Category: RKBA

Movement in the Federal Courts Regarding RKBA

Monday, the Supreme Court heard its FIRST major gun rights case in nearly a decade [brought by NRA & NYSRPA] — in which GOA submitted an amicus brief challenging New York City’s near-prohibition on possessing or transporting handguns.

Regarding the Supreme Court case, our brief argued that New York City limits the right to keep arms only to certain Americans who meet requirements set by the city.

These American citizens who wish to exercise their Second Amendment right to own a firearm are subjected to invasive government screening, arbitrary waiting periods, and substantial fees.

The few Americans who qualify cannot “bear arms” in the true sense of the phrase as recognized in Heller.

Instead, they can only “keep” arms in their home or place of business. And when carrying a handgun to an approved shooting range, honest citizens have to keep their handgun unloaded and locked away, rendering the firearm totally useless for self-defense.

We are using the PLAIN TEXT OF THE SECOND AMENDMENT to argue against these vicious assaults on innocent Americans’ rights.

As stated in our brief, no reasonable person could possibly argue that the people of New York City are free to exercise their God-given rights outlined in the Second Amendment.

But Monday’s Supreme Court hearing was only the beginning.

The Sixth Circuit Court of Appeals will next hear a case of ours on December 11 which challenges the federal bump stock ban as well as the dangerous precedent of allowing unelected bureaucrats to ban an item that had been completely legal for years.

The federal ban on bump stocks also has dangerous consequences for other firearms including AR-15s and other modern sporting rifles.

If a bump stock can turn an AR-15 into a machine gun, then ANYTHING can — even a rubber band or a belt loop.

This is why Gun Owners of America proudly holds a NO COMPROMISE stance on the Second Amendment because we know that when the anti-gunners are given even one inch, they come back for a foot.

But now more than ever before, we need your help as we go up against the anti-gunners and their army of swamp lawyers to defend Americans living behind enemy lines who simply want to exercise their God-given rights as outlined in the Second Amendment.

So please, make a tax-deductible contribution to the Gun Owners Foundation’s Legal Defense Fund to help offset the massive costs we will incur to fight the anti-gun lobby — and it will be MATCHED by a generous donor committed to saving the Second Amendment.

In Liberty,

Erich Pratt
Senior Vice President
Gun Owners Foundation

 

NYC Lawyer Admits to SCOTUS Gun Regulation Had No Impact on Safety

The lawyer defending New York City in a Second Amendment case on Monday admitted to the Supreme Court that the city’s gun restrictions had no impact on public safety and that gun rights extend beyond the home.

During oral arguments for New York State Rifle & Pistol Association v. New York City, city attorney Richard Dearing told Justice Samuel Alito that a city regulation governing where gun owners could carry their firearms did not make residents safer. He said New York police determined “The rule could be repealed without a negative impact on public safety” before the state rolled it back. He went on to concede that the Second Amendment applies beyond the home, a core question at issue in the case.

“What I’m conceding is that, in the case of a premises license, the Second Amendment has something to say about what effective possession in the home means,” Dearing told Alito during oral arguments. “And sometimes that may mean … that a license holder needs to be able to undertake certain activities outside the home.”
David Rutz breaks down the most important news about the enemies of freedom, here and around the world, in this comprehensive morning newsletter.

The comments from Dearing may weigh on how the case concludes. If the Court does not declare the case moot, as it still might, it could rule that the Second Amendment protects the right to bear arms outside the home. Such a decision would be a significant follow-up to the ruling in District of Columbia v. Heller, the 2008 case that paved the way for Second Amendment challenges at the Supreme Court. A ruling in the New York case could also have a significant impact on gun-transportation and gun-carry laws across the country.

Much of the discussion during Tuesday’s oral arguments focused on whether the case was now invalidated because the regulation in question had been mostly undone. New York state rolled back the regulation after SCOTUS accepted the case, leading gun-control activists to express fear of the effects of a ruling in the plaintiffs’ favor. New York City argued Tuesday that the case should be dismissed, while plaintiffs argued the change was designed to undermine the case and did not provide a full legal remedy.

The debate centered on plaintiffs’ ability to recoup damages, and on whether traveling gun owners who stop “for a cup of coffee” or “to visit your mother” would be subject to prosecution under the revised gun-transportation law. While Dearing assured the justices that the city would instruct police not to arrest such individuals, he was less clear about what constituted a “reasonably necessary” stop while transporting guns. After Justices Neil Gorsuch and John Roberts pressed him, Dearing retorted that the question was beyond the case’s scope.

The Court had an opportunity to void the case in the immediate aftermath of the regulation being undone, but decided to hear full arguments instead.

The justices will vote this week on how to proceed with the case, but a public announcement of their decision is likely weeks, or even months, away.

Transcript of today’s oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York

New York City, Which Defended Its Onerous Gun Transport Restrictions As Necessary for Public Safety, Concedes They Weren’t
Several justices seem skeptical of the claim that revising the rules after SCOTUS agreed to consider a challenge to them made the case moot.

For decades, New York City enforced uniquely onerous regulations that effectively prohibited licensed pistol and revolver owners from taking their weapons outside their homes, even when they were unloaded and stored in a locked container, unless they were traveling to or from one of seven gun ranges in the five boroughs. When several gun owners challenged those regulations, the city successfully defended their constitutionality for five years, obtaining favorable rulings from a federal judge and the U.S. Court of Appeals for the 2nd Circuit. But after the U.S. Supreme Court agreed to hear an appeal of that decision, the city rewrote its rules, backed a state law that eased restrictions on transporting guns, and urged the Court to drop the case, arguing that the regulatory and statutory changes made it moot. During oral arguments today in New York State Rifle & Pistol Association v. City of New York, several justices seemed skeptical of that claim, which is transparently aimed at avoiding a Supreme Court decision that could clarify the contours of the Second Amendment.

Chief Justice John Roberts asked Richard Dearing, the attorney representing New York City, whether a prior violation of the old transportation regulations might be held against a gun owner when he tries to renew his license. “It absolutely will not,” Dearing said, although the discretion to deny licenses for “good cause” seems to make that a real risk.

Justice Neil Gorsuch suggested that the possibility of obtaining compensation for economic damages related to the old regulations, although it was not specifically sought by the plaintiffs, might be enough to keep the case alive, as Principal Deputy Solicitor General Jeffrey Wall argued. “This litigation, I think, has taken five-plus years, and that [issue] has become relevant only at this late stage, after the city and the state have enacted a new law,” Gorsuch observed. “Why isn’t the prospect of allowing damages to be added to the complaint enough?”

Gorsuch also noted that it’s unclear whether the new rules allow gun owners to make stops while en route to ranges, competitions, or second homes outside the city. The city says such trips have to be “continuous and uninterrupted,” while the state law says gun owners have to be traveling “directly” to their destinations. If those restrictions might be read to preclude stops for coffee, gas, or bathroom breaks, Gorsuch wondered, “why isn’t there a live controversy remaining?” He suggested that “despite herculean, late-breaking efforts to moot the case,” there is still relief the plaintiffs could obtain only through a decision on the merits.

Dearing assured the justices that the NYPD would not look askance at “reasonably necessary” stops for coffee, gas, or bladder relief, prompting Gorsuch to wonder, “Is coffee reasonably necessary?” While that remark prompted laughter, Gorsuch emphasized his point: “What’s going to qualify? I’m just a little unclear about that.”

So was Dearing. Justice Samuel Alito, who like Gorsuch remarked upon “the quite extraordinary step of trying to moot the case after we granted review,” wondered about a gun owner who drives to a range in New Jersey and stops to “visit his mother for a couple of hours to take care of a few things for her.” Dearing was unsure whether that would be allowed. “I think that would have to be a question now to be litigated under the state law,” he said. “I hadn’t considered the mother or mother-in-law example before.”

Speaking for the plaintiffs, Paul Clement said Dearing’s assurances are not good enough to make the case moot. “The city took it on itself in Section 7 of the new regs to tell you what they, at least at that point, thought was sufficiently direct, which is ‘continuous and uninterrupted,'” he said. “They’re now making representations that the reg doesn’t mean what it seems to mean….My client[s] shouldn’t have to rely on those representations. They should get that in writing in an injunction that would be enforceable. That would be effectual relief.”

Perhaps the most telling exchange involved not the mootness issue but the constitutionality of the original rules:

Alito: Mr. Dearing, are the people in New York less safe now as a result of the enactment of the new city and state laws than they were before?

Dearing: No, I don’t think so. We made a judgment, expressed by our police commissioner, that it was consistent with public safety to repeal the prior rule and to move forward without it.

Alito: Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?

Dearing did not have a very good answer, except to say that the city’s arbitrary restrictions on transporting firearms may have made its other rules a bit easier to enforce. As the petitioners note, “The only ‘evidence’ the City has ever mustered to support the tailoring of its policy is an affidavit from a former commander of the state licensing division hypothesizing, with no evidentiary support whatsoever, that the mere presence of a handgun—even unloaded, secured in a pistol case, separated from its ammunition, and stowed in the trunk of the car—might pose a public-safety risk in ‘road rage’ or other ‘stressful’ situations.” The city will have to do better than that if it wants to demonstrate that its rules were consistent with the constitutional right to keep and bear arms, which is why it is so desperate to stop the Supreme Court from considering that question.

Gun Control Showdown At The Supreme Court

Keep you fingers crossed. Dick Heller (of DC v Heller fame) opines that NYSRPA has a winning case. If retired Justice Kennedy was the only concern, I might be more optimistic, but Chief Justice Roberts seems to be the new ‘squish’. This case should provide some clarity about him, as well as Gorsuch & Kavanaugh.

That New York City is openly hostile to gun rights is not news.  Relief may finally be coming to the citizens of the five boroughs, however – and the residents of other towns ruled by anti-gun zealots – via the Supreme Court. On Monday Dec. 2, the high court hears NY State Rifle & Pistol v. City of New York, a challenge to restrictions the Big Apple places on the few citizens lucky enough to be permitted to keep a firearm in the city. This is the first big gun-control case in over nine years at the Supreme Court and gun-rights advocates are hoping the additions of Justices Gorsuch and Kavanaugh yield a favorable result.

A Tale Of Two Cities

If you want to own a legal handgun in NYC, you must first be granted a license. The two basic types are carry licenses and premises licenses. A carry license gives the holder permission to own and carry a concealed firearm on their person, wherever they go – but you can’t get a carry license. Well, you can if you’re a celebrity, a friend of or donor to the mayor or a police honcho, but that’s about it. It was always one of those things everybody knew but it was not exposed to scrutiny – until January of this year. As reported by local TV journalist Hazel Sanchez, former NYPD Lt. Paul Dean, a commander in the gun licensing unit, claimed:

“[H]igh-profile politicians, entrepreneurs, and even an actor with a prior felony conviction skated past requirements because of their generous donations to the Police Athletic League, New York City Police Foundation.”

Dean pleaded guilty to accepting bribes in exchange for gun licenses. If you’re not a celeb and you’re short on bribe money, you might be able to get a premises license, though. That’s if you’ve already paid the application fees of over $400 and passed the city’s arbitrary review. The case at the Supreme Court is based on the premises license and the fantastic restrictions placed on gun owners.

You Can’t Take It With You

If you have a premises license, you were previously permitted to keep the handgun only at your home or one of the seven approved gun ranges inside the city – or transport the weapon to or from the range, locked and unloaded. If you live in New York City and have a cabin upstate, you couldn’t legally take the firearm with you when you traveled there. You couldn’t legally take it one foot outside the city limits. As the Supreme Court summarized in its grant to hear the case:

“The City thus bans its residents from transporting a handgun to any place outside city limits – even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.”

The restrictions in the law were so bad that not even the most strident anti-gunners thought they could pass constitutional muster. As Amy Howe of SCOTUSblog put it, “the only real question seemed to be whether the justices would issue a narrow ruling that only addressed the constitutionality of the city’s ban, or whether they might instead say more about the broader right to have a gun outside the home.” The prospect of these restrictions leading to broad recognition of gun possession rights outside the home terrified the gun grabbers – and so they rushed to stop the case the only way they knew how: They changed the law.

Going For Moot

The Supreme Court announced in January that it would add the case to its fall term (the current term). By early April, the NYPD announced the rule would change, saying, “The NYPD plans to loosen its rules around gun transportation to allow licensed owners to carry firearms to a second home or a business – instead of restricting them to shooting ranges.” That change set off another battle at the court – the battle by gun rights advocates to keep the case on the docket. After changing the law, the city petitioned the Supreme Court to drop the case, arguing that since a new rule was in effect, the case was moot and the court need not hear it.

Pro-gun advocates were not willing to go along quietly with the change, however. They have been desperate themselves for the court to take a case concerning gun rights outside the home. The Supreme Court last ruled on a gun-control case in 2010’s McDonald v. Chicago, which incorporated the Second Amendment’s protections recognized in the landmark Heller decision against state governments. That’s because it has refused to take any cases, not that none have been brought. After his fellow justices decided not to hear a challenge to California’s new gun laws last year, Justice Clarence Thomas wrote in dissent, chastising his colleagues:

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Progressive Senators Threaten The Supreme Court

In an attempt to avoid a new ruling favorable to gun owners, progressives in Congress threatened the Court, in the persons of Democrat Senators Sheldon Whitehouse (RI), Mazie Hirono (HI), Richard Blumenthal (CT), Richard Durbin (IL), and New York’s own Kirsten Gillibrand. The Senators, bar Gillibrand, are all members of the Judiciary Committee, and all signed an 18-page screed as brief to threaten the justices’ power through court-packing. The piece attacked Kavanaugh’s nomination, the groups that supported it, and conservative legal groups generally. The conclusion, however, was nothing short of threatening:

“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

Perhaps the Supreme Court will rule in an entirely different direction. It took the case to ask if the law “is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.” The court may rule without a new line drawn in Second Amendment jurisprudence or it may find that the case is moot after all and not even issue a ruling. Justice Kavanaugh’s nomination was widely championed by the NRA, as the progressive Congress members’ brief discusses at length. Will his replacement of Justice Kennedy make the difference and see the court finally address the rights recognized in the Heller and McDonald cases? We will find out by summer, when the ruling is issued

Symposium: Supreme Court should address lower court nullification of the Second Amendment

David B. Kopel is Research Director at the Independence Institute and an Adjunct Professor at University of Denver, Sturm College of Law. Randy Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown Law. Kopel wrote and Barnett  joined an amicus brief filed by Second Amendment professors on behalf of the petitioners in New York State Rifle & Pistol Association Inc. v. City of New York.

In the 2008 decision District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment is an individual right of all Americans, like everything else in the Bill of Rights. Yet many lower courts have refused to accept the Supreme Court’s holding. Among the worst offenders are the U.S. Courts of Appeals for the 2nd and 9th Circuits. In New York State Rifle & Pistol Association v. New York City, the Supreme Court should address the problem of lower court nullification of the Second Amendment.

The case involves New York City’s ban preventing licensed handgun owners who live in the city from taking their handgun outside the city. Under the regulation, licensed owners could not take their handgun to a second home, or anywhere else. They could not use their New York City handgun at a target range in New Jersey or a safety training class in Westchester County.

The only places for a New York City resident to practice gun safety were seven target ranges within the city, whose population is 8.6 million. These small urban ranges cannot match what is available elsewhere. For example, while small ranges allow shooting straight ahead at a short distance, facilities with more space can teach students how to shoot while moving, and how to defend against attackers who are not directly in front of them. By preventing better training, the NYC travel ban gravely endangered the lives of law-abiding handgun owners.

When the NYC travel ban was challenged, the 2nd Circuit stated that the ban probably did not even implicate the Second Amendment. According to the appeals court, the travel ban was such a trivial inconvenience that judicial review of the law was probably unnecessary.

The 2nd Circuit is not the only court to pretend that obvious restrictions on the Second Amendment have nothing to do with the Second Amendment. The Supreme Court in Heller specifically instructed lower courts not to use the “rational basis” test in Second Amendment cases. Under the rational basis test, the most lenient standard of review in constitutional challenges to government actions, laws are almost automatically upheld. In the 2017 case Texeira v. Alameda, the 9th Circuit used the rational basis test to validate a California county’s ban on all new gun stores.

Another problem in some lower courts is willful cluelessness about the actual exercise of Second Amendment rights. In this case, the 2nd Circuit brushed off the travel ban by stating that city residents who venture outside the city can just rent a handgun.

Actually, many ranges do not rent guns. More importantly, forced rentals contradict gun safety and good training. As firearms-safety instructors emphasize, a person who might have to use a gun for self-defense should train with that particular gun. In the crisis of a violent attack, the defender often relies on muscle memory. This requires using the particular firearm with which the defender has become familiar via practice.

Even within a given make and model, handguns vary in operation. Just as 10 cars of the same model and year will all drive and handle a little differently, handguns vary too. One reason is small variations in the sizes of parts. Another reason is that final assembly is done by hand, with the assembly person manually adjusting internal settings, such as trigger pressure. As guns are used, they differ even more, due to variances in wear, replacement or upgrading of parts, and so on. Thus, one gun may reliably feed a particular brand of ammunition, and another gun may not. The only way to know how one’s gun will perform is to practice with that gun.

For example, “trigger break” is the exact point in trigger movement when the trigger initiates the firing of the ammunition. By muscle memory, a proficient user knows this exact point for her gun.

The “reset point” is where the trigger returns after the gun has fired. When releasing the trigger, the proficient user should move her finger exactly far enough forward to let the trigger reset—and no further. Then, the user is ready to pull the trigger again with just the right amount of finger movement.

Learning the trigger break and reset point requires muscle memory, built through practice with a particular gun. Practice with one’s own gun improves control, safety and accuracy.

According to the 2nd Circuit, preventing practice with one’s own firearm is such a minor inconvenience that the Second Amendment is not even at issue. For the sake of argument, the 2nd Circuit did imagine that the travel ban should be reviewed under “heightened scrutiny.” Heightened scrutiny requires the court to carefully examine the evidence about the burdens and benefits of the challenged law. The burden of proof is on the government.

The weakest form of heightened scrutiny is called “intermediate scrutiny”—an easier standard than “strict scrutiny.” Strict scrutiny was originally created for judicial review of government discrimination based on race; intermediate scrutiny was first used for review of government discrimination based on sex.

The 2nd Circuit says that strict scrutiny never applies to the Second Amendment. Some federal courts elsewhere have said the same. So the 2nd Circuit reviewed the travel ban under intermediate scrutiny.

The Supreme Court’s cases have established detailed rules for applying intermediate scrutiny. Among them: 1. The government must produce substantial evidence. 2. The government must overcome rebuttal evidence. 3. The government must prove that its objective is achieved more effectively through the regulation than through other means. 4. The government must consider substantially less burdensome alternatives. In upholding the travel ban, the 2nd Circuit ignored all these requirements.

According to the Supreme Court in City of Los Angeles v. Alameda Books, the government cannot “get away with shoddy data or reasoning.” And in Edenfield v. Fane, the court emphasized that the government cannot pass intermediate scrutiny with merely an “affidavit … which contains nothing more than a series of conclusory statements.”

What was the evidence in favor of the NYC travel ban? An affidavit with nothing more than a series of conclusory statements. The entire evidence in support of the travel ban was an affidavit from a former gun-licensing official. He speculated that licensed New York City handgun owners transporting unloaded handguns outside the city might perpetrate “road rage.”

The affidavit did not supply a single example of a licensed New York City resident misusing a transported handgun before the 2001 travel ban. To the 2nd Circuit, the retired official’s speculations were all that was needed to uphold the ban.

The problem of lower courts’ relying on flimsy evidence in Second Amendment cases is widespread. When the 3rd Circuit upheld New Jersey’s confiscation of all magazines with over 10 rounds in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, dissenting Judge Stephanos Bibas observed: “[T]he majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.”

Not all lower courts have refused to enforce the Second Amendment. When Chicago outlawed all target ranges open to the public, the U.S. Court of Appeals for the 7th Circuit held the ban unconstitutional. In response, Chicago adopted zoning rules banning indoor target ranges from 98 percent of the city. Further, parents were prohibited from teaching firearms safety to their teenage children at target ranges. The 7th Circuit held these laws unconstitutional too. Similarly, a federal district court in Chicago overturned a ban on all gun stores within city limits.

Decisions by the U.S. Courts of Appeals for the District of Columbia Circuit and 7th Circuit resulted in adoption of fair laws for bearing arms in D.C. and Illinois. In both places, an applicant for a concealed carry permit must pass safety training and a fingerprint-based background check. Applicants may not be denied a permit just because a government official opposes exercise of the right to bear arms.

The lower court nullification has been noticed. Justices Clarence Thomas and Neil Gorsuch and the late Antonin Scalia dissented from several cert denials in which lower courts upheld especially egregious violations of the Second Amendment. For example, a San Francisco law prohibits residents from having a firearm available for immediate self-defense in a bedside table while sleeping—or even while changing clothes. A Chicago suburb outlaws many common firearms, including the most widely owned rifle in American history.

Scalia and Thomas denounced the opinion upholding the Chicago suburb’s gun ban as an example of widespread “noncompliance with our Second Amendment precedents.” Regarding the Supreme Court’s refusal to consider the San Francisco ordinance, Thomas and Scalia observed: “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” In short, as Thomas stated in his dissent from the denial of certioriari in Silvester v. Becerra, “the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment.”

The problem is well known. It is time for the Supreme Court of the United States to defend its preeminent role in constitutional interpretation and to address lower-court nullification of the Second Amendment.