Category: Courts

Just to point out; In New York the ‘Supreme Court’ is the same as what others places call a ‘District Court’  or the first court that sits on a case.

NEW YORK SUPREME COURT JUSTICE DEEMS NEW YORK’S RED FLAG LAWS ARE UNCONSTITUTIONAL

A New York State Supreme Court Justice ruled last week that New York’s Extreme Risk Protection Order laws, often called Red Flag laws are unconstitutional and declined to issue an Extreme Risk Protection Order (ERPO). As we have written in the past, extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime. Yet, New York’s Red Flag laws were expanded in July of 2022. Justice Thomas E. Moran, of the Rochester based Monroe County Supreme Court struck down these laws in a 10 page decision, in a case entitled G.W. v. C.N., 2022 NY Slip Op 22392 (Monroe County Sup. Ct. 2022).

This particular case highlights everything wrong with Red Flag laws. The Petitioner who filed for the Extreme Risk Protection Order was the estranged boy friend of the Respondent who was a licensed gun owner in New York State. He alleged that his ex-girlfriend was a danger to herself and others and obtained a Temporary Extreme Risk Protection Order. Justice Moran pointed out that the Petition cited a variety of statements that the Respondent allegedly made threatening to harm herself with a gun which the Petition falsely claimed were made within 6 months before the Petition was filed but in fact dated back to 2020 and 2021. The Court also pointed out that there was a Family Court case also going on in which The Petitioner had an Order of Protection against him which among other things barred him from the home that they had shared.

Turning to the Constitutionality of the Article 63-A, which lays out New York’s Red Flag laws and procedures, the Court cited the United States Supreme Court decisions in Heller, McDonald and most recently Bruen and applied the Bruen Standard that when the 2nd Amendment’s text covers a person’s conduct, a law which regulates that conduct is presumptively unconstitutional unless the State can demonstrate that the regulation is consistent with the country’s historical tradition of firearms regulations.

The Court also noted that many safeguards of due process that the State had in other analogous situations did not exist in New York’s red flag laws. For example, the Court noted that Red Flag laws and the New York Mental Hygiene Law use the same definition for “likely to result in serious harm”. However, under the New York Mental Hygiene Law, those determinations are made by a Doctor, a person licensed trained and experienced in making such determinations. However, in the case of New York Red Flag laws, most of the authorized Petitioners are not Doctors and are not licensed, trained or experienced in making that determination. Under the Mental Hygiene Law, two doctors are required to make the determination if a person’s liberty is to be taken away for more than 48 hours. No such safeguard is required, not even one doctor is required, before a person loses their gun rights for one year.

Another example cited by the Court is under Article 10 of the Mental Hygiene Law which permits civil detention of certain dangerous sex offenders after they have served their sentence. However, before a Judge can civilly detain someone under this statute, the convicted sex offender is entitled to a Court appointed, free attorney, a state-funded psychiatrist to assist in the defense, a probable cause hearing within 30 days and ultimately a full jury trial before the convicted sex offender’s liberty can be taken away. The Court pointed out that none of those protections exist in New York’s Extreme Risk Protection order Laws.

The Court pointed out that where mental health issues have formed the basis for a loss of fundamental Constitutional rights in the past in New York, the laws have always provided a number of substantive and procedural due process protections none of which are afforded under New York ERPO laws. The Court reiterated a statement from the Supreme Court that Second Amendment rights are not a second class constitutional right.

We should note that this decision, and the Courts reasoning, may form the basis of also striking down many of the Safe Act provisions as they relate to people with past psychiatric issues being prohibited from purchasing or owning guns.

Federal Judge Tosses Lawsuit Opposing Concealed-Carry Ban on D.C. Metro, Finding Challengers Did Not Show ‘Any Threat’ of Prosecution

A federal judge threw out a challenge to D.C.’s concealed pistol law after four D.C.-area residents failed to include a basic part of their case. Although the challengers made multiple arguments about the use of guns in 1600s New England, they included nothing to show that they were — or ever would be — personally affected by the statute. Gregory T. Angelo, Tyler Yzaguirre, and Cameron M. Erickson live in the District of Columbia, and Robert M. Miller lives in Virginia. The four hold licenses to carry firearms, and say that they regularly use public transportation including the D.C. Metro. The plaintiffs waged a federal lawsuit challenging the constitutionality of D.C. Code § 7-2509.07(a)(6), which prohibits the carrying concealed firearms in “sensitive areas,” which include D.C. public transportation, and levies a penalty of fine or imprisonment up to 180 days for violators.

In their 35-page complaint, the four alleged that if it were not for the statute, they would carry their concealed handguns on the Metro and buses for self-defense. They said that because of the statute, they now refrain from doing so because they fear arrest and prosecution.

Taking cues from the Supreme Court’s ruling in Bruen, the challengers pointed to Justice Clarence Thomas’s recently established test that gun laws must be “consistent with this Nation’s historical tradition of firearm regulation.”

The plaintiffs reached back centuries in support of their argument that there is “no basis to label the Metro as a sensitive area,” providing an extensive history of gun law anecdotes going back to the early 1600s in the U.S. and several hundred years prior in Europe. Plaintiffs allowed that, “Public transportation systems did not exist as they do today at the founding of the nation,” but argued that because, “a March 9, 1636 ordinance provided that every person above 18 years of age (except magistrates and elders of the churches) were ordered to ‘come to public assemblies with their muskets,’” that 2022 concealed-carry restrictions conflict with our nation’s founding principles.

The D.C. law, said the plaintiffs, interferes with their Second Amendment right of self-defense and goes far beyond any limits imposed by Supreme Court precedent.

They asked the court to issue either a preliminary or a permanent injunction, restricting enforcement of the statute.

U.S. District Judge Randolph Moss, a Barack Obama appointee, rejected their argument, finding that the plaintiffs couldn’t prove harm. They provided no evidence that the law has been used to prosecute anyone, much less the four of them.

Moss wrote in the court’s 25-page ruling that in order to establish Article III standing, all plaintiffs must demonstrate some kind of “injury in fact.” In other words, it is not enough for a plaintiff to simply disagree with a law — that plaintiff must be actually harmed by the law. That’s where the four plaintiffs fell short.

Moss pointed out that, “No plaintiff in this case has been arrested and prosecuted — or threatened with arrest or prosecution or with the imposition of a civil penalty — for violating the provision of D.C. law at issue here.” Moreover, none of the plaintiffs even alleged that they have either been “singled out” or were somehow “uniquely targeted” for prosecution, said Moss. Without such a showing, the plaintiffs could not sufficiently establish their right to bring the lawsuit.

According to the Moss, the case’s shortcomings went farther. Not only did the plaintiffs fail to show that they were especially at risk of prosecution, but they did not show that anyone was at risk of prosecution.

“Plaintiffs have failed to proffer any evidence relating to any threat or risk of enforcement,” wrote Moss. To underscore the omission, Moss recounted exchanges from oral argument in which the court appeared to prompt the plaintiffs’ lawyer to provide the kind of evidence that could have supported the claim:

Indeed, when asked at oral argument, Plaintiffs’ counsel was unable to identify any case in which an individual licensed to carry a handgun has ever been prosecuted simply for carrying a concealed handgun on a Metrorail train or a Metrobus. Instead, Plaintiffs’ counsel merely speculated that those carrying concealed handguns often pat their sides (to confirm that they have their guns with them) and that, by doing so, they might provide a tell for law enforcement officers and thereby invite arrest.

Moss also called out the attorney for a general response to the specific question of threat of enforcement. Moss said that during colloquy with the court, plaintiffs’ counsel answered that the Metropolitan Police Department “invariably arrests those who violate any of ‘the myriad of firearms regulations’ in the District of Columbia,” but noted that, “Neither statement by counsel, however, is evidence, and the evidence that Plaintiffs have offered says nothing about the risk of criminal or civil enforcement of § 7-2509.07(a)(6).”

Moss denied both requested injunctions.

Counsel for the plaintiffs did not immediately respond to request for comment.

Justice Sotomayor Gives NY 1-Week to Respond to Injunction Against New Gun Law

WASHINGTON, D.C. -(Ammoland.com)- Supreme Court Associate Justice Sonia Sotomayor has given New York State until next Tuesday to respond to Gun Owners of America’s (GOA) emergency petition to SCOTUS to vacate the stay on a District Court’s preliminary injunction against the Concealed Carry Improvement Act (CCIA).

 

Now in court proceedings, all evidence is submitted to the bench for admission into the trial and all parties have access to the evidence. Since this means that, at least the prosecutors had access to the video the jury saw, the continued prosecution, instead of the charges being dismissed, informs us that “justice” has devolved into some other thing.

Concealed Carrying Woman Shoots 2, Killing 1, Acquitted With Video Evidence

DAYTON, OHIO — A woman got to return home for the holidays after shooting two women, killing one, in Dayton, Ohio, last December.

Georgia Jackson, 36, shot these two women Dec. 2021. She was indicted in August on two counts of murder and four counts of felonious assault, according to the Dayton Daily News.

However, it’s apparently been determined that she acted in self-defense. It didn’t hurt that there was video evidence to back Jackson up.

Jackson was reportedly charged following a shooting Dec. 19, 2021 where she shot Ashley Webster, 34 and an unnamed 27-year-old.

The defense reportedly wrote that Webster threatened Jackson and a man with whom she attended a holiday party. Webster then allegedly made four trips to Jackson’s home, during one of which she attempted block Jackson’s vehicle with her own.

She then “attempted to assault the defendant with an object,” the defense wrote according to the Dayton Daily News.

“During this final attempted assault, the defendant, a licensed CCW carrier, invoked her right to self-defense and defense of another.”

Webster died on the scene, while the other woman was non-fatally wounded.

“During this time, the individual responsible for shooting both females called 911, provided her location and was detained,” Dayton police Maj. Jason Hall said according to the Dayton Daily News.

“The initial indications are that the deceased and the suspect were known to each other and had been involved in an ongoing dispute that tragically escalated into gunfire.”

The defense invoked Ohio’s Stand Your Ground law, and Jackson’s charges were dismissed.

“The shooting death of Ashley Webster by the defendant was fully investigated and the police believed this to be a case of murder,” the Montgomery County Prosecutor’s Office stated.

“At trial, the defendant claimed self-defense and was found not guilty by the jury.”

It sounds like her case for self defense is pretty apparent. It’s a shame so much of her time and pains were taken for crimes she didn’t commit.

2A BREAKING NEWS: U.S. Supreme Court ORDERS New York to “EXPLAIN YOURSELF NOW!”

 

BREAKING: Supreme Court Keeps Immigration Rule Title 42 in Place Indefinitely

The Supreme Court stayed a trial judge’s ruling that would have ended Title 42 and has, for the time being, allowed the rule to remain in place. The court issued an unsigned 5-4 opinion that was a victory for the 19 states that had sued the federal government to keep Title 42 in place.

Title 42 is a 1940s-era rule that limits immigration and asylum seekers during a national health crisis. It was originally put in place by Donald Trump in March 2020 and severely restricted the number of people seeking asylum by expelling all but a fraction of those who showed up at the border.

Joe Biden eased the restrictions, but about 65% of all asylum seekers who showed up at the border were still expelled.

The stay says nothing about the lawsuit by GOP states seeking to keep Title 42 in place.

New York Times:

The court said that it would hear arguments in the case in February and that the stay would remain in place until it issued its ruling. The justices said they would only address the question of whether the 19 mainly Republican-led states that had sought the stay could pursue their challenge to the measure.

Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented.

The court’s order was a provisional victory for the 19 states that had sought to keep Title 42 in place, saying it was needed to prevent a surge of border crossings. “The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” lawyers for the states wrote in an emergency application, adding that “daily illegal crossings may more than double.”

“We are deeply disappointed for all the desperate asylum seekers who will continue to suffer because of Title 42, but we will continue fighting to eventually end the policy,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which had been arguing to end Title 42′s use.

Associated Press:

The precise issue before the court is a complicated, largely procedural question of whether the states should be allowed to intervene in the lawsuit, which had pitted advocates for the migrants against the federal government. A similar group of states won a lower court order in a different court district preventing the end of the restrictions after the Centers for Disease Control and Prevention announced in April that it was ending use of the policy.

It will be until at least the summer before we get a definitive decision on whether the rule will stay or go. But there are hundreds of thousands of asylum seekers within a couple of hundred miles of the U.S. border, and pressure will build on Biden to find a way to allow them to enter the country.

This was just round one. Round Two promises to be a knockout for one side or the other.

 

OREGON Wants M114 Background Check Now; Judge Says Wait

U.S.A. –-(AmmoLand.com)- The State of Oregon wants the “completed criminal background check” tenet of Measure 114 to take effect now. Harney County Circuit Judge Robert Raschio put the brakes on again, saying he would decide by Jan. 3 whether to continue blocking that part of the measure, according to KGW News.

The requirement that a gun may not be sold or transferred until a background check is completed replaces the long-standing federal time frame of three days. A sale may be completed if a check is not completed within that 72-hour window. But according to KEZI News, ‘That’s how the gunman in a Charleston, South Carolina, mass shooting in 2015 bought his gun and killed nine people at a church.”

“The state requested that the Judge ignore the thousands of people waiting to take possession of the firearms they have already paid for and eliminate the one safeguard they have to obtain them…The Oregon Department of Justice wants to end this safeguard so they can prevent thousands of people from legally acquiring the firearms they have already purchased.”

He said the three-day provision is considered a “loophole” by proponents of the measure.

“Apparently,” Starrett wrote, “any policy that actually allows law-abiding Oregonians to legally obtain firearms is a ‘loophole.’”

According to Oregon Live, attorney Tony Aiello, Jr.—representing Gun Owners of America, which brought the lawsuit now in Raschio’s court—contended the three-day rule is a “relief valve” inserted in the federal gun law “to make sure a gun buyer isn’t waiting indefinitely for their background check to be completed.”

Special Assistant Attorney General Harry B. Wilson argued for the background check mandate to take effect.

Aiello countered, “This is infringement because … they have the ability to slow-walk background checks or to not do them whatsoever,” KGW noted.

Measure 114 is being challenged not only in state court, but by four federal lawsuits which have brought virtually every major gun rights organization onto the playing field. The Second Amendment Foundation filed two of those lawsuits, one challenging the magazine ban portion of the measure and the other targeting the requirement for training and obtaining a permit-to-purchase before an Oregon citizen can legally buy a firearm.

Then came the National Shooting Sports Foundation with a lawsuit, partnering with the Oregon Sport Shooting Association, a state affiliate of the National Rifle Association.

OFF filed the first federal action in November and a federal judge in Portland decided against issuing any kind of injunction or restraining order.

Starrett, who founded OFF some 30 years ago, said the effort to create an open-ended background check is “a potential bar on the purchase of a gun.”

“As many thousands of Oregonians have learned in recent months, the State Police simply cannot fulfill the duties assigned to them by Oregon law,” he said in the OFF update.

Adding to the drama, Oregon.live noted the Oregon State Police currently have “about 37,000 background checks waiting to be reviewed” so staff has been reassigned to assist with the backlog. The report said, “through Dec. 20, the state police have received about 43,000 requests for background checks.”

Starrett posited that putting background checks on delay, and ultimately denying citizens to buy firearms, has been the “ultimate goal” of Measure 114 backers, who call themselves “Lift Every Voice Orgon (LEVO).” He said there have been cases of qualified buyers “sitting in limbo waiting for the state to do its job and complete the ‘instant’ background check” for, in some cases, years.

Aiello contended some Oregon residents, if Measure 114 takes effect, “will have no guarantee that their background checks will be processed in a timely manner.”

Starrett predicted the fight over whether Measure 1145 is constitutional is going to take a while, and in the meantime, “Some of the people who are being prevented from getting the guns they are legally entitled to, and have paid for, are at great risk because LEVO and the State of Oregon have prevented them from having the means to protect themselves.  Any harm these people suffer is on the hands of…LEVO and the state.”

He asserted LEVO has no legal bills to pay because the state is defending the new law.

Judge Raschio said he would decide by Jan. 3, which could mean he will rule earlier, perhaps sometime during the next week.

BLUF
So let’s be clear about what the Defensive Gun Use Database shows, and what Heritage’s position is: Civilians—just like the law enforcement officers who are exempt from these restrictions—sometimes need to defend themselves with more than 10 rounds of ammunition.

And in those cases where more than 10 rounds are needed, the extra ammunition may mean the difference between life or death.

BOLD-FACED LIE: Gun Control Groups Twist Heritage Foundation Data Out of Recognition in Court Documents

A conglomerate of gun control groups has filed a brief in federal court supporting the District of Columbia in a lawsuit challenging the city’s prohibition on civilian possession of magazines capable of holding more than 10 rounds.

This was not at all surprising.

What was quite perplexing, however, was the gun control groups’ citation of two of my recent monthly articles for The Daily Signal on defensive gun use. The groups claim the two articles “support” the premise that the District’s ban doesn’t negatively affect law-abiding gun owners, because none of the cases I cited “involved the use of anywhere close to 10 rounds of ammunition.”

Worse, the gun control groups spun this as The Heritage Foundation, among others, having “acknowledged that the ability to fire more than 10 rounds of ammunition without reloading is not necessary for defensive purposes.” (The Daily Signal is Heritage’s multimedia news organization.)

These are incredible claims in the most literal sense: They lack any credibility.

At best, the legal brief’s characterization of my monthly articles on defensive gun use is lazy to the point of recklessness and wrongly attributes to my employer, The Heritage Foundation, a policy position that it doesn’t hold. At worst, this constitutes an intentional effort to manipulate a federal court with a blatantly misleading representation of Heritage’s work on defensive gun use.

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SAF SUES NEW JERSEY OVER NEW CONCEALED CARRY LAW

BELLEVUE, WA – The Second Amendment Foundation today filed a federal lawsuit against the State of New Jersey, challenging the state’s new gun control law prohibiting licensed concealed carry in an expanded list of so-called “sensitive places,” and further criminalizes carrying an operable handgun “while in a vehicle.”

Joining SAF are the Firearms Policy Coalition, the Coalition of New Jersey Firearm Owners and the New Jersey Second Amendment Society, along with three private citizens, Nicholas Gaudio, Jeffrey M. Muller and Ronald Koons. Plaintiffs are represented by attorney David D. Jensen, David Jensen PLLC, of Beacon, N.Y.

The lawsuit was filed in U.S. District Court for the District of New Jersey. The case is known as Koons et al v. Reynolds et al.

Named as defendants are Atlantic County Prosecutor William Reynolds, Camden County Prosecutor Grace C. Macaulay, Sussex County Prosecutor Annemarie Taggart, New Jersey Attorney General Matthew J. Platkin and State Police Supt. Patrick Callahan, in their official capacities.

Shortly after New Jersey Gov. Phil Murphy signed the new legislation on Dec. 22, SAF and its partners quickly filed the lawsuit.

“We are asking for a declaratory judgment against certain tenets of the new legislation,” explained SAF founder and Executive Vice President Alan M. Gottlieb. “We are also seeking a preliminary and/or permanent injunction restraining the defendants and their officers, agents and other employees from enforcing the challenged segments of the law.

“The specific sections of law violate the right to bear arms protected by the Second Amendment,” he continued. “There is no established historical tradition that could be used to justify these restrictions. This new legislation literally criminalizes licensed concealed carry just about everywhere, making a mockery of the right to bear arms protected by the Second Amendment.”

“New Jersey’s Legislature and Governor have shown that they do not wish to heed the Supreme Court’s guidance as to the bounds of the right to bear arms in Bruen,” said SAF’s Executive Director Adam Kraut.  “Despite clear directives as to a citizens’ right to bear arms, New Jersey continues to thumb its nose at the constitutional rights of its citizens in the name of ‘safety’. Such disregard for the rights of New Jerseyans will not be tolerated. As such, we are seeking to vindicate the rights of our members and the public in an expeditious manner. It is a shame the elected officials of New Jersey have no respect for the enumerated rights of the People and continue to needlessly waste their state’s tax dollars passing unconstitutional laws which render the common person defenseless.”

Shots filed: New Jersey hit with first lawsuits over new carry laws

When he joined me on Cam & Co earlier this week, Association of New Jersey Rifle and Pistol Clubs executive director Scott Bach promised that a lawsuit challenging the state’s new concealed carry restrictions would be filed before the ink was dry on Gov. Phil Murphy’s signature, and the group has delivered; submitting a complaint to the U.S. District Court in New Jersey on behalf of the organization and seven individual plaintiffs that seeks an injunction blocking enforcement of the law.

In fact, the lawsuit was one of at least two that have been filed in the hours since Murphy put pen to paper. A coalition including the Second Amendment Foundation, Firearms Policy Coalition, the Coalition of New Jersey Firearm Owners, the New Jersey Second Amendment Society, and three individual plaintiffs have filed their own suit in federal court that also seeks injunctive relief against the new laws.

Interestingly, one of the plaintiffs in the SAF/FPC/CNJFO/NJSAS lawsuit was one of the rare individuals who had been able to obtain a carry license under the state’s previous “may issue” regime. As long as the state could allow broad discretion in choosing who could exercise their right to carry, those blessed by the State to do so enjoyed wide latitude. Now that the Supreme Court has instructed the state that a right of the people means just that, however, New Jersey lawmakers have suddenly declared that guys like 72-year old Jeffrey Mueller are a clear and present danger. From page 17 of the complaint, authored by attorney David Jensen:

Plaintiff Muller is one of the very few New Jersey citizens who was able to obtain a permit to a permit prior to Bruen. In January 2010, an out-of-state gang kidnapped Plaintiff Muller and took him to Missouri, where he was able to escape and summons help. Plaintiff Muller was thereafter a key witness in the kidnappers’ prosecution. Notwithstanding this, Plaintiff Muller obtained a permit only after litigating a judge’s denial of his application, which the New Jersey State Police had approved. One of Plaintiff Muller’s attackers remains in prison in New Jersey, and another was released last month (in November 2022).

After Plaintiff Muller obtained his permit to carry in June 2011, and he began carrying a handgun most of the time. The prosecution against Plaintiff Muller’s attackers was ongoing, and he was particularly concerned about protecting himself. In recent years, as time has passed, Plaintiff Muller has carried a gun less than he did during the years following June 2011, but until just now he has continued to carry a handgun on a regular basis.

Among other places, Plaintiff Muller has often carried a handgun while shopping at stores such as ShopRite, Lowe’s and Tractor Supply Company, stopping at gas stations, getting food at delis and restaurants, including restaurants that serve alcohol. Plaintiff Muller has carried a handgun while attending appointments with his physician and dentist. Plaintiff Muller has carried a handgun while walking in parks and while taking his grandchildren to playgrounds. Plaintiff Muller has also carried a handgun while visiting libraries, as well as while attending music shows at public entertainment venues. Finally, Plaintiff Muller has carried a handgun while attending trade shows at casino facilities (i.e. in a conference room, not on the casino floor). While he does not recall carrying a handgun while using public transit, or while visiting a museum or a theater, Plaintiff Muller would want to be able to carry a handgun in any of these places were he to be present there. As a general premise, when Plaintiff Muller carries a handgun, he normally carries it with him throughout the day, unless he is going to a place that prohibits guns, such as a school. Up until now, Plaintiff Mulller has normally carried his handgun in a holster on his person while traveling in car.

All of those actions are now illegal under the New Jersey law signed today, simply because the anti-civil rights Democratic majority in Trenton couldn’t stand the thought of New Jersey residents being able to do the same without having to be kidnapped and taken to another state in order to prove their “need” to carry a firearm.

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I’m not the only one who is of the opinion that Goobernor Newsome’s believing this is somehow a ‘win’ for abortion rights is a fantasy. RKBA is a right that is actually addressed in the Bill of Rights. Abortion isn’t. However, as Goobernor Newsome and Attorney General Bonta aren’t likely to appeal this, all fore the good as it will make lawsuits against California’s gun control laws easier .

Federal judge strikes down California’s ‘fee-shifting’ gun control scheme, which echoed Texas abortion law

A federal judge has blocked the state of California from enforcing a gun control scheme that was modeled after a controversial Texas abortion law, delivering Democratic Gov. Gavin Newsom the exact outcome he wanted.

U.S. District Court Judge Roger Benitez of the Southern District of California issued a permanent injunction on Monday against the “fee-shifting” provisions of the state’s gun law – which empowers private citizens to bring lawsuits against manufacturers of illegal guns – declaring it unconstitutional.

“‘It is cynical. ‘It is an abomination.’ ‘It is outrageous and objectionable.’ ‘There is no dispute that it raises serious constitutional questions.’ ‘It is an unprecedented attempt to thwart judicial review,’” Benitez wrote in his opinion, quoting directly from Newsom’s criticisms of the Texas abortion law.

The Texas measure makes abortions illegal after a fetal heartbeat can be detected and permits private citizens to sue abortion providers or anyone else who assists in a woman’s procurement of abortion for $10,000. This fee-shifting mechanism was designed to protect the 2021 law from judicial review to circumvent the Supreme Court’s old abortion precedent in Roe v. Wade. The high court has since overturned that precedent, permitting states to restrict, or liberalize, abortion.

Newsom called on the California legislature to enact a similar law for guns days after the Supreme Court ruled than the Texas heartbeat law could remain in effect following a legal challenge.

California’s gun law also creates a private right-of-action for citizens to sue gun manufactures who make “assault weapons and ghost guns” for $10,000. Newsom described the law as virtually identical to the Texas provisions, but Benitez wrote that “California’s law goes even further.” He observed that the gun control statute denies a prevailing plaintiff attorneys fees. Further, Benitez emphasized that only the California measure “applies to laws affecting a clearly enumerated constitutional right set forth in our nation’s founding documents.”

“Whether these distinctions are enough to save the Texas law fee-shifting provision from judicial scrutiny remains to be seen,” Benitez wrote. “And although it would be tempting to comment on it, the Texas law is not before this Court for determination.”

The judge’s order is likely to set up a showdown at the U.S. Supreme Court, which is the outcome Newsom desired. The governor’s office called it “hypocritical” to block the state’s gun law while permitting the Texas abortion measure to stand.

“I want to thank Judge Benitez. We have been saying all along that Texas’ anti-abortion law is outrageous. Judge Benitez just confirmed it is also unconstitutional,” Newsom said in a statement Monday. “The provision in California’s law that he struck down is a replica of what Texas did, and his explanation of why this part of SB 1327 unfairly blocks access to the courts applies equally to Texas’ SB 8. There is no longer any doubt that Texas’ cruel anti-abortion law should also be struck down.”

Judge Blocks California Fee-Shifting Statute That Targets Gun Lawsuit Plaintiffs (and Lawyers)

From Miller v. Bonta, decided today by Judge Roger Benitez (S.D. Cal.):

“It is cynical.” “It is an abomination.” “It is outrageous and objectionable.” “There is no dispute that it raises serious constitutional questions.” “It is an unprecedented attempt to thwart judicial review.” Such are the Intervenor-Defendant Governor’s expressed views regarding the fee-shifting provisions of a Texas law (S.B. 8) and, at least by implication, of California’s § 1021.11. It is “blatantly unconstitutional,” says Defendant Attorney General Rob Bonta. {To his credit, given the obvious, the Attorney General has refused to defend § 1021.11.} For the reasons that follow, as they may apply to S.B. 8, but apply clearly to § 1021.11, § 1021.11 is declared unconstitutional. Therefore, Defendants are permanently enjoined throughout the state from enforcing or taking any action to seek attorney’s fees and costs pursuant to § 1021.11.

[A.] Texas S.B. 8 (§ 30.022) and California S.B. 1327 (§ 1021.11)

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Judge Benitez’s Latest Order in Miller v. Bonta Sets the Stage for Taking Down California’s Assault Weapons Ban

Federal Judge Roger Benitez (a/k/a “Saint Benitez” to the 2A faithful) has just entered an interesting order in Miller v. Bonta, the challenge to California’s “assault weapons” ban. It’s not a decision on the merits, but I read it as a pretty clear indication of where he is going and the fact that he intends to try and make his decision appeal-proof.

Recall that after a trial to the bench, Judge Benitez ruled that California had failed to establish that its AWB satisfied either the “text, history, tradition” standard, or the “intermediate scrutiny” test then being used by the Ninth Circuit in Second Amendment cases. He thus invalidated the California “assault weapons” ban.

An appeal was taken, and the Ninth Circuit stayed the case pending resolution of another Ninth Circuit case (Rupp v. Bonta).  While that stay was in place, SCOTUS handed down Bruen, which adopted “text, history, tradition” as the sole test in Second Amendment cases.

That led the Ninth Circuit to punt the Miller v. Bonta appeal back to Judge Benitez “for further proceedings consistent with” the Bruen decision. To me, this was a dodge/delaying tactic, as Benitez’s decision already held that California lost under the “text, history, tradition” test that Bruen adopted, and thus the Court should have simply proceeded with the appeal.

On remand, California essentially asked for a “do-over” where it could take discovery, introduce new evidence, etc. That generally isn’t allowed unless the court (or the court of appeals) has ordered a new trial. Remember, there has already been a trial and a decision in the case. Benitez thus denied the state’s various motions and merely requested additional briefing, which has now been filed.

After a status conference earlier this week, the following minute entry just dropped (h/t Cody Wisniewski of the Firearms Policy Coalition for notifying me) . . .

2022-12-12: Minute Entry for proceedings held before Judge Roger T. Benitez:
Status Conference held on 12/12/2022.

The state defendants shall create, and the plaintiffs shall meet and confer regarding, a survey or spreadsheet of relevant statutes, laws, or regulations in chronological order. The listing shall begin at the time of the adoption of the Second Amendment and continue through twenty years after the Fourteenth Amendment. For each cited statute/law/regulation, the survey shall provide:
(a) the date of enactment;
(b) the enacting state, territory, or locality;
(c) a description of what was restricted (e.g., dirks, daggers, metal knuckles, storage of gunpowder or cartridges, or use regulations);
(d) what it was that the law or regulation restricted;
(e) what type of weapon was being restricted (e.g., knife, Bowie Knife, stiletto, metal knuckles, pistols, rifles);
(f) if and when the law was repealed and whether it was replaced;
(g) whether the regulation was reviewed by a court and the outcome of the courts review (with case citation). Defendants may create a second survey covering a time period following that of the first list. If opposing parties cannot agree on the inclusion of a particular entry on the survey, the disagreement shall be indicated and described on a separate list.

The survey list shall be filed within 30 days. Parties may file a brief up to 25 pages within 30 days thereafter focusing on relevant analogs. Parties may file a responsive brief within 10 days thereafter. Parties shall agree within 20 days on deposing Mr. Roth and Mr. Cramer at an agreed place and time.

What this means:

  • The Court is laser-focused on the state of the law in 1791, but will also at least listen to arguments about what the state of the law was between then and shortly after 1868 (when the Fourteenth Amendment was ratified). But while he’ll also let California file whatever they want regarding subsequent developments in the law, it’s pretty clear that Judge Benitez isn’t interested in that. For a very good analysis of why the only relevant consideration is what the law was in 1791, see this essay by Second Amendment guru Stephen Halbrook, as well as Justice Barrett’s concurrence in Bruen (pp.82-83 of the opinion).
  • Benitez is making the parties present it as a joint report. To me, that’s clearly directed to minimizing the possibility of evidentiary objections on appeal.
  • The stuff he’s asking for has been exhaustively documented already (see the Bruen opinion on this). I think Benitez knows it’s not going to contain much if anything that hasn’t been covered already.
  • I’m assuming that Roth and Cramer are California’s proposed new “expert witnesses,” and he’s allowing their depositions to perpetuate their testimony. In light of his earlier rulings, I suspect he’ll stick to his guns that California doesn’t get a “do-over,” but by doing this he can probably make some additional findings (e.g., “I’ve already ruled the state doesn’t get a do-over, but even if I reopened evidence and considered this proffered new evidence, it wouldn’t change my previous findings”). Again, I see it as Benitez thinking three moves ahead to make his decision bulletproof.

This probably pushes any decision in this case 90 days or so. While the wheels of justice do grind slowly, in this case I foresee them crushing the state of California’s gun control ambitions. Watch this space.

Another disingenuous Federal judge.

Federal Judge Denies Injunction Request Against Rhode Island Magazine Confiscation Law

Banning and confiscating commonly-owned ammunition magazines does not run afoul of the Second Amendment.

At least according to U.S. District Judge John McConnell’s reading of the amendment.

On Wednesday, McConnell denied a motion for a preliminary injunction against Rhode Island’s recently passed law banning the sale and possession of ammunition magazines capable of holding more than ten rounds. He said that so-called Large-Capacity Magazines (LCMs) did not count as “arms” protected by the U.S. Constitution.

“The plaintiffs have failed in their burden to demonstrate that LCMs are ‘Arms’ within the meaning of the Second Amendment’s text,” Judge McConnell, an Obama appointee, wrote in his order. “Moreover, even were they ‘arms,’ the plaintiffs have failed to prove that LCMs are weapons relating to self-defense. There is no Second Amendment violation from the LCM Ban because of those two shortfalls of persuasion.”

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Appeals Court Stays Another Ruling Against New York Gun-Carry Law

New York will once more be able to enforce another section of its sweeping gun-carry restriction bill.

A three-judge panel of the Second Circuit Court of Appeals granted a stay against a district court’s decision blocking a ban on carrying a gun on private property that’s open to the public without express permission. The Monday ruling put a hold on the lower court’s injunction as the appeals court waits to hear the case. It is the third stay issued by the panel as lower court judges pick apart New York’s law, passed in response to the Supreme Court striking down the state’s previous strict gun-carry law.

The stay will allow New York to enforce the first-of-its-kind private property provision and arrest anyone who violates it until the appeals court issues its own ruling. Thanks to the intervention of the Second Circuit in two other cases, the same is true for a wide range of other restrictions–from bans on carrying in church or on the subway to a requirement applicants for permits prove they are of “good moral character” by turning over their social media activity to police. The stays represent a reprieve for New York officials and a setback for the gun-rights groups challenging the law.

Judge John Sinatra of the Western District of New York, a Trump appointee, issued a Temporary Restraining Order against New York’s private property provision late last month. He argued the state’s novel policy, which effectively made most of the state off-limits to legal gun-carry by default, violates the Second Amendment.

“Property owners indeed have the right to exclude,” he wrote. “But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes.”

Sinatra ruled the state defaulting private property that is open to the public, such as retail businesses or restaurants, as off-limits to licensed gun-carriers does not pass the historical test set down by the Supreme Court in New York State Rifle and Pistol Association v. Bruen. The state’s rule is the opposite of how every other state regulates gun-carry on private property. Sinatra said he could not identify any historical analogue for the regulation as required by the Bruen standard.

“The Nation’s historical traditions have not countenanced such an incursion into the right to keep and bear arms across all varieties of private property spread across the land,” he wrote.

He declined to issue a stay requested by New York Attorney General Letitia James (D.). He said a stay would only exacerbate the deprivation of New Yorkers’ rights.

“[L]egislative enactments may not eviscerate the Bill of Rights,” he wrote. “Every day they do is one too many.”

The Second Circuit disagreed. The court did not set a date for when arguments in the appeal would begin. However, it did order an expedited briefing schedule for the case.

Oregon judge signals more trouble ahead for Measure 114

Oregon’s ban on “large capacity” magazines and the state’s “permit-to-purchase” scheme remain on hold for now after a hearing in rural Harney County on Tuesday, with the judge who originally granted a restraining order against the anti-gun ballot measure telling both sides in a court challenge to the new restrictions that he’ll issue a formal ruling on a request for an injunction by this Friday.

Harney County Circuit Judge Robert S. Raschio did say during the hearing, however, that the permit-to-purchase portion of Measure 114 will not take effect, at least until the state can prove that the system is fully operational and won’t result in residents being unable to exercise their right to acquire a firearm for self-defense.

“Any complete bar on the ability to secure a firearm would be unconstitutional even under strict scrutiny,” said Harney County Judge Robert Raschio on Tuesday morning.

The order was also the precursor to several hours of oral arguments and witness testimonies about whether the judge should place a preliminary injunction against ballot Measure 114’s ban on high-capacity magazines. While Judge Raschio made no formal decision on that proposed injunction Tuesday, he said he would issue an opinion no later than Friday, Dec. 16 at noon.

Altogether, Tuesday’s court hearing marked an eventful day for gun advocates in Oregon, many of whom tuned-in to the district court’s live feed to witness the marathon hearing about why the judge should or should not issue a preliminary injunction against Oregon’s ballot Measure 114.…

It was a different story for the issue of magazine capacity, however, discussion of which occupied another six hours in court Tuesday.

Plaintiffs largely argued that by capping magazines to 10 rounds and including restrictions on the use of extenders and removable baseplates, the state has essentially made it impossible to purchase legal firearms in Oregon from gun manufacturers. To prove a point, attorney Tony Aiello called upon firearm dealer Ben Callaway as an expert witness, who said online vendors like MidwayUSA or Zanders Sporting Goods no longer ship firearms to Oregon if they can be modified to hold more than 10 rounds.

Yet, the real challenge for the groups was to prove that guns with a 10-round capacity or more were commonly used for self-defense in 1859, a requirement made by Oregon Supreme Court’s protection of the right to bear arms. But while expert witnesses from both sides of the injunction agreed that multi-shot firearms existed around that time, there was disagreement as to whether these weapons were of common use.

The availability of multi-shot firearms in 1859 shouldn’t be the determining factor in whether or not they’re protected by the Second Amendment. As the Supreme Court noted in the Caetano case, arms that are in common use today but weren’t around at the time of the Founding are still protected by the text of the Second Amendment.

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) . In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent.

What the court should actually be looking for are statutes in place at the time of Oregon’s founding that are historical analogues to the ammunition capacity restriction the state wants to put in place today, and I don’t think anything like that exists. I’m not aware of any state law or even a local ordinance in the state that barred the carrying or possession of revolvers or other multi-shot firearms at the time the state constitution was approved, and given that these types of bans are modern inventions of the anti-gun lobby, I suspect that finding a 19th century analogue is going to be difficult… at least without stretching the bounds of credulity as U.S. District Judge Karen Immergut did when she upheld the magazine ban in a federal lawsuit filed by the Oregon Firearms Federation and several county sheriffs.

With Rashcio pledging to deliver his ruling on the request for an injunction against Measure 114 by noon Pacific time on Friday, we won’t have too long to wait before we learn whether the magazine ban can take effect, though if Raschio does impose an injunction the state will appeal once again to the state Supreme Court. That body has already declined to overturn Raschio’s initial restraining order against Measure 114, however, and if Raschio keeps the status quo in place while the constitutionality of Measure 114 is being litigated there’s a very good chance the state’s highest court will do the same.

Just to clarify.
This requirement isn’t for concealed carry. It’s to simply BUY a firearm.
I think this monstrosity isn’t going to make it through the court system, but it does illuminate just how mindless a lot of people are, which isn’t a new thing, as the Framers recognized the malady even back then when they demanded a Bill of Rights.

Measure 114’s live fire training component leaves trainers in limbo

While Oregon’s new voter-approved gun control measure is getting worked out in the courts, there remains uncertainty among local gun shops and firearms instructors in Central Oregon.

Sharon Preston, owner of Ladies of Lead in Redmond — and an instructor who specializes in self-defense training for women — says there are a lot of questions that still have not been answered about the implementation of Measure 114.

Preston says business has been through the roof. But she says she’s had to stop firearm sales, not knowing what is next with the measure. But she says selling guns is only part of what she does.

“Selling guns is a very small portion of my business. I do it as an added value to my clients, so it’s educational based gun sales. But my main focus is always going to be in training,” said Preston.
She’s been forced to find alternatives as 114 is in limbo.

“I’ve heard too many stories in this store from women, locally. The brutality and violence they have been through, survived through. They want a tool that will allow them to live their lives large again, and they’re not going to be able to get on. That’s why I’m switching to crossbows, pepper ball guns, tasers, knives,” Preston said.

Preston’s biggest concern with the measure lies in the required live fire training — meant to prove shooting proficiency. As of now, she says no guidelines have been spelled out as to how the state will facilitate the training courses. And no one knows who will be authorized by the state to lead those courses.

And there are other unanswered questions.

“They don’t know how many rounds we have to shoot, at what distance we have to shoot, at what target we have to shoot. They don’t know what firearm we can use. So there’s so many questions out there,” said Preston.

The next hearing on Measure 114 will be held Tuesday at Circuit Court in Harney County. Those who support the measure will be able to argue against the temporary hold set in place by Judge Robert Raschio.

As Oregon’s Gun Litigation Diverges, a Collision is Inevitable

The legal fight over Oregon’s gun-control ballot initiative is headed in two different directions, but the paths will eventually have to crash back into each other.

In the wake of Measure 114’s adoption last month, gun-rights advocates filed multiple lawsuits against the permit-to-purchase and magazine ban provisions at the state and federal levels. They argued both provisions are unconstitutional under the right to keep and bear arms protections in the United States Constitution and the Oregon Constitution, especially under the standard articulated by the Supreme Court in New York State Rifle and Pistol Association v. Bruen. But they got different results at each level.

Harney County Judge Robert Raschio issued a Temporary Restraining Order (TRO) against the entirety of the law. U.S. District Judge Karin Immergut delayed implementation of the permit-to-purchase requirement for a month at the request of Oregon officials, who admitted they couldn’t create the system before the deadline but declined to issue a TRO

The judges’ reasoning were in stark contrast to one another. While they both agreed that requiring a permit to buy a gun that was effectively unobtainable violates the right to keep and bear arms, and the requirement would have to be blocked, at least in the short term, they differed on everything else. It’s possible either judge could change their mind, but they both seem pretty convinced of their initial conclusions. It’s more likely higher courts, likely the United States Supreme Court itself, will have to settle the contradictions in their approach–if not in this specific case, at least more generally.

Judge Immergut found Measure 114’s ban on the sale and use of magazines capable of holding more than ten rounds, with limited exceptions, is not unconstitutional. She argued the Second Amendment does not protect the magazines because they are not “necessary to the use of firearms for lawful purposes such as self-defense” since magazines that hold fewer than ten rounds can be used in their place.

“While magazines in general are necessary to the use of firearms for self-defense, Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense,” Immergut 

“As noted above, the ‘corollary… right to possess the magazines necessary to render… firearms operable’ is ‘not unfettered.’ Instead, the right is limited to magazines that are necessary to render firearms operable for self-defense and other lawful purposes.”

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