Category: Courts

Bid to block Illinois’ new assault weapons ban now before federal appeals court

CHICAGO – The federal appeals court in Chicago has its first opportunity to weigh in on Illinois’ controversial assault weapons ban, as challenges to the law continue to advance.

Naperville gunshop owner Robert Bevis asked the 7th U.S. Circuit Court of Appeals for an injunction against the law late Tuesday. He wants the order in place while he appeals a recent ruling from U.S. District Judge Virginia Kendall who found the law to be “constitutionally sound.”

Bevis asked that the injunction, if granted, apply to everyone affected by the state law.

The case appears to be the first to challenge the ban in the federal appellate court. The 7th Circuit now has the opportunity to block the measure signed by Gov. JB Pritzker on Jan. 10 — which immediately banned the sale of military-style weapons and high-capacity magazines — or to side with Kendall.

The court could also resolve Bevis’ request on other grounds.

An appellate court has upheld a Temporary Restraining Order (TRO) against Illinois’ assault weapons ban, and expanded it to cover the entire state.

Kendall ruled last month that “because assault weapons are particularly dangerous weapons … their regulation accords with history and tradition.” But Bevis’ lawyers have accused Kendall of error. Under previous Supreme Court rulings, they said weapons must be found to be “dangerous and unusual” in order to be banned.

“An arm that is commonly possessed by law-abiding citizens for lawful purposes is, by definition, not unusual,” they wrote in their court filing Tuesday. “Thus, such an arm cannot be both dangerous and unusual and therefore it cannot be subjected to a categorical ban.”

They told the 7th Circuit the matter “is not a close case.”

McHenry County’s State’s Attorney Patrick Kenneally requested an emergency restraining order to block the law from taking effect in McHenry County.

It’s unclear how quickly the appeals court might rule. But Bevis’ lawyers insist his business has suffered since the assault weapons ban went into effect. They wrote that 85% of the firearms sold by his business, Law Weapons & Supply, are banned by the state law and a similar Naperville ordinance.

“Cash reserves have been depleted, and as a result, [Law Weapons & Supply] has had to lay off employees and ask Bevis’ family to work without pay,” Bevis’ lawyers wrote. “Bevis has extended his personal credit, missed personal payments like home and car payments, maxed his credit limits, and taken out loans to pay the monthly bills.”

They wrote that Law Weapons & Supply will not be able to abide by its property and equipment leases “if these bans remain in effect any longer.”

“In short, [Law Weapons & Supply] will be put out of business if these laws are enforced,” they wrote.

Bevis’ lawsuit is one of several challenges filed in state and federal courts since Pritzker signed the law. Four federal challenges have been consolidated in southern Illinois’ federal court, where state lawyers recently argued the weapons restricted by the new law aren’t commonly used for self-defense.

“By design and in practice, they exist for offensive infliction of mass casualties,” they argued in a recent brief.

Meanwhile, the Illinois Supreme Court agreed this week to give accelerated consideration to issues that have been raised in state court. The move was prompted by an order last week by a Macon County judge.

That judge followed the lead of earlier Illinois appellate court rulings and found that the assault weapons ban violates the state constitution’s equal protection and special legislation clauses.

Bruen’s “chaos” is a much-needed correction

Ahead of four decisions on California gun laws that are expected to soon be released by U.S. District Judge Roger Benitez, the Los Angeles Times is advancing the narrative that the Supreme Court’s Bruen decision is sowing “chaos” in the courts. But as we discuss on today’s Bearing Arms’ Cam & Co, upending the untenable status quo is a good thing, particular given how the judiciary has abused “interest balancing” tests to regularly uphold infringements on a fundamental right.

Reporter Kevin Rector’s coverage of how the courts have dealt with the Supreme Court’s edict that those interest balancing tests are inappropriate is clearly slanted; not only in the front-page story itself, but he promoted his piece on social media.

Yes, SCOTUS has rejected the interest-balancing tests that many lower courts adopted after the Heller decision in 2008, but as Justice Clarence Thomas made clear in Bruen, that was never the appropriate test when it comes to gun control laws”

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.

What Rector (and the vast majority of the sources he spoke to) object to is the fact that the Court’s explicit instructions to discard those interest-balancing tests in favor of a text, history, and tradition test puts laws like California’s ban on so-called assault weapons on shaky legal ground. No longer can the courts decide that even though a particular gun control law intrudes on the Second Amendment rights of citizens, it’s okay because the government has an interest in promoting public safety. Now those laws must be justified through the historical record; something that is going to be difficult given that the gun control movement is a fairly modern creation.

“This new ‘history and tradition’ test that the Supreme Court established last June is wreaking havoc on America’s gun laws,” said Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law. “Instead of having a reasonable debate over whether a ban on assault weapons is good policy or not, we have to debate whether a ban on assault weapons has historical antecedents.”

With all due respect to Winkler, the courts aren’t the right venue for a “reasonable debate” on the policy of a gun ban. Legislators can and will continue to debate banning “assault weapons”, but it’s up to the judiciary to determine if those laws are constitutionally sound. And as much as the law professor complains that Bruen is wreaking havoc on gun laws, I’d argue that when appellate courts like the Ninth Circuit refuse to ever find a gun control law unconstitutional the judiciary is wreaking havoc on a fundamental civil right.

The Bruen decision will not lead to every gun control law being overturned, as disappointing as that might be for Second Amendment advocates. Heck, the Court said that “shall issue” concealed carry regimes are presumptively constitutional, and the justices pointed to places like schools, legislative assemblies, and polling places as locations that could likely be labeled “sensitive places” without much legal trouble. But the Court’s opinion should also take an “assault weapons” ban and many other modern inventions of the gun control lobby off the table, at least if judges are willing to abide by what SCOTUS had to say.

As we’ve seen in places like Oregon, though, some judges are still finding new and creative ways to uphold gun control laws by stretching the boundaries of an historical analogue beyond credulity. Bruen may have put the lower courts on notice, but as valuable a course correction on Second Amendment jurisprudence as it might be, it can’t and won’t be the last word for the Court on our right to keep and bear arms.

Federal judge rules Missouri state gun law is unconstitutional
The Justice Department filed a lawsuit in February 2022 over the state law that declared “invalid” several federal gun regulations that don’t have an equivalent statute in Missouri.

WASHINGTON — A Missouri state law that declared several federal gun laws “invalid” is unconstitutional, a U.S. federal judge ruled on Tuesday, handing the U.S. Justice Department a victory in its bid to get the law tossed out.

At issue was a measure Republican Governor Mike Parson signed into law in 2021 that declared that certain federal gun laws infringed on the rights of individuals to keep and bear arms under the U.S. Constitution’s Second Amendment.

U.S. District Judge Brian Wimes in Jefferson City, Missouri, said the state’s Second Amendment Preservation Act (SAPA) violates the U.S. Constitution’s Supremacy Clause, which holds that federal laws take priority over conflicting state laws.

Wimes, an appointee of former President Barack Obama, in a siding with Democratic President Joe Biden’s administration called the practical effects of the Republican-led state’s law “counterintuitive to its stated purpose.”

“While purporting to protect citizens, SAPA exposes citizens to greater harm by interfering with the federal government’s ability to enforce lawfully enacted firearms regulations designed by Congress for the purpose of protecting citizens,” he wrote.

Missouri Attorney General Andrew Bailey, a Republican, in a statement promised an appeal, saying he was committed to “defending Missourians’ fundamental right to bear arms.”

“If the state legislature wants to expand upon the foundational rights codified in the Second Amendment, they have the authority to do that,” he said.

The Justice Department did not immediately respond to requests for comment.

Under the Missouri law, also known as H.B. 85, state or local law enforcement agencies could face a $50,000 fine if they knowingly enforced federal laws that the state measure purportedly nullified.

In a lawsuit filed in February 2022, the Justice Department argued the law had caused many state and local law enforcement agencies to stop voluntarily assisting enforcing federal gun laws or even providing investigative assistance.

The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.
Cockrum v. State of Texas 1859

It’s only ‘radical’ and causes chaos for the courts who judges don’t really like the idea that securing individual rights is what government is actually all about (see our Declaration of Independence) and hate that a higher court has told them to get back in line.

The Supreme Court’s Radical Second Amendment Jurisprudence is Sowing Chaos in the Lower Courts

In New York State Pistol & Rifle Ass’n v. Bruen, decided last June, the Supreme Court issued one of the most unusual and dangerous opinions in American history. Clarence Thomas’ majority opinion instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted safety interests in passing gun control laws. Assuming that a person’s conduct is arguably covered by the Second Amendment’s text, the Justices said, the government can only prevail if it demonstrates that similar laws were enacted in the past.

According to Second Amendment scholar Jake Charles in an excellent new article, since Bruen was decided last June, there have been over 100 state and federal cases challenging gun reform laws. These courts “have received Bruen’s message to supercharge the Second Amendment…. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent.”

The Court’s exclusive focus on history and tradition in Bruen is a radical departure from how the Court has traditionally decided constitutional law cases. Prior to Bruen, the Justices examined the strength and importance of a constitutional right and compared that to the interests put forward by the government to justify the restriction of that right.

Continue reading “”

Upholding her reputation as the dumbest SCOTUS judge.
That’s why she’s the worst justice. She decides who “should” win, who is most “deserving”, instead of what the law says.

There Is No ‘Expert’ Clause in the U.S. Constitution

CNN’s Joan Biskupic writes up yesterday’s oral arguments from the two student loan cases that are currently before the Supreme Court:

Prelogar’s arguments were bolstered by the three liberals among the nine. Sonia Sotomayor, the senior justice on the left, warned that judges would seize greater power if agency authority to carry out acts of Congress were diminished.

Addressing Nebraska state Solicitor General James Campbell, who argued against the Biden administration, Sotomayor said, “What you’re saying is now we’re going to give judges the right to decide how much aid to give them. Instead of the person with the expertise and the experience, the secretary of education, who’s been dealing with educational issues and the problems surrounding student loans, we’re going to take it upon ourselves, instead of leaving that decision in the hands of the person who has experience with these questions.”

This is a nonsense argument from Sotomayor. First off, the question before the Court is not “how much aid” to give to students. The question before the Court is whether the statute it is examining — the 2003 HEROES Act — confers upon the executive branch the power to do what it’s trying to do. If it does, it does. If it doesn’t, it doesn’t. The amount of aid doesn’t enter into that calculation. Neither does the level of “expertise and experience” exhibited by the incumbent Secretary of Education. That Secretary could have the most sparkling mind in American history, or he could be a total moron, and, in both cases, the issue before the Court would be same: “Does he have the power to do it?” There is no provision within the United States Constitution that accords unlimited power to bureaucrats simply because some people consider them to be well-credentialed.

Continue reading “”

The Attorney General had until the 27th to submit a response. He didn’t. Why? who knows, but that led to the 5th Circuit issuing this mandate for their ruling to take effect.

Fifth Circuit Finalizes Ruling In Favor of Plaintiff in Cargill v. Garland, Legalizes Bump Stocks in Three States

In January the Fifth Circuit Court of Appeals ruled that the ATF’s Trump-mandated bump stock ban was unconstitutional. Today, in a 13-3 ruling, the Court of Appeals finalized its ruling, mandating that the case — Cargill v. Garland — be remanded to the lower court to reverse its decision [that upheld the ban] and enter a judgement in favor of the plaintiff, Michael Cargill.

As the court majority wrote . . .

Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the Final Rule is good public policy. We express no opinion on those arguments because it is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it.
In defining the term machinegun, Congress referred to the mechanism by which the gun’s trigger causes bullets to be fired. Policy judgments aside, we are bound to apply that mechanical definition. And applying that definition to a semi-automatic rifle equipped with a non-mechanical bump stock, we conclude that such a weapon is not a machinegun for purposes of the Gun Control Act and National Firearms Act.
Chevron deference likely has no role here either because the Government waived it or because it does not apply to the Government’s interpretation of a statute imposing criminal penalties. Finally, even if the statute were ambiguous—which it is not—the rule of lenity would require that we interpret the statute in Cargill’s favor. As Justice Holmes framed it years ago, “it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle, 283 U.S. at 27. We cannot say that the National Firearms Act and Gun Control Act give that fair warning that possession of a non-mechanical bump stock is a crime.
The Final Rule promulgated by the ATF violates the APA. We therefore REVERSE the judgment of the district court and REMAND with instructions to enter judgment for Cargill.

And with that, the 5th Circuit Court of Appeals has now legalized bump stocks in Texas, Louisiana and Mississippi. You can read the ruling here.

Three other circuits have upheld the ATF’s ban. The Fifth Circuit’s order officially creates a Circuit Court split, setting up an almost certain review by the Supreme Court which could go much farther than just bump stocks, possibly limiting the extent to which regulatory agencies and the administrative state are free to “interpret,” alter, and create laws. That, of course, is actually Congress’s job, if you believe what the Constitution says.

Continue reading “”

New York’s Message to Gun Owners: You Can Have a Carry Permit. Good Luck Using It.

“New York’s Gun Laws Sow Confusion As Nation Rethinks Regulation,” says the headline over this morning’s lead story in The New York Times. But after implicitly (and correctly) blaming state legislators for the “confusion,” the Times identifies a different culprit in the subhead: the Supreme Court’s June 23 decision in New York State Rifle & Pistol Association v. Bruen, which “overturn[ed] century-old New York gun regulations” and “produced scores of new lawsuits,” leaving “jurists and citizens” to “sort out what’s legal.”

In Bruen, the Court held that the right to bear arms guaranteed by the Second Amendment precludes states from requiring that residents “demonstrate a special need for self-protection distinguishable from that of the general community” before they are allowed to carry handguns outside their homes. The New York State Legislature responded with a law that eliminated the state’s “proper cause” requirement for carry permits but simultaneously imposed new restrictions on public possession of firearms.

“Anticipating more gun-toting,” Times reporter Jonah E. Bromwich says, the legislature “made certain areas off-limits to firearms.” That gloss makes the new restrictions sound prudent and modest. In reality, they are so sweeping that they create a risk of felony charges for anyone who tries to exercise the right recognized in Bruen while engaging in quotidian activities. The Times barely hints at the breadth of New York’s location-specific gun bans, which is crucial in understanding why federal judges have deemed many of them unconstitutional.

Next month, the U.S. Court of Appeals for the 2nd Circuit will hear several of those cases. The plaintiffs argue that New York has defied Bruen by making it very difficult for permit holders to legally carry guns for self-protection. It is impossible to assess that claim without recognizing the vast territory covered by what the Times describes as “certain areas” that are “off-limits to firearms.”

Continue reading “”

Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen

New York Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in over a decade since its decision in District Columbia v. Heller. It was one of the most highly anticipated case of the 2021-22 Term and serves as the first indication of how the addition of Justices Gorsuch, Kavanaugh, and Barrett might alter the trajectory of the Court’s Second Amendment case law.

If Heller could have been characterized as a “minimalist” opinion at the time of its decision and McDonald v. Chicago as an almost overdetermined extension of Heller by its application to the states through incorporation, Bruen tends towards maximalism, dramatically expanding the scope of the Second Amendment and threatening a variety of gun control laws that lower courts had upheld while the Court stayed its hand. Given that there is now a solid majority (if not a super-majority) willing to support a robust Second Amendment, whatever Bruen’s ultimate scope, it is unlikely that the Court will be as quiescent as it was in the decade following Heller.

This essay offers some preliminary observations about both the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment had been suspect—assign the opinion to Justice Thomas?

Takes two and three concern Justice Thomas’s substitution of text, history, and tradition for tiered-scrutiny; and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered-scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered-scrutiny in favor of a textual, historical, and traditional inquiry. In order to make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who have to rehear cases involving dozens of issues delineating the scope of the Second Amendment settled over the last fifteen years since Heller.

Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heighted by Bruen’s text-history-tradition only approach.

Finally, in keep with our longstanding interest in lower court reception of destabilizing, possibly transformative Supreme Court opinions, we look at the reaction of the lower courts, post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea-change it portends and are attempting to implement it in good faith. Although as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious; and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen. A brief conclusion follows.

SSRN-id4372216 retcon heller

Gun industry marketing may end up before SCOTUS

The Protection of Lawful Commerce of Arms act is a bit unusual. It’s rare that Congress would enact protection for an entire industry to prevent unwarranted lawsuits from bankrupting it. However, the gun industry actually needed those protections.

Firearm manufacturers were facing a bevy of lawsuits from pretty much anyone looking for someone to blame. They were blamed for the actions of third parties, people who quite often never purchased the gun legally in the first place, and faced stiff penalties in court.

So, Congress acted.

Now, though, many anti-gun activists want to overturn gun industry protections while others are trying to find ways around them, as we’ve seen in several states.

It seems some are speculating about those latest efforts at bypassing the PLCAA ending up before the Supreme Court.

Buffalo’s lawsuit, filed in December, is one of the first cases of its kind under New York’s 2021 public nuisance gun law, which allows the state and people affected by gun violence to sue gun manufacturers, sellers and distributors for endangering the public’s health and safety — or creating a “public nuisance.”

The new statute and similar laws recently enacted in other states mark the latest round in a long-running battle between gun-control advocates and firearm manufacturers over a 2005 federal law that protects the industry from liability.

And this time, the issue could land before the Supreme Court, according to legal experts, as several Democratic-led states take a more aggressive approach to restricting firearms even after the court acted to expand gun rights last year by striking down a decades-old New York law that limited the ability to carry a handgun outside the home.

“For more than a decade, the court turned away basically every Second Amendment petition that it received,” said Joseph Blocher, a Second Amendment law professor at Duke University. But after last year’s ruling, “it could be that we’re going to be looking at multiple gun cases at the Supreme Court.” …

The National Shooting Sports Foundation (NSSF), the gun industry’s trade association, is leading the challenge, arguing the new laws are unconstitutional because they are too vague, regulate transactions that take place outside of the states and are preempted by the 2005 law.

The laws are a “transparent and obvious attempt to circumvent the will of Congress,” said NSSF senior vice president Lawrence Keane.

A New Jersey federal judge sided with the group last month when he blocked the state’s law from being enforced, noting that it “is in direct conflict” with federal law. New Jersey has appealed the ruling.

And, at least in my mind, that’s only part of the issue here.

See, these “public nuisance” laws try to target the gun industry and its marketing. However, on top of the law being vague as to what constitutes “improper” marketing, there’s no requirement to show evidence that those who misuse the guns are even remotely familiar with the marketing in question.

In other words, gun companies simply wouldn’t be able to market at all if these states get their way about it.

I’m sorry, but nothing about that seems remotely right.

As a nation, we don’t punish people or companies for the actions of third parties without good cause. In the wake of the George Floyd riots, we didn’t seek to punish the news agencies that reported on Floyd’s death. Why would we? They did nothing wrong in reporting the news.

Yet similarly, the gun industry has to market new products. Otherwise, they cannot continue to exist.

You cannot blame them for what some maniac does with that firearm when nothing in their marketing remotely condones such an action.

So yes, this may well end up before the Supreme Court, and I suspect the gun industry hopes it does.

We’ve seen what the current makeup of the Court is and what it can do in support of the Second Amendment. I suspect these new laws seeking to undermine the PLCAA are going to be gutted if not completely overturned.

And that is very good news.

RESPONSE BRIEF FILED IN MILLER v. BONTA CALIF. ‘ASSAULT WEAPON’ BAN CASE

BELLEVUE, WA – The Second Amendment Foundation and its partners in the case of Miller v. Bonta, challenging California’s ban on so-called “assault weapons,” have filed a responding brief in the case, countering defense arguments and strategies already rejected by federal courts and the U.S. Supreme Court.

“Our reply takes the state to task for going directly against the instructions of the federal court,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The state spent its entire 25-page brief trying to re-litigate the case, essentially arguing for ‘interest balancing’ by the court, which the Supreme Court nixed last year in its landmark Bruen ruling. The only logical conclusion is that the State of California is stalling, trying to delay the inevitable ruling that the ban on semiautomatic rifles is unconstitutional.”

SAF is joined by the San Diego County Gun Owners Political Action Committee, California Gun Rights Foundation, Firearms Policy Coalition and four private citizens, including James Miller, for whom the case is named. They are represented by attorneys George M. Lee at Seiler Epstein, LLP and John W. Dillon at the Dillon Law Group, APC. The case is now before the U.S. District Court for the Southern District of California.

Plaintiffs note in their response brief, “The State’s attempt to ignore this Court’s instructions and introduce last-minute further “expert testimony” offered in other cases on the ‘dangerous and unusual weapons’ question—which has already been settled by this Court—is also a naked appeal to interest balancing and is irrelevant to the question of historical analogues requested by this Court (and required under Bruen). At this point, Defendants are simply padding the record with old (and misplaced) arguments and extraneous declarations.”

“It seems clear to us the state is trying to revive arguments they cannot use because they have no historical evidence to support their gun ban,” Gottlieb observed. “The court shouldn’t tolerate such legal shenanigans, which ultimately attempt to reframe this case into a policy matter, which boils down to whether average citizens ‘need’ a semiautomatic firearm.

“The Supreme Court already settled this,” he continued. “It’s not up to the government to make that choice, it’s up to the American people, and their rights are not subject to public opinion polls or the whims of anti-gun politicians in Sacramento.”

ICYMI Federal Judge Renée Marie Bumb Rules Against NJ, Upholds 2A, Cases Consolidated

U.S.A. – In response to the Bruen decision, a few states have decided to defy the Supreme Court.

The lawsuit, KOONS v. REYNOLDS, was filed on December 22, 2022. The judge in the case is Renee Marie Bumb.

Another lawsuit, Siegel v. Platkin, was also filed on December 22, 2022 a few hours earlier. The issues in Siegel v. Platkin are very similar to Koons v. Reynolds, but cover more issues and sensitive places.  The defendants (essentially, the State of New Jersey) filed a motion to consolidate the cases on December 23, 2022.

On January 9, 2023, Judge Bumb granted a motion for a temporary restraining order (TRO) to prevent enforcement of the most egregious five sections of the New Jersey law.

From the decision:

CONCLUSION

Plaintiffs have demonstrated a probability of success on the merits of their Second Amendment challenge to the relevant provisions of Chapter 131 Section 7(a), which criminalizes carrying handguns in certain “sensitive places,” subparts 12 (public libraries or museums), 15 (bars, restaurants, and where alcohol is served), 17 (entertainment facilities), and 24 (private property), as well as section 7(b)’s ban on functional firearms in vehicles. The State may regulate conduct squarely protected by the Second Amendment only if supported by a historical tradition of firearm regulation.

Here, Plaintiffs have shown that Defendants will not be able to demonstrate a history of firearm regulation to support any of the challenged provisions. The deprivation of Plaintiffs’ Second Amendment rights, as the holders of valid permits from the State to conceal carry handguns, constitutes irreparable injury, and neither the State nor the public has an interest in enforcing unconstitutional laws. Accordingly, good cause exists,and the Court will grant the motion for temporary restraints. An accompanying order of today’s date shall issue.

The lawyer for the Siegel lawsuit, Daniel L. Schmutter, argued the Siegel case should be consolidated with the Koons case, because considerable work and research had  already done in Koons. There was no need to duplicate it. The State of New Jersey wanted the Koons case to be consolidated with the Siegel case under Judge Ann Marie Donio. Judge Donio  agreed with Schmutter to consolidate the Siegel matter under Judge Bumb with the Koons matter. She issued a decision to consolidate Siegel with Koons moving foreward. From the January 13 decision to consolidate cases:

For all of these reasons, the defendants’ motion to consolidate is granted in part and denied in part. The Court will consolidate the Siegel matter into the Koons matter, but the Siegel matter will consolidate — I am sorry. I think I repeated that. The Court will consolidate the Siegel and Koons matter but — so this is the denied part — the Siegel matter will be consolidated into the Koons matter. To the extent claims are still outstanding with respect to the temporary restraints, those are hereby reserved for further proceedings following the reassignment of this matter to Judge Bumb.

Another hearing on January 26, 2023 is scheduled before Judge Renee Marie Bumb.

New Jersey is in the United States Court of Appeals for the Third Circuit. New York is in the United States Court of Appeals for the Second Circuit.  The Second Circuit has reversed lower courts decision to grant a temporary restraining order against enforcement of the New York law.  As of January 24, there has not been an appeal to repeal the temporary restraining order in the Koons matter to the Third Circuit.

Opinion:

These cases are moving through the court system relatively quickly. This correspondent believes the reason is the clear guidance given by Justice Clarence Thomas in his decision in Bruen, on how the lower courts are to treat the Second Amendment.  The New York and New Jersey lawsuits are far from the only cases where the Bruen decision is being cited as decisive. Cases all over the country are seeing clear guidance in Bruen, as opposed to the muddy obfuscation of a “two step” “interest balancing” process erected in the appeals courts in response to Heller, McDonald, and Caetano.

Judge Kozinski’s Full Dissent

KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history—Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few—were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.

Two dozen AGs sue Biden’s ATF for taxing, registering pistol braces

(The Center Square) – Missouri Attorney General Andrew Bailey joined 24 other attorneys general in suing President Biden’s administration for implementing a rule outlawing pistol braces.

The regulation will “result in the destruction or forfeiture of over 750,000 firearms and will cost the private sector somewhere between $2 and $5 billion,” according to the filing.

“As Attorney General, I will defend the Constitution, which includes holding the Biden Administration accountable for blatantly violating the Second Amendment,” Bailey said in a statement announcing the lawsuit. “I have long held that the Constitution was meant to be a floor, not a ceiling, and the Second Amendment is the amendment that makes all of the others possible.”

The complaint for declaratory and injunctive relief was filed in the U.S. District Court in North Dakota. The document includes information from a patent for a “Pistol Stabilizing Brace,” used to secure a pistol to a shooter’s forearm to stabilize firing. “Through this design, braces are orthotic devices that allow users to more safely and accurately fire handguns,” the document states. Braces are often used by older people and those with limited mobility and prevent recoil and help with accuracy.

Continue reading “”

Gun Owners of America Join Forces With Ken Paxton To Sue ATF Over Gun Brace Regulation.

Gun Owners of America and Texas Attorney General Ken Paxton join forces to sue the Biden Administration.

More lawsuits are pouring in against the Biden administration’s recent decision to redefine firearms with pistol braces as short-barrelled rifles (SBR) under the National Firearms Act (NFA), with Texas Attorney General Ken Paxton and Gun Owners of America (GOA) filing a joint lawsuit seeking to block the rule.

The lawsuit, State of Texas v. ATF, was filed in the Federal Southern District Court of Texas on Thursday, joining two other lawsuits filed in federal district courts in Texas. Those include a challenge filed by attorneys with the Wisconsin Institute for Law and Liberty in the Northern District, and a challenge filed in the Eastern District by the Texas Public Policy Foundation (TPPF).

GOA called their lawsuit “the most comprehensive” among those filed, writing, “Our complaint makes clear that the agency’s rule violates the Second Amendment ‘text, history and tradition’ standard set forth by the Supreme Court in its recent Bruen case.” GOA also said their case argues the rule violates several other constitutional provisions, including being an “invalid” exercise of taxing authority.

Paxton also released a statement on the lawsuit, saying he is hopeful they prevail in blocking the rule.

“This is yet another attempt by the Biden Administration to create a workaround to the U.S. Constitution and expand gun registration in America,” Paxton said in the release. “There is absolutely no legal basis for ATF’s haphazard decision to try to change the long-standing classification for stabilizing braces, force registration on Americans, and then throw them in jail for ten years if they don’t quickly comply. This rule is dangerous and unconstitutional, and I’m hopeful that this lawsuit will ensure that it is never allowed to take effect.”

Continue reading “”

BLUF
The “collective right” myth was killed in 2008. It was never really alive. Like a zombie in the movies, it keeps rearing its ugly head in ill-informed arguments about the Second Amendment.

Second Amendment “Collective Rights” Myth: Born Nov 1905 – Killed June 2008

U.S.A. –-(AmmoLand.com)-— The myth of the Second Amendment as a “collective right” and not an individual right, was born in an obscure Kansas Supreme Court case. It was in 1905, as progressive ideology was becoming ascendant in the United States.

Dave Hardy notes, the myth of the Second Amendment as a “collective right” was born with the case of City of Salina v. Blaksley, on November 11, 1905.

What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of “collective rights” theory.

The “collective rights” theory did not gain traction for decades. In 1931, the Michigan Supreme Court rejected it in People v Brown:

 When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens…is practically extinct and has been superseded by the National Guard and reserve organizations… The historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to “every person” to bear arms for the “defense of himself” as well as of the state.

Then in 1939, the Miller case was set up by  Heartsill Ragon. Ragon was an anti-Second Amendment ideologue and a President Franklin Delano Roosevelt (FDR) ally appointed from Congress to the federal judgeship. The case went to the Supreme Court without opposing counsel or briefs. The Supreme Court refused to rule on whether a sawed-off shotgun (having not been presented with any evidence to the contrary) was an arm protected by the Second Amendment.  The Supreme Court decision stated all men capable of carrying arms were protected by the Second Amendment. No opposing views were presented to the court. From Miller:

 The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

The Miller decision was muddy, but the context was clear. Individuals were protected by the Second Amendment.

But progressive judges started to ignore and misrepresent the Miller decision as showing the Second Amendment only applied to state militias. In 1942, during the height of World War II, two circuit court decisions added to the flimsy foundation of the “collective right” myth.

In United States v Tot, the Third Circuit held the Second Amendment did not apply to criminals, a finding which can be consistent with an individual rights interpretation. The judge, in one-paragraph dicta, pushed the myth the Second Amendment was a “collective right,” incorrectly citing Miller, and a short historical discussion of the English revolution from 1688-1689, found in Aymette (an anomalous Tennessee case from 1840), and a collection of modern writers. The historical analysis was very weak.

In the First Circuit, in Cases v United States, the three progressive judges went so far as to claim Miller did not apply to military weapons because it was what they wanted to find. From Cases:

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

In 1965, Progressive AG, Nicholas Katzenbach, in the Progressive Johnson administration, claimed the “collective right” myth was correct, without evidence. In 1968, President Johnson pushed through the infamous Gun Control Act of the same year.  After 1968, a flurry of circuit court decisions adopted the “collective right” myth, citing Tot, or Cases, or a cursory reference to Miller. The “collective right” myth was now fully formed.

The full-fledged “collective right” myth was in active use and fully formed in the courts after 1968.

It was not adopted at the Supreme Court but was pushed hard in the anti-gun MSM Media.

In the 1970s, the “collective right” myth started being exposed by academics. The myth was so thoroughly debunked in the literature the fact the Second Amendment protected individual rights was referred to as the Standard Model.

In 2004, the Department of Justice rejected the “collective rights” myth and confirmed the Second Amendment protected individual rights.

In the Heller decision published on June 26, 2008, the Supreme Court clearly and precisely points out the “collective rights” myth is false, and shows the reality. The Progressive judges on the Supreme Court generally admitted the rights protected were individual rights, but argued they should be limited by the prefactory clause. From billofrights.com:

Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction.

This was the death of the myth of the “collective right”. It never was reasonable to believe a pre-existing  “right of the people” would refer only to a right of the states to form militias.

The Heller decision killed any logical claim about the “collective rights” myth. It had been created out of very thin, stone soup.

Continue reading “”

Do what?

Oregon Judge Egan Calls 2nd Amendment Protection Laws Racist & Anti-Semitic

Oregon – The Oregon Court of Appeals [lead by Judge James Egan, Chief Judge at Oregon Court of Appeal] has struck down the Second Amendment Sanctuary Ordinance in Columbia County, an ordinance Oregon Firearms Federation has been defending with Gun Owners of America.

And while that is not a particular surprise, what is a surprise is the scathing, incendiary, and frightening “concurring opinion” from Judge Egan.

In the opening page of his opinion, Egan attacks the ordinance and the people who argued for it saying :

“In other words, Intervenors came before this court and referenced UN mandates, which as explained below is a well documented trope meant to invoke white supremacist, antisemitic fear of a takeover of our country by outsiders and minorities who are manipulated by an elite class of supervillians.

On occasion, however, individual members of the court must call out illegitimate quasi-legal arguments and theories for what they are-viz., antisemitic and racist tropes.”

On page 6 of his screed, he titles one section: “The Antisemitic and Racist Origins of the Ordinance.”

He claims that constitutional sheriffs “embrace racist and white nationalist ideologies.”

Continue reading “”