge, creating a potential conflict of interest.

Walton noted that former President Donald Trump had strongly criticized Bergdahl during the 2016 presidential campaign. Bergdahl’s lawyers argued that Trump’s comments placed undue command influence on Nance.

Walton rejected the specific argument surrounding undue command influence, but he said a reasonable person could question the judge’s impartiality under the circumstances.

Bergdahl was charged with desertion and misbehavior before the enemy after the then-23-year-old from Hailey, Idaho, left his post in Afghanistan in 2009. He said he was trying to get outside his post so he could report what he saw as poor leadership within his unit, but he was abducted by the Taliban and held captive for nearly five years.

During that time, Bergdahl was repeatedly tortured and beaten with copper wires, rubber hoses and rifle butts. After several escape attempts, he was imprisoned in a small cage for four years, according to court documents.

Several U.S. service members were wounded searching for Bergdahl. In 2014, he was returned to the U.S. in a prisoner swap for five Taliban leaders who were being held at Guantanamo Bay.

The swap faced criticism from Trump, then-Sen. John McCain and others. Both Trump and McCain called for Bergdahl to face severe punishment.

In 2017, he pleaded guilty to both charges. Prosecutors at his court-martial sought 14 years in prison, but he was given no time after he submitted evidence of the torture he suffered while in Taliban custody. He was dishonorably discharged and ordered to forfeit $10,000 in pay.

His conviction and sentence had been narrowly upheld by military appeals courts before his lawyers took the case to U.S. District Court, resulting in Tuesday’s ruling.

The Justice Department declined comment on the ruling Tuesday.

Eugene Fidell, one of Bergdahl’s lawyers, said he was gratified by the ruling and said Walton’s 63-page opinion shows how meticulous he was in rendering the ruling.

Calls and emails to the immigration court in Charlotte, North Carolina, where Nance now serves as an immigration judge, were not returned Tuesday evening.

Fifth Circuit Upholds District Court Decision Against ATF Partial Frame Rule

The United States Court of Appeals for the Fifth Circuit upheld a district court decision against the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) “partially complete” pistol frame rule.

Breitbart News reported that the ATF used its pistol frame rule to redefine “partially complete pistol frames” as “firearms.” This allowed the ATF to require background checks for certain gun parts kits by claiming said parts could be used to build guns.

On July 2, 2023, Breitbart News reported that Judge Reed O’Connor in the United States District Court Northern District of Texas Fort Worth Division decided against the ATF’s rule in a suit brought by Jennifer VanDerStok, the Firearms Policy Coalition, the Second Amendment Foundation (SAF), and others.

O’Connor stressed that the redefinition of gun parts is actually up to Congress rather than a federal agency. Moreover, O’Connor noted, “Because Congress did not define ‘frame or receiver,’ the words receive their ordinary meaning.”

He also pointed out that “weapons parts are not weapons.” He then vacated the ATF final rule.

The federal government appealed the ruling, and on July 24, 2023, the Fifth Circuit upheld the decision to vacate. The appeal was heard by Ronald Reagan-appointee Jerry Edwin Smith, George W. Bush-appointee Leslie H. Southwick, and Donald Trump-appointee Cory T. Wilson.

According to the Fifth Circuit:

Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. ‘[V]acatur …reestablish[es] the status quo ante’…which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.

The lawsuit is VanDerStok v. Garland, No. 23-10718, in the United State Court of Appeals for the Fifth Circuit.