Category: Courts

Poor Huffpo.

Heller, McDonald and Bruen are Affecting How State Legislatures View Pending Gun Control Legislation.

[Heller and McDonald] allowed opponents to wage new battles against longstanding gun laws. When District Judge Roger Benitez overturned California’s 34-year-old assault weapons ban two years ago, he pointed to Heller, saying that under the decision, “it is obvious that the California assault weapon ban is unconstitutional.”

Because the Heller ruling applied to guns in common use, the sheer volume of semi-automatic rifles in America protects them under the Second Amendment, according to Mark Oliva, a spokesperson for the National Shooting Sports Federation.

“There are currently 24.4 million of these rifles in circulation today,” Oliva said. “To put that into context for you, there are more of these rifles in circulation today than there are F-150s on the road.” …

Eight more states have laws similar to California’s assault weapons ban that could be affected if the Supreme Court ultimately weighs in.

The expectation that these laws may be doomed is already complicating the politics of passing new ones like them.

In New Mexico, Democratic Gov. Michelle Luján Grisham has repeatedly urged the legislature to send her an assault weapons ban to sign this session, but lawmakers tabled the effort — partly over concerns that it wouldn’t withstand scrutiny in federal court.

“There’s absolutely no point to passing new laws which federal courts will strike down and which are clearly going to be deemed unconstitutional,” state Sen. Joseph Cervantes, a Democrat, tweeted last month.

With those lawsuits still playing out, the future of gun policy remains in flux. But that legal panorama makes it hard to imagine clear lanes for reform in the near future.

“We’re in a very difficult spot with that Bruen ruling,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “Even though it was only about concealed carry, it’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”

— Roque Planas and Paul Blumenthal in How the Courts Are Strangling Gun Reform

You simply can’t make up this kind of crap-for-brains judicial double talk.

Comment O’ The Day:
This is exactly what happens when you allow the courts to go outside the original text as Scalia did in the Heller ruling.
Since when did the 2A say anything about dangerous and unusual weapons?
And no one in the decision asked; If it wasn’t dangerous, it wouldn’t be considered a weapon? Thus, not even under the purview of the court?
The problem is political bias. It’s time the courts started calling it plain.
Nothing about 2A is a difficult decision. Just an unpopular one in certain circles.
So much for even the thin veil of democracy they hide behind.
Bans aren’t unusual? That’s basically what started the revolution!

Second Amendment Roundup: An Opening Judicial Salvo in Defense of Illinois’ New Rifle Ban

The latest salvo in America’s “assault-weapon” wars is the decision of February 17 by Judge Virginia Kendall of the Norther District of Illinois in Bevis v. City of Naperville finding that plaintiffs are not likely to prevail on their challenge to the bans under the city’s ordinance or under Illinois’ just-passed Protect Illinois Communities Act.

Just last year in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court said that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” and that the term “arms” “covers modern instruments that facilitate armed self-defense” and “weapons that are unquestionably in common use today.” None of those three phrases found its way into the district court’s decision approving the prohibition of the AR-15, America’s most popular rifle, and many other semiautomatics.

The court started out on the right track recognizing that the plaintiffs had standing and that the harm they sought to alleviate was redressable. It made the interesting point that the Second Amendment “differs from many other amendments in that it protects access to a tangible item, as opposed to an intangible right,” and that makes it similar to the First Amendment, under which “individuals can sue when the government bans protected books or attempts to close a bookstore based on content censorship.”

While five appellate courts had upheld “assault weapon” bans, Bruen pulled the rug out from under them with its text-history approach and rejection of the two-part balancing test. The Seventh Circuit had gone its own way in Friedman v. City of Highland Park (2015), holding that the banned arms were not common at the time of ratification, had no militia nexus, and were not needed by citizens for self-defense. As Judge Kendall wrote, “Friedman cannot be reconciled with Bruen.” Per Bruen, protected arms are not limited to those that existed in 1791 or that are useful in warfare, and “the arguments that other weapons are available and that fewer assault weapons lower the risk of violence are tied to means-end scrutiny—now impermissible and unconnected to text, history, and tradition.”

So far so good, but that’s where the opinion goes awry. It states: “The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly ’dangerous’ weapons are unprotected.” For that it cites Heller at 627, but on that page Heller said that the Amendment protects arms that are “in common use at the time,” which is a limitation “fairly supported by the historical tradition of prohibiting the carrying of ’dangerous and unusual weapons.’”

For that proposition, Heller cited a dozen historical sources, only one of which substituted “or” for “and”—Blackstone referred to going armed with “with dangerous or unusual weapons.” But Bevis read too much into that conjunction. Bruen repeated the basic distinction between arms that are “in common use” and those that are “dangerous and unusual.” The Court in Staples v. US (1994) made a similar distinction between machine guns and commonly-possessed arms like the AR-15, noting that the latter are no different than cars in potentially being dangerous. And in Caetano v. Massachusetts (2016), Justice Alito wrote that “this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.”

So Bevis begins with the fundamentally wrong criterion that being particularly “dangerous,” alone, justifies banning a type of firearm.

The court goes on to justify the ban under a historical test, arguing that, unlike today, gun restrictions weren’t needed at the founding: “In the 18th century, violent crime was at historic lows; the rate at which adult colonists were killed by violent crime was one per 100,000 in New England and, on the high end, five per 100,000 in Tidewater, Virginia.” For that the court cites Randolph Roth, American Homicide 61–63 (2009). But as that book says, those were the rates “between the mid-1670s and the mid-1690s,” the low rate ended in “the revolutionary crisis of the 1760s and 1770s,” and “the extremely high homicide rates persisted until the end of the War of 1812 ….”

In arguing that guns were not a problem at the founding, the court describes muskets as being slow and fairly useless, and that “only a small group of wealthy, elite men owned pistols, primarily a dueling weapon.” This history is starting to read like Michael Bellesiles discredited Arming America. As I’ve shown in The Founders’ Second Amendment, long guns and pistols alike were in common use. For instance, just after Lexington and Concord, British General Thomas Gage confiscated 1,778 long guns and 634 pistols from the citizens of Boston.

Since there were no gun bans at the founding, the Bevis court turns to Bowie knives, citing restrictions in a minority of states in the antebellum period that focused mostly on banning concealed carry. An 1837 Georgia law made it unlawful for a merchant to sell a Bowie knife or to carry such knife or a pistol about the person, and Bevis states that “State-court decisions uniformly upheld these laws.” Not so. In Nunn v. State (1846), the Georgia Supreme Court held that the law violated the right to bear arms to the extent it prohibited open carry.

Nunn called the law an “absurdity” because it banned the sale and keeping of Bowie knives, pistols, and spears (!), but then exempted those who “openly wear” such arms. It then stated: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree ….”

Bevis next cites Aymette v. State (1840), in which the Tennessee Supreme Court affirmed a conviction for concealed carry, but upheld the right openly to carry swords, muskets, and rifles. Not exactly a precedent for banning such arms. And it cited the Texas Supreme Court decision in Cockrum v. State (1859), which upheld a law with enhanced punishment for murder using a Bowie knife, but added: “The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute.”

Bans on trap-guns set to discharge by tripping a cord are next cited by Bevis, but the guns themselves were not banned, just the dangerous practice. The next cited precedents were Prohibition-era bans on arms with certain firing capacities, but most referred to discharge “by a single pressure upon the trigger device,” i.e., machine guns, not semiautomatics.

The Illinois ban not having a basis in Bruen’s text-history approach, Bevis resorts to the disapproved means-ends scrutiny to show: “Assaults weapons pose an exceptional danger, more so than standard self-defense weapons such as handguns.” While “they fire quickly,” so can handguns.

The most puzzling statement of Bevis comes next: “The muzzle velocity of an assault weapon is four times higher than a high-powered semiautomatic firearm.” Moreover, the “injury along the path of the bullet from an AR-15 is vastly different from a low-velocity handgun injury ….” But now the court is comparing, depending on the cartridge type, all rifles with all handguns. No difference exists between the muzzle velocity of an “assault weapon” and any other rifle with the same cartridge and barrel length. While most AR-15s fire the .223 caliber cartridge, deer hunting rifles generally fire far more powerful rounds.

The Bevis court does not articulate any of the defined features of an “assault weapon” that make it so dangerous that it must be banned. Other than quoting the statute, it doesn’t even mention them. “A pistol grip.” And that makes it too powerful? A telescoping stock that makes it adjustable to the user. That makes it fire faster? Go down the checklist of verboten features. None have anything to do with the alleged ability to obliterate a victim.

We are left with who-knows-who’s definition of “assault weapon” as the court claims: “While a high number of assault weapons are in circulation, only 5 percent of firearms are assault weapons, 24 million out of an estimated 462 million firearms.” Avoiding Heller’s test that arms in common use by law-abiding citizens for lawful purposes are protected, the court assets that “just under 45 percent of all gang members own an assault rifle (compared to, at most, 15 percent of non-gang members) ….” Ignoring that the test is common use by law-abiding citizens, the “experts” have seriously misinformed the court in representing that such a large number of “gang members” own rifles of any kind.

Instead of addressing whether the banned items are “dangerous and unusual,” Bevis changes the criterion to say that “Assault-weapons and high-capacity magazines regulations are not ‘unusual,’” because eight states ban them. Since 42 states don’t, that sounds kind of unusual. And the FBI agent who said that “shotguns and 9mm pistols” are best for self-defense means nothing in view of the right, as Heller recognized, that the American people make that choice.

In denying the motion for a preliminary injunction, Bevis adds: “No binding precedent, however, establishes that a deprivation of any constitutional right is presumed to cause irreparable harm.” That doesn’t sound too promising for future protection of constitutional rights in general.

 

The post-Bruen “Sugar High” is a serious threat to our Second Amendment

The NYSRPA v. Bruen verdict passed by the Supreme Court last June was a watershed moment in American history. What began as a fight against the arbitrary power of government apparatchiks to grant concealed carry permits, often with a dollop of corruption, ended with a judicial standard that limits the power of government to infringe upon our right to keep and arms. The new guidance from the Supreme Court places the burden of proof on the government to show that a law that implicates the Second Amendment rights of citizens is in line with the nation’s history and tradition of firearms regulation.

The implications have been massive. From coast to coast, laws that were previously rubber-stamped by a jaundiced judiciary are being struck down.

  • Laws that created a malleable category of “assault weapons” and banned them? Gone!
  • Laws that mandated non-existent James Bond technology? Gone!
  • Magazine capacity restrictions? Poof!
  • Laws that banned out-of-state ammunition purchases? In the process of getting shot down.
  • Laws that restrict young adults from owning guns? On their way out.
  • Ammo background purchase requirements? About to get overturned…

California has seen a lot of the above action but New York, my state of residence, has also seen its fair share of lawsuits after the Empire State struck back.

There is a lot to celebrate. Gun owners in anti-Second Amendment states are giddy at being able to own pistol grips instead of obscene workarounds, threaded barrels, detachable magazines, and folding/adjustable stocks. They’re no longer limited to Gen3 Glocks, and are no longer discouraged to apply for a carry permit because they aren’t rich, politically connected, or refuse to participate in Third World bribery.

Yet, amid all this, I see reason for alarm. Granted, things were far worse and on a bad trajectory but seem to have turned around. Those gains, in my opinion, are tenuous and can be rolled back within our lifetimes. The scoreboard as it stands now is the result of a razor-thin Electoral College victory in 2016. Regardless of one’s sentiments and policy positions on abortion, the overturning of Roe v. Wade should serve as a warning.

In an ideal world, lawmakers would refrain from passing laws that violate the Constitution, the Executive Branch would stop usurping the authority of lawmakers, and the judiciary would make use of its lifetime tenure to judge cases on their merits and not be cowed down by public opinion or political pressure. But the world we live in is far from that. The weakened separation of powers will be dangerous in the long run, not just for the Second Amendment, but for the overall health of the Republic.

Secondly, the enemies of our freedoms are organized, well-funded, and waging an all-out war. They’re working secretly with the CDC, pushing propaganda in Hollywood, applying pressure campaigns on private industry, conspiring with academia, and using public money to push their agenda. I hesitate to say this, but they’re behaving like modern-day Benedict Arnolds, colluding with foreign nations to subvert the American Bill of Rights because of their deep-seated hatred and basic denial of our right to keep and bear arms.

I’ve heard people say that “we’ve got ’em on the ropes” but I’m doubtful. What I see is a danger arising from a post-Bruen “Sugar High” and complacency on the part of gun owners.

Will you stop your activism now that you can buy pistol grips and folding stocks? Will you stop calling your elected representatives now that you have your carry permit? Will you show up to vote or relax at home? Will your rifles gather dust in your safe as you go about your life assuming that the law and political circumstances will stay as they are now, and your freedoms will remain safe?

It’s a good idea to live like an optimist but prepare for the worst. I implore the reader to still act like your freedom is on the verge of obliteration: continue dutifully calling your elected representatives, speak up when needed, and most importantly, continue taking inexperienced people to the range and bring them into the fold of gun ownership, so our freedoms can be enjoyed by our grandchildren and their descendants a hundred years from now.

Litigation Highlight: Legal Challenges to ATF Rule on Stabilizing Braces

In January of this year, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published Final Rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’” The new rule changes the operative definition of “rifle” in the Code of Federal Regulations such that most pistols with attached stabilizing braces (often called “pistol braces”) will now be subject to heightened federal regulation under the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). Citizens, state attorneys general, and gun policy groups have already filed several lawsuits in federal district courts challenging the legality of ATF’s rule.

In this post, I’ll first introduce the pistol brace and the tale of historical (non)regulation, beginning with a brief table-setting history of the NFA and GCA. Second, I’ll survey the main legal arguments presented in the ongoing lawsuits, with a focus on Second Amendment challenges.

The NFA, GCA, and the “Short-Barreled Rifle” Category

The NFA, passed in 1934 in response to widely-publicized incidences of gang violence, imposed burdensome taxes, regulatory requirements, and criminal non-compliance penalties on the ownership and transfer of weapons associated with criminal use. In 1968, the GCA modified the definitions of certain weapons already regulated by the NFA and instituted a system of federal licensing for firearms distributors. Together, these two acts regulate machine guns (fully-automatic rifles like the “Tommy Gun,” infamously associated with Prohibition-era criminals); short-barreled rifles and shotguns; suppressors; destructive devices (like grenades and other explosives); and an amorphous category of “any other weapon” (now referred to as ‘AOWs,’ and understood to include ‘disguised’ firearms and firearms that don’t fit neatly into another category). Collectively, these weapons are known as “NFA items.”

More specifically, this regulatory scheme limits who may import, build, or purchase NFA items, and under what circumstances they may do so. The most onerous restriction at the time of the NFA’s passage was the $200 tax it imposed on possession of NFA items (equivalent to ~$4,500 in today’s dollars). Since the amount of this tax has not changed over the years, the tax itself is no longer the NFA’s most restrictive element. Instead, that honor now belongs to ATF’s ‘approval’ requirements, which involve extensive background checks and fingerprinting, as well as the registration of the individual NFA item with ATF. The average wait-time for an individual seeking to buy an NFA item, such as a short-barreled rifle (SBR), is estimated to be  270 days.

The NFA as originally written also regulated handguns, but a concerted lobbying effort on the part of the National Rifle Association caused lawmakers to drop handguns from the final bill. So, today, the NFA regulates neither handguns (defined in relevant part as “a firearm which has a short stock and is designed to be held and fired by the use of a single hand”) nor full-length rifles (defined in relevant part as “weapon[s] designed or redesigned, made or remade, and intended to be fired from the shoulder” and having a barrel longer than 16 inches). Since neither handguns nor full-length rifles are subject to NFA regulations, these two types of firearms are substantially easier to access than SBRs, which differ from full-length rifles only in their barrel length.

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Yes. It took 14 years, Justice Kennedy dying and Justices Gorsuch, Kavanaugh and Barrett being seated to get the job nearly done.

Report: Far More Gun Laws Struck Down in Wake of Bruen Than Heller

The Supreme Court’s latest Second Amendment ruling has delivered more immediate effects than its previous landmark decision.

A revised analysis from Jake Charles, an associate professor at Pepperdine University’s Caruso School of Law, shows dozens of gun-rights claims have already succeeded in federal court since New York State Rifle and Pistol Association v. Bruen was decided in June 2022. The new count, posted on Tuesday, puts post-Breun decisions far ahead of the pace of 2008’s District of Columbia v. Heller, which saw gun-rights advocates achieve relatively little in its immediate aftermath.

“There wasn’t a single successful Second Amendment challenge in the 6 months after Heller,” Charles said in a social media post. “In my research, I found *31* successful claims in the 8 months since Bruen.”

The disparity demonstrates that lower courts may be taking a different message from Bruen than Heller. While Heller established the Second Amendment protects an individual right to keep and bear arms, it didn’t produce an explicit test for deciding future Second Amendment cases and struck down a total handgun ban that was already an outlier. Bruen struck down a concealed-carry permitting regime that was still used by eight states before the case, set down a specific test for deciding gun cases, and chastised lower courts for the test they had been using to decide cases after Heller.

One complicating factor in comparing the results of either ruling is that Heller wasn’t incorporated and applied to the states until 2010’s McDonald v. Chicago. Still, comparing the Charles count to one in a 2018 paper by Duke Law Professor Joseph Blocher and Southern Methodist University associate professor Eric Ruben, it took until 2012 for gun-rights advocates to top 30 wins after Heller. The success rate for Second Amendment claims has also been significantly higher post-Bruen than it was in the first several years after Heller, with Charles finding 14.6 percent of post-Bruen claims succeeding while Blocher and Ruben found fewer than ten percent succeeded in the four years after Heller.

There has been a significant difference in success rates for civil claims compared to criminal claims, which won far less often. Charles also broke out challenges by topic and saw a stark difference in how lower courts have handled different issues. Claims involving carry licensing or defaulting private property to be off limits for gun carry have won every time thus far. Claims over age restrictions, “ghost gun” regulations, and sensitive place bans have succeeded about half the time. In contrast, challenges to commercial regulations, the National Firearms Act, unlawful gun use, sentence enhancements, and bail conditions have failed every time.

Charles, who ran the Duke University Center for Firearms Law before joining Pepperdine, has been critical of the Court’s decision in Bruen. Most of his newly-published analysis focuses on claims the standard it adopted is unworkable and asserts “the Supreme Court may desire to sit as a super-legislature over nationwide gun policy” while imploring ” lower courts, legislators, and citizens” to resist that possibility. He critiques the use of a history-based standard for deciding cases about current firearms regulations and notes areas where lower courts have been at odds on how to implement it in practice.

He cites the increase in victories for plaintiffs making Second Amendment claims as evidence the Bruen standard is degrading gun restrictions across the country.

“The Court’s historical test has the potential to significantly expand the Second Amendment’s scope,” Charles wrote in the analysis. “No matter how compelling the state’s interest, no matter how narrowly tailored its regulation, Bruen’s new method appears to dictate that a modern gun law cannot stand without adequate grounding in the distant past.”

Naturally, gun-rights activists took an opposing viewpoint. The Truth About Guns, a pro-gun publication, echoed language from the Bruen majority to explain the difference in how lower courts have reacted to each ruling.

“It’s no longer a second-class right,” the publication tweeted.

Kostas Moros, a lawyer for the California Rifle and Pistol Association, said the deluge of pro-gun decisions was akin to the release of pent-up demand. He argued Bruen itself was the result of how little effect Heller had on the way lower courts viewed the Second Amendment.

“We are just making up for lost time,” he posted. “If courts had applied Heller in good faith and we had a sort of ‘win some, lose some’ scenario, Bruen probably never would have happened (or would have been limited to just being about carry).”

This decision by the entire 5th Circuit is precedence setting, and law, for these states: Texas, Louisiana and Mississippi.

ICYMI 5 Circuit: Ban on 2A Rights by Civil Restraining Order is Unconstitutional

U.S.A. –-(AmmoLand.com)-— In the Fifth Circuit, the entire Court has ruled, en banc, that mere civil restraining orders may not infringe rights protected by the Second Amendment. The unconstitutional infringement was placed into law by the infamous Lautenberg Amendment in 1996. Hundreds of thousands of lives have been turned upside down and ruined by this infamous and unjust law.

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Legislators considering Constitution before passing laws? THE HORROR

When laws are challenged, they’re challenged on constitutional grounds. Is this law in keeping with the Constitution or is this a case of legislative overreach?

In fact, lawmakers are supposed to at least consider such things before passing laws. After all, they swear to support and defend the Constitution, which one would imagine requires them to consider it at a minimum before passing some bill.

But it seems that the folks at the Huffington Post are upset that lawmakers are considering court rulings before passing gun control. They made this pretty clear recently.

In fact, they’re so upset, they said it all over again.

Left In The Legislative Lurch

Eight more states have laws similar to California’s assault weapons ban that could be affected if the Supreme Court ultimately weighs in.

The expectation that these laws may be doomed is already complicating the politics of passing new ones like them.

In New Mexico, Democratic Gov. Michelle Luján Grisham has repeatedly urged the legislature to send her an assault weapons ban to sign this session, but lawmakers tabled the effort — partly over concerns that it wouldn’t withstand scrutiny in federal court.

“There’s absolutely no point to passing new laws which federal courts will strike down and which are clearly going to be deemed unconstitutional,” state Sen. Joseph Cervantes, a Democrat, tweeted last month.

With those lawsuits still playing out, the future of gun policy remains in flux. But that legal panorama makes it hard to imagine clear lanes for reform in the near future.

“We’re in a very difficult spot with that Bruen ruling,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “Even though it was only about concealed carry, it’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”

Now, in fairness, this is only one part of a much longer piece lamenting the rulings and the impact they’re having on gun control.

Still, it’s interesting that they’re still complaining about states not passing gun control because they figure it’ll be tossed by the courts.

I’m sorry, that’s not a bug. It’s a feature.

Huffington Post can be big mad all they want, but the truth of the matter is that gun control isn’t constitutional. The author tries to get hung up on the militia clause at one point–a matter that has been thoroughly and completely debunked–and then laments the text and history test laid down in Bruen, but at no point can they actually make a legitimate case that gun control is within keeping behind the text or spirit of the Second Amendment.

That’s unsurprising, of course.

I’m glad to see legislatures hold up a bit before infringing on people’s rights. I’m upset that they’re only starting to do it just now, but this is a case of better late than never.

If they’re holding up, that’s great, but as the piece also notes, a lot of places aren’t. In truth, that is the real problem, not those exercising a bit of caution and, dare I say, common sense.

Then again, it’s Huffington Post. What can you really expect?

Judge Blocks Feds From Enforcing ‘Ghost Gun’ Ban Against Polymer80

The country’s largest unfinished firearm parts maker is no longer subject to President Biden’s ban on homemade gun kits.

On Sunday, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, a George W. Bush appointee, decided the Bureau of Alcohol, Tobacco, Firearms, and Explosive (ATF) can’t enforce its new “ghost gun” rule against Polymer80. He found the ATF exceeded its authority when it attempted to reinterpret what constitutes a firearm in order to restrict sales of unfinished parts and homemade gun kits.

“The Final Rule’s redefinition of “frame or receiver” conflicts with the statute’s plain meaning. The definition of ‘firearm’ in the Gun Control Act does not cover all firearm parts. It covers specifically ‘the frame or receiver of any such weapon’ that Congress defined as a firearm,” Judge O’Connor wrote in Polymer80 v. Garland. “That which may become a receiver is not itself a receiver.”

The ruling comes just a few weeks after Judge O’Connor issued a similar order in a separate case involving several other major makers of unfinished gun parts. It further restricts the ATF’s ability to enforce its “ghost gun” rule, dealing a blow to President Joe Biden’s attempts to unilaterally implement new gun restrictions through ATF rulemaking. Taken together with the full Fifth Circuit’s decision to strike down the bump-stock ban, it also spells more bad news for President Biden’s more recent pistol-brace ban.

Unfinished gun parts and homemade gun kits have been at the center of the gun-control debate for years because they can be sold without serial numbers or background checks since they require significant finishing to be made into functional firearms. The Biden Administration has sought to expand the definition of “firearm” so that those selling the unfinished part would be considered “engaged in the business” of making and dealing firearms. That would require them to obtain federal licenses to make and sell their products. Gun-rights advocates have opposed the expansion of ATF power because they believe it threatens their Second Amendment rights.

However, this case was not decided on Second Amendment grounds. Instead, Judge O’Connor ruled the ATF’s actions violate the Administrative Procedure Act (APA), which governs how much latitude federal agencies have when interpreting and enforcing federal laws.

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In NCLA Win, Federal Judge Rejects Motion to Dismiss in Government-Induced Censorship Lawsuit.

Washington, DC (March 20, 2023) – In a thorough and well-reasoned decision, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has denied government defendants’ motion to dismiss in State of Missouri, et al. v. Joseph R. Biden, Jr., et al. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents renowned epidemiologists Drs. Jay Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Ms. Jill Hines, in a lawsuit that has exposed an elaborate, multi-agency federal government censorship regime. Judge Doughty wrote, “The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.”

Discovery in the lawsuit unequivocally establishes that at least eleven federal agencies and sub-agencies, including CDC and DHS, directed social media companies to censor viewpoints that conflict with the federal government’s messaging on topics ranging from Covid-19 to elections. Federal officials engaged in a lawless, expansive censorship campaign that employed illicit tactics—including coercion, collusion and coordination—on social media companies to suppress the airing of disfavored perspectives on Covid-19 and other topics. As a direct result of state action, NCLA’s clients were blacklisted, shadow-banned, de-boosted, throttled, and censored, merely for articulating views opposed to government-approved views on Covid-19 restrictions and regulations. Judge Doughty held that “Plaintiffs have plausibly alleged state action under the theories of joint participation, entwinement, and the combining of factors such as subsidization, authorization, and encouragement.”

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Cert. Petition on the First Amendment and Coercive Government Threats in NRA v. Vullo.

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA’s ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it’s a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA’s side in the District Court.) Here’s our Introduction:

The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials “threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with” a controversial speaker, on the ground that disfavored political speech poses a regulable “reputational risk.”

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute “general backlash” against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court’s precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit’s precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actions—including press releases, official regulatory guidance, and contemporaneous investigations and penalties—issued by or on behalf of New York’s powerful Department of Financial Services (“DFS”) against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed “reputational risk” of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo’s actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

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Federal Judge Blocks California Handgun Restrictions

California can’t ban residents from buying modern handguns.

That’s the ruling handed down by Federal District Judge Cormac J. Carney, a George W. Bush appointee, on Monday. He found California’s requirement that all new pistols sold in the state include a series of uncommon or even theoretical safety devices is unconstitutional. He ruled the regulation, which has resulted in no new handgun models being sold to civilians in nearly a decade, violates the Second Amendment.

“Californians have the constitutional right to acquire and use state-of-the-art handguns to protect themselves,” Judge Carney wrote in his preliminary injunction for Boland v. Bonta. “They should not be forced to settle for decade-old models of handguns to ensure that they remain safe inside or outside the home.”

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Monday a big court day for 2nd amendment, gun laws, gun rights

The U.S. Court of Appeals for the Second Circuit, in Manhattan, will hear five second amendment cases Monday.

“My hopes are Monday evening the case is decided and New Yorkers get their gun rights back,” says Oneida County’s assistant pistol licensing officer, Dan Sullivan.

It’s not clear if the judges will rule from the bench, or, reserve decision and issue a written one at a later date. But Sullivan is hopeful for the outcome.

“You’ve got the highest court in the land and you’ve got three federal judges who’ve stated in writing that the carry concealed improvement act is not constitutional, so I’m hoping we get our gun rights back,” says Sullivan.

“I think 70 or 80% of gun owners don’t have a clue what the law is right now,” says Sullivan. “I think there’s an awful lot of people that are carrying like they’ve always carried, and I don’t think they’re doing that out of maliciousness, I think they’re doing that out of simply not knowing what the law is right now”

For now, New York’s Concealed Carry Improvement Act remains intact.

Falls pastor may be headed to U.S. Supreme Court over New York gun law

It’s a case that has already made its way to the United States Supreme Court.

And it’s likely to return there.

But first, Niagara Falls pastor Jimmie Hardaway Jr.’s constitutional challenge to New York’s Concealed Carry Improvement Act (CCIA) faces a Monday morning hearing before a three-judge panel of the U.S. Second Circuit Court of Appeals. The New York City-based court is widely considered one of the most influential appeals courts in the nation.

Hardaway, of Trinity Baptist Church, and Rev. Larry Boyd, pastor of Open Praise Full Gospel Baptist Church in Buffalo, challenged the constitutionality of the CCIA, along with two national pro-gun groups, Las Vegas-based Firearms Policy Coalition and Bellevue, Washington-based Second Amendment Foundation in a lawsuit filed in the U.S. District Court for the Western District of New York. The suit sought to block a provision of the CCIA that bars individuals from bringing firearms into places of worship.

Boyd and Hardaway also sought to have the CCIA struck down in its entirety as unconstitutional.

Hardaway and Boyd have argued in the case that they would suffer irreparable harm, and that their Second Amendment rights would be violated, if the places of worship restriction was not blocked. In an affidavit accompanying the original lawsuit, Hardaway acknowledges that he is a member of the two pro-gun groups involved in the case and that he is licensed to carry a handgun in New York.

“Prior to the enactment and enforcement of the Place of Worship Ban, I would consistently carry a firearm on Trinity Baptist Church’s premises,” Hardaway said in the affidavit. “I would intend to keep carrying for self-defense and to keep the peace at Trinity Baptist Church.”

U.S. District Court Judge John L. Sinatra Jr. conducted an expedited hearing on Hardaway and Boyd’s lawsuit and, just hours after oral arguments in the case, issued a 40-page decision and order that granted a temporary restraining order (TRO) blocking the enforcement of the places of worship restriction.

New York Attorney General Letitia James, whose office defended the CCIA, had sought to remove Sinatra, an appointee of former President Donald Trump, charging that Hardaway and Boyd had engaged in “judge shopping” by having the case directed to Sinatra.

Two weeks later, in a decision and order that followed almost word-for-word and page-for-page his decision on the TRO, Sinatra granted the pastors a preliminary injunction that blocked the enforcement of the places of worship restriction. Weeks later, Sinatra ruled the entire CCIA was unconstitutional.

James appealed Sinatra’s decisions to the Second Circuit and asked the appeals court to block his rulings while they considered them. The attorney general asked the appeals court to overturn, “in each and every aspect,” Sinatra’s rulings.

The Second Circuit judges issued a stay on Sinatra’s decisions, which effectively reinstated the CCIA and the places of worship restriction.

Hardaway and Boyd asked the U.S. Supreme Court to intervene and overturn the stay. They argued that their rights under the Second Amendment had been “indefinitely suspend(ed).”

“Applicants, along with countless others like them, are being irreparably harmed each day this patently unconstitutional law remains in place, eviscerating the right of ordinary, law-abiding New Yorkers to carry firearms in public for self-defense,” Hardaway and Boyd’s lawyers told the high court. “Additionally, this case presents issues of national importance with respect to states that enact laws in explicit defiance of this court’s decisions.”

In January, the court, without any noted dissents, allowed the stay to remain in place while the Second Circuit proceedings continued.

The appeals court panel will hear up to 20 minutes, 10 minutes for each side, of arguments in the case. The case has attracted friend of the court briefs from both pro-gun control and pro-gun rights groups, as well as the attorneys general from a dozen states opposed to the New York law.

In his decision and order, Sinatra wrote that the State of New York had responded to the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen by enacting “even more restrictive legislation” than what the high court had declared unconstitutional.

“The court reiterates that ample Supreme Court precedent addressing the individual’s right to keep and bear arms — from Heller and McDonald to its June 2022 decision in Bruen — dictates that New York’s new place of worship restriction is equally unconstitutional,” Sinatra wrote.

During oral arguments in the case, Sinatra appeared dismissive and openly hostile to the arguments being made by lawyers for the state.

“In Bruen, the (Supreme Court) made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation’s historical tradition,” Sinatra wrote in his decisions. “New York fails that test. The State’s exclusion is, instead, inconsistent with the Nation’s historical traditions.”

Hardaway has maintained that his church has an “open-door policy” that carries risk over “who will walk in the door for services.” The pastor also claims that the “horrific murders” of nine parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in 2015, has “stiffened (his) resolve to carry for self-defense and to keep the peace at Trinity Baptist strong

Should the Fifth Circuit Reconsider Rahimi En Banc?

The Fifth Circuit’s decision in United States v. Rahimi, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. On March 2, a month after it initially released its decision, the Fifth Circuit panel withdraw its original opinion and substituted a revised version.

The end result is the same, and the updates to the controlling opinion appear to be modest, but Judge Ho significantly expanded his concurring opinion, in which he sets out to “explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.” Judge Ho emphasizes that “[t]hose who commit violence, including domestic violence, shouldn’t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated.”

But because the law at issue in Rahimi “disarms individuals based on civil protective orders—not criminal proceedings,” the panel found no “analogous historical tradition sufficient to support” it. That was especially true, given the way that civil protective orders are used (and abused) in our system, including by a common practice of issuing “mutual restraining orders” in domestic violence cases, a practice that results in the federal prohibition actually disarming domestic violence victims.

Judge Ho’s concurrence also highlights the importance of the Fifth Circuit getting this case right. He notes that before Bruen, circuit courts routinely misapplied Heller despite frequent criticism from the members of the Supreme Court that they were “disfavoring the Second Amendment.” And he correctly recognizes that Bruen was a response to the lower courts’ intransigence: “The Supreme Court has now responded by setting forth a new legal framework in Bruen. It is incumbent on lower courts to implement Bruen in good faith and to the best of our ability.”

Of course, the issue is fraught, so Rahimi has received a lot of attention. Given that it invalidated a federal statute, it seems like a likely candidate for catching the Supreme Court’s attention too. In fact, it appears that the Justice Department views this as a particularly good vehicle to ask the Supreme Court immediately to consider (or reconsider) some of the effects of its decision in Bruen. Attorney General Merrick Garland made a statement over a month ago, vowing to “seek further review of the Fifth Circuit’s … decision,” but there is no indication he intends to seek that review from the Fifth Circuit.

For those of us who believe Bruen got it exactly right, Rahimi may be a bad vehicle for the Supreme Court to flesh out its decision in Bruen. As much as the Justices may try to focus on the bigger-picture legal issues, bad facts make bad law, and Rahimi is full of bad facts. Even if the law that kept him from possessing firearms in this case is unconstitutional—and the panel opinion makes a compelling case that the law lacked support from the founding era—it seems clear that Mr. Rahimi is exactly the sort of person who should be able to be disarmed consistent with the Second Amendment. He was involved in five shootings in two months, including one instance when he “fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”

The Fifth Circuit should consider rehearing the case en banc. This would have the advantage of setting the clearest possible precedent to govern future Second Amendment challenges under Bruen and, perhaps just as importantly, permitting other Second Amendment challenges to get to the Supreme Court first. The federal rules of appellate procedure say a case is a good candidate for reconsideration if it “involves a question of exceptional importance.” The issue in Rahimi meets that standard several in different ways.

The Third Circuit recently heard en banc argument in United States v. Range, a case raising the constitutionality of the federal law against felon possession of a firearm—a separate subsection of the same law at issue in Rahimi—and it decided the issue was worth en banc treatment just three days after receiving the petition for rehearing was filed. More recently, the Eleventh Circuit issued a decision in National Rifle Association v. Bondi, holding that a Florida law restricting the Second Amendment rights of 18-to-20-year-olds to purchase a firearm was constitutional under Bruen. That same day, before any petition for rehearing could be filed, a judge of that court apparently called for an en banc poll, because the court entered an order withholding issuance of the mandate.

Under Fifth Circuit Internal Operating Procedures, any judge may initiate a vote to take a case en banc, even without a petition. And since it appears no petition for rehearing is forthcoming from the Justice Department, the judges of the Fifth Circuit should exercise that prerogative here. Rahimi may well wind up at the Supreme Court anyway, but given the importance of the issues, and Judge Ho’s (correct) assessment that Bruen has tasked the courts of appeals with fleshing out its method first, the Fifth Circuit may do well to consider Rahimi as a whole court first.

The Buckeye Institute Urges Court to Overturn New York’s Unconstitutional Gun Law
Mar 14, 2023
Columbus, OH – On Monday, The Buckeye Institute filed an amicus brief in Christian v. Nigrelli with the U.S. Court of Appeals for the Second Circuit on behalf of Project 21, a national network of black political, civic, and business leaders. In its brief, The Buckeye Institute argues that New York’s Conceal Carry Improvement Act violates the right of the citizens of New York, particularly black New Yorkers, to keep and bear arms, which the U.S. Constitution guarantees.

“For decades, African Americans and other racial minorities were the targets of firearms regulations that prevented them from exercising their right to bear arms, regulations that were often enacted with racial animus,” said David C. Tryon, director of litigation at The Buckeye Institute. “But as The Buckeye Institute argues on behalf of its client, ‘Historical regulations designed to oppress racial minorities or show distrust or animus towards “disfavored” groups, cannot be the basis for infringing on the right to bear arms.’”

In New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court clearly told New York that it was unconstitutional to deny people their Second Amendment rights by forcing citizens to prove they have a “special need” before they could obtain a license to carry a firearm. In its brief, The Buckeye Institute shows that New York has simply substituted “special need” with “moral character” to deny members of disfavored groups—such as minorities and the urban poor—their constitutional right to keep and bear arms.

Here’s how progressive lawyers are using public nuisance lawsuits to outlaw guns
O.H. Skinner says public nuisance lawsuits are the next ‘Trojan horse’ for the progressive agenda

EXCLUSIVE – A consumer protection group is warning Republican governors against attempts by left-leaning lawyers to use public nuisance lawsuits as a backdoor way to outlaw guns.

The Alliance For Consumers (AFC), a nonprofit organization aimed at “ensuring consumer protection efforts, class action lawsuits, and attorney general enforcement actions benefit consumers,” sent a letter to all GOP governors Friday saying that since the many state legislatures have recently flipped to a Republican majority, they should be on the lookout for progressive activists attacking gun rights through these legal actions.

“With victories through the legislative process becoming harder to achieve, the progressive left is increasingly looking to an alliance of activists, officials, and trial lawyers to weaponize the judicial system against conservatives and impose key policy priorities by way of public nuisance lawsuits,” AFC president O.H. Skinner wrote.

“Under the guise of compensation for injuries to the overall public interest, these lawsuits open the door to courts imposing sweeping policy solutions outside the traditional governmental processes or otherwise reshaping the economy through massive money transfers,” Skinner added.

Public nuisance laws vary from state to state. Historically, they have been used to protect consumers and the public against things like polluted waterways or hazardous public spaces.

However, Skinner said “activists have found a way to use the court system as a weapon to force companies and consumers to comply with a progressive worldview without legislative oversight or public scrutiny.”

“If you hear someone say, ‘We should bring a nuisance case,’ that is a Trojan horse to accomplish something that you probably don’t agree with.” Skinner said in an interview with Fox News Digital.

Skinner claims that “the true goal of most nuisance suits over things like plastics, fossil fuels or firearms is seemingly to remove products and services from in the market that do not align with the progressive agenda.”

Skinner said that progressive trial lawyers will try to make the case that just as fossil fuels and plastics are bad for the environment that is shared by the public, guns can also cause public harm, and therefore, courts should curb their use because of this “public nuisance.”

Once example of this already taking place, Skinner noted, is a case from 2022 brought by a leading personal injury law firm – Napoli Shkolnik— that filed public nuisance suits on behalf of New York cities Buffalo and Rochester.

According to Skinner, that suit claimed that major American firearms manufacturers’ work to design, produce, market and sell has “created, contributed to, and maintained the public nuisance of unlawful possession, transportation and disposition of firearms, and the utilization of guns in the commission of an offense.”

“Activists have largely been able to hide the ideological aspects of public nuisance litigation,” Skinner said. “But make no mistake: public nuisance claims are about liberal control, not just about money, and certainly not about helping consumers.”

Montana Attorney General Austin Knudsen told Fox News Digital that while public nuisance laws “have their place” and are a “tool that needs to exist,” governors and state legislators should consider making changes to such laws so they are not abused.

Fourth Circuit panel appears skeptical of Maryland’s “handgun qualification license”

Back in 2013, as part of its Firearms Safety Act, the Maryland legislature created a Handgun Qualification License, which does not actually permit you to possess a handgun. Instead, it’s a permission slip to undergo a background check and go through the process of purchasing a firearm at retail. Not only does the law impose an additional and extraneous burden on would-be gun buyers, it adds to the cost of exercising your right to keep and bear arms by mandating a four-hour training class at a live-fire range as well as paying for your fingerprints to be taken and submitted to the state police.

The law is the subject of litigation filed by Maryland Shall Issue, and on Friday majority of a three-judge panel in Richmond seemed skeptical of Maryland’s argument that the law should be upheld despite the fact that the Attorney General’s office could find no analogue to the HQL in the historical record.

“The historical tradition is the substantive limitations that are furthered by the HQL law,” Assistant Attorney General Ryan Dietrich said. “Those are ensuring that dangerous, subversive, non-virtuous folks do not get deadly firearms.”

Dietrich argued that firearm competency is a tradition that was alive and well during the founding era. Dietrich cited a law from that time requiring citizens to pledge their loyalty to the United States or be disarmed as an example of the long tradition of limitations on the Second Amendment.

U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, disagreed with the example, stating that the loyalty test has to do with taking away firearms while the Maryland law relates to preclearance.

Richardson used numerous hypothetical situations to try to get Dietrich to concede that the HQL requirement infringes on Second Amendment rights.

“Is your argument that that time period where he cannot buy a firearm to protect his family and his home is not an infringement?” the judge asked.

Dietrich responded that although the law affects law-abiding citizens’ Second Amendment rights, it does not infringe upon them.

Richardson had fun with Dietrich’s bizarre claims, asking if anyone’s Fourth Amendment rights would be infringed upon if they and every other resident in their city were confined to jail for a month while police determined if any of them were bad actors. As Richardson pointed out, the Fourth Amendment protects against “unreasonable” searches and seizures, but the Second Amendment doesn’t talk about any “reasonable infringements.” Any and all infringements are unconstitutional under the Second Amendment’s language, and that would presumably include needless delays or extraneous licensing procedures.

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Federal Court Issues Flawed Decision Striking Down Missouri Gun Sanctuary Law
The ruling has significant shortcomings and may be overruled on appeal. The Biden Administration’s position in this litigation is wrong for much the same reasons as the Trump Administration was wrong to target immigration sanctuaries.

On Tuesday, federal district court Judge Brian Wimes issued an important ruling striking down Missouri’s Second Amendment Protection Act (SAPA). SAPA is a “gun sanctuary” law that restricts state and law-enforcement cooperation with efforts to enforce federal gun control laws.

Gun sanctuary laws enacted by red states are in large part modeled on immigration sanctuary laws enacted by numerous blue states and localities, in order to limit state cooperation with enforcement of federal immigration laws. During the Trump Administration, the federal government lost numerous lawsuits challenging the legality of immigration sanctuaries (I went over those cases in detail in a Texas Law Review article, and a piece for the Washington Post). Imitation is the sincerest form of flattery, and several red states have decided to imitate the blue states’ success. Courts—including both liberal and conservative judges—were right to rule in favor of immigration sanctuaries, and Judge Wimes should have applied the same principles in the gun context, as well.

Judge Wimes correctly recognizes that “Missouri cannot be compelled to assist in the enforcement of federal regulations within the state.” Longstanding Supreme Court precedent holds that the federal government cannot “commandeer” state officials to help enforce federal law. That precedent played a key role in the Trump Administration’s defeats in various immigration sanctuary cases, most notably in the California “sanctuary state” case, which is closely analogous to the Missouri gun litigation. Judge Wimes could have saved himself a lot of time and effort by simply applying the same logic here.

Instead, the court concludes that SAPA violates the Supremacy Clause of the Constitution (which mandates that constitutionally authorized federal law is supreme over state law) because the Missouri law goes beyond merely refusing to help the feds and actually “regulate[s] federal law enforcement” and  “interfere[s] with its operations.” But, in reality, SAPA does no such thing. Its provisions merely impose constraints on state and local officials. To the extent that may not be true, Judge Wimes should have struck down applications of the law to federal officials, while leaving intact the constraints it imposes on state ones.

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