Category: Courts

BLUF
Immergut said she expected to rule on Monday or Tuesday as to whether to issue a temporary restraining order. Regardless of what she decides, a more involved hearing is still expected on the plaintiffs’ request for a preliminary injunction to block the law from being implemented until a final ruling on the law’s constitutionality.

Judge says she’ll decide next week whether to delay new Oregon gun law

The new law requiring a permit to purchase a gun and banning high-capacity magazines was approved by voters in November, but faces multiple legal challenges

A federal judge Friday said she will decide early next week whether or not she would block a voter-approved gun law days before it is set to take effect.

“This is a very complicated area of law,” U.S. District Judge Karin J. Immergut said, explaining she wanted to review the two sides’ arguments and the cases they referenced before making her decision, particularly given a recent Supreme Court ruling dramatically changing the standards that must be applied to gun laws. “It’s a new landscape.”

Immergut said issuing a temporary restraining order to block Oregon’s Measure 114 from going into effect as scheduled on Dec. 8 would be an extraordinary remedy. Though, that is exactly what the people who have brought the lawsuit want.

The law would require anyone purchasing a firearm to get a permit first and ban magazines holding more than 10 rounds.

The new provisions were narrowly approved by voters in the Nov. 8 election, carried largely by broad support in the state’s more liberal, populous counties. In some rural counties, voters opposed the measure by as much as a three to one margin.

The lawsuit, one of three filed seeking to block the law from taking effect, was brought by the gun rights group the Oregon Firearms Federation, gun store owners in Marion and Umatilla Counties and three sheriffs: Sherman County Sheriff Brad Lohrey, Union County Sheriff Cody Bowen and Malheur County Sheriff Brian Wolfe.

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Another Lawsuit Filed Against Oregon for Most Restrictive Gun Law in the Country

The National Shooting Sports Foundation (NSSF), Oregon State Shooting Association (OSSA), and Mazama Sporting Goods filed a lawsuit against the state’s recently passed Ballot Measure 114, which is considered one of the strictest gun control laws in the country. 

The lawsuit claims that the measure infringes upon the right of Oregon residents to buy and own firearms, imposing “severe and unprecedented burdens on individuals seeking to exercise perhaps the most basic right guaranteed by the Second Amendment.”

This is the third lawsuit filed since November 8, which was filed by the Oregon Firearms Federation (OFF), Sherman County Sheriff’s Department, Second Amendment Foundation (SAF), and Firearms Policy Coalition (FPC).

“The deficiencies in this ballot measure cannot go unaddressed. Forget that it is scheduled to go into effect before Oregon even certifies the election, but it requires potential gun owners to take a class that has yet to be created, at a cost yet to be determined, so that they can obtain a permit that doesn’t permit them to purchase a firearm,” NRA Oregon state director Aoibheann Cline said in a statement to the Daily Caller.

The strict measure will require residents to get background checks, firearm training (which does not currently exist), fingerprint collection, and a permit to purchase any firearm.

The lawsuit also alleges that the measure creates a “Kafkaesque regime” which they claim is not supported by history, tradition, or modern regulation.

“Oregon’s Measure 114 is blatantly unconstitutional,” NSSF’s Senior Vice President and General Counsel Lawrence G. Keane said, adding “the right to keep and bear arms begins with the ability of law-abiding citizens to be able to obtain a firearm through a lawful purchase at a firearm retailer.”

He also said that it threatens the most constitutional right… “Oregon has created an impossible-to-navigate labyrinth that will achieve nothing except to deny Second Amendment rights to its citizens. The measure is an affront to civil liberties which belong to People, not to the state to grant on impossible and subjective criteria,” Keane added.

The state has rushed to pass the measure, meaning no one will be able to buy a firearm beginning on December 8.

“Saint Benitez” delivers another win to gun owners (and legal smackdown to California AG)

U.S. District Judge Roger Benitez, affectionately known as “Saint Benitez” among Second Amendment activists for his string of decisions striking down California gun control laws (decisions that have, unfortunately, largely been stymied by Ninth Circuit Court of Appeals judges), has unleashed his latest opinion on California Attorney General Rob Bonta in two cases that deal with a weaselly attempt by Gov. Gavin Newsom and state lawmakers to make it financially risky to challenge the state’s gun laws in court.

Shortly after the state of Texas passed their anti-abortion law allowing abortion providers to be sued by private citizens and the Supreme Court declined to block it from taking effect, Newsom declared his intent to fire a responding shot in the culture war; this one aimed at the Second Amendment.

Not long after the Supreme Court issued the Bruen decision, Newsom and his legislative allies approved SB 1327, which not only allows California residents to bring their own lawsuits against companies that violate California gun control laws, but imposed a new fee shifting standard on plaintiffs who challenge any of the state’s gun control measures: unless the plaintiffs are successful on each and every complaint they allege, they’re responsible for paying 100% of the state’s attorneys fees. If, on the other hand, the plaintiffs do manage to meet that impossibly high bar, the state is not obligated to pay a dime of their costs.

Two lawsuits were immediately filed in the wake of SB 1327’s enactment; Miller v. Bonta, brought by the Second Amendment Foundation and the Firearms Policy Coalition, and South Bay Rod & Gun v. Bonta from a coalition including the Citizens Committee for the Right to Keep and Bear Arms (where, in full disclosure, I serve as an unpaid board member), Gun Owners of California, Second Amendment Law Center, and the California Rifle & Pistol Association.

On November 28th, Judge Benitez held a hearing on a request for an injunction in the cases. The arguments from the plaintiffs were quite simple; in fact, they were able to throw Bonta’s own words back in his face, since the California AG had previously filed an amicus brief in the challenge to the Texas abortion law on constitutional grounds. Bonta is now forced to defend the very practice he declared unconstitutional just a few months ago, and his chief argument was a weak one: his claim that he won’t enforce the law unless or until the Supreme Court has officially ruled on the constitutionality of the Texas abortion statute. That stance, he argued, should be enough to moot both of these cases, but in today’s ruling Judge Benitez rejected Bonta’s defense in no uncertain terms.

The American court system and its forum for peacefully resolving disputes is the envy of the world. One might question the wisdom of a state law that dissuades gun owners from using the courts to peacefully resolve disagreements over the constitutionality of state laws.

The law at issue here is novel. As four concurring Justices recently said in a Texas case with similarities, “where the mere ‘commencement of a suit,’ and in fact just the threat of it, is the ‘actionable injury to another,’ the principles underlying [Ex parte] Young authorize relief against the court officials who play an essential role in that scheme. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme.” Whole Woman’s Health, 142 S. Ct., at 544-45 (citations omitted). The same principles authorize relief against the state officials here.…

If Defendant Attorney General committed to not enforcing § 1021.11 and entered into a consent judgment binding himself, his office, his successors and district attorneys, county counsel, and city attorneys, it might be a closer question. Again, this does not prevent future Attorneys General or other state statutes from being enacted and enforced. But that is not this case. In this case, the commitment of non-enforcement is conditional. The Defendant Attorney General says that his cessation of enforcement in a seeming case of tit-for-tat will end if, and when, a purportedly similar one-sided fee-shifting Texas statute is adjudged to be constitutional. Certainly, that condition may or may not occur. In the meantime, the statute remains on California’s books. And the actual chilling effect on these Plaintiffs’ constitutional rights remains. Therefore, the case is not moot.

Bonta’s attempt to avoid having to defend the indefensible has failed, and both Miller and South Bay Rod & Gun will now move forward. In response to Benitez’s decision, Second Amendment Foundation founder Alan Gottlieb declared that “California cannot be permitted to use the law to suppress constitutional challenges to its increasingly radical gun control schemes”, and today’s decision is a key step towards a broader decision consigning SB 1327 to the dustbin of history.

Tennessee Court Says YES! Tenants of Public Housing Have Right to Possess Guns

Tennessee – -(AmmoLand.com)- On October 13, 2022, the Tennessee Court of Appeals released a decision that addresses whether tenants in a public housing project can be forced by government landlords to “waive” their 2nd Amendment rights. The decision came in the matter of Columbia Housing & Redevelopment Corp. v. Kinsley Braden, M2021-00329-COA-R3-CV.

The litigation arouse in Maury County, Tennessee, when the landlord, Columbia Housing & Redevelopment Corporation, filed a civil action to evict Kinsley Braden, a tenant, “for possessing a firearm in his apartment in contravention of the lease agreement.” Columbia Housing is a corporation that provides subsidized housing for the City of Columbia pursuant to Tennessee’s Housing Authorities Law. It operated a multi-family, low-income public housing complex in Columbia, Tennessee.

The tenant voluntarily signed a lease that contained a provision prohibiting firearms on the property. When Columbia Housing learned that he had a firearm in his apartment, it moved forward to evict him. The tenant opposed the eviction by claiming that the lease agreement, which was with a government agent, violated his rights under the Second Amendment. The trial court rejected the defense and ruled in favor of the landlord.

The Court of Appeals found it significant and undisputed that the landlord was a governmental entity. As such, the Court concluded that it was bound to act subject to the restrictions on government action imposed by the constitution. It also found that “the unconstitutional conditions doctrine ‘prevent[s] the government from coercing people into giving up’ their constitutional rights.”

Columbia Housing had argued that low-income housing was not protected because it was a “sensitive place” under the Supreme Court’s decisions in Heller and New York State Rifle and Pistol Assoc. v. Bruen. The Court of Appeals rejected that argument based in part on the analysis set forth by the U.S. Supreme Court in Bruen regarding the issue of “sensitive places” and the national tradition dating to the time of the Second Amendment, which defines what those places are. The Court of Appeals also noted that unlike some categories of sensitive places that the Supreme Court has referenced, this case involved an individual’s private home, not a public venue.

This may be the first reported decision by an appellate court in Tennessee that examines the decision in Bruen, and that also looks at the evolving and unsettled sensitive places doctrine. The discussion of the doctrine by the Court of Appeals is only enough to resolve the case before it, but it is significant because it clearly shows adherence by the Court of Appeals to what the U.S. Supreme Court has held.

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FPC Files Lawsuit Challenging Oregon “Large Capacity” Magazine Ban as Unconstitutional

PORTLAND, OR (November 30, 2022) – Firearms Policy Coalition (FPC) announced today that it has filed a new Second Amendment lawsuit challenging Oregon Measure 114’s ban on magazines that can hold more than 10 rounds and requested a temporary restraining order to prevent the ban from being enforced while the case continues. The complaint and motion in Fitz v. Rosenblum can be viewed at FPCLegal.org.

“The State of Oregon has criminalized one of the most common and important means by which its citizens can exercise their fundamental right of self-defense,” argues the complaint. “By banning the manufacture, importation, possession, use, purchase, sale, or transfer of ammunition magazines capable of holding more than 10 rounds (‘standard capacity magazines’), the State has barred law-abiding residents from legally acquiring or possessing common ammunition magazines and deprived them of an effective means of self-defense.”

“Today’s filings are proof yet again that when statist idealogues attempt to unilaterally restrict the rights of peaceable people, FPC will step up and fight back,” said FPC Director of Legal Operations Bill Sack. “And the good people of Oregon should keep their eyes peeled for additional FPC responses to the incredibly flawed Ballot Measure 114.”

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

Individuals who would like to Join the FPC Grassroots Army and support important pro-rights lawsuits and programs can sign up at JoinFPC.org. Individuals and organizations wanting to support charitable efforts in support of the restoration of Second Amendment and other natural rights can also make a tax-deductible donation to the FPC Action Foundation. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit organization, exists to create a world of maximal human liberty, defend constitutional rights, advance individual liberty, and restore freedom. FPC’s efforts are focused on the Right to Keep and Bear Arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government. The FPC team are next-generation advocates working to achieve the Organization’s strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs.

FPC Law (FPCLaw.org) is the nation’s first and largest public interest legal team focused on the Right to Keep and Bear Arms, and the leader in the Second Amendment litigation and research space.

SAF FILES BRIEF SUPPORTING MOTION FOR INJUNCTION AGAINST DELAWARE HB 450

BELLEVUE, WA – The Second Amendment Foundation has filed an opening brief in support of its motion for a preliminary and permanent injunction against the State of Delaware and enforcement of House Bill 450, which radically expands the state’s laws and bans so-called “assault weapons.”

SAF is joined by the Firearms Policy Coalition, Inc., DJJAMS LLC, and two private citizens, William Taylor and Gabriel Gray, for whom the lawsuit is named. The lawsuit names Delaware Attorney General Kathy Jennings as the defendant. Plaintiffs are represented by attorney Bradley P. Lehman at Gilbert Scali Busenkell & Brown LLC.

The case is in U.S. District Court for the District of Delaware.

“We are hopeful that the Court will take swift action with today’s motion for preliminary injunction against Delaware’s ban on constitutionally protected arms that are in common use across the nation,” said SAF Executive Director Adam Kraut. “Each day this law is not enjoined, Delawareans suffer an impermissible deprivation of their constitutional rights. This cannot stand and we are hopeful that the Court will preliminarily enjoin the State from enforcing its ban while the case proceeds on the underlying merits.”

The brief notes that the U.S. Supreme Court’s June ruling in the Bruen case “rejected all interest balancing and the Third Circuit’s prior ‘two-step’ approach in the context of Second Amendment claims.” As a result, plaintiffs contend the Delaware General Assembly’s attempt to justify HB 450 by claiming it has “a compelling interest to ensure the safety of Delawareans” and that the banned arms, which are in common use, “have no place in civilian life,” are entitled to no deference.

“Banning an entire class of firearms may create the impression Delaware lawmakers are ‘doing something’ about violent crime,” said SAF founder and Executive Vice President Alan M. Gottlieb, “but in reality, it will not prevent criminals from misusing firearms, and only serves to penalize law-abiding gun owners.”

Texas gun shop owner sues ATF, accuses agency of abusing federal law

Central Texas Gunworks owner Michael Cargill has filed a federal lawsuit agains the Bureau of Alcohol, Tobacco, Firearms, and Explosives alleging that the government agency is abusing its powers under the Gun Control Act of 1968 to shut down federally licensed firearm retailers for minor clerical and paperwork errors; a practice that Cargill’s attorneys say ignores the actual law.

According to the text of the GCA, the ATF has to find evidence of “willful” misconduct on the part of these FFLs; something that Cargill and his attorneys say is missing from many of the recent revocation notices the ATF has been handing out.

According to the lawsuit, the new policy under President Biden’s team at ATF has turned longtime record-keeping requirements that are supposed to prevent criminals and other dangerous people from buying guns into a weapon against the firearm industry.

“The act allows the federal government to revoke gun dealers’ license to sell firearms — commonly called federal firearms licenses or FFLs — when dealers willfully violate federal or state gun laws,” Mr. Curtis said.

In a statement to The Washington Times, the ATF said it would not comment on specific litigation but defended the agency’s use of the Gun Control Act.

An ATF spokesman maintained that the agency can only revoke a license for “willful violations” of the Gun Control Act.

“The GCA does not define ‘willful,’” the spokesman said, citing a statement from its website. “Federal courts have held that a willful violation of the GCA’s regulations occurs when the FFL commits the violation with an intentional disregard of a known legal duty or with plain indifference to their legal obligations.”

For decades, Cargill says, license revocations were an “exceedingly rare” step reserved only for the “worst actors,” noting, for instance, that in 2013 the ATF recommended license revocations for just 81 of the more than 10,000 shops that were inspected. Starting in the summer of 2021, however, things changed, and Cargill points to Joe Biden’s White House announcement that the GCA would be enforced against “rogue” gun dealers, even those who never willfully intended to make minor paperwork mistakes.

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An in depth and surprisingly ‘even handed’ look at the new Oregon gun control law.

Can the lawsuit trying to block Oregon’s new gun laws actually succeed?

PORTLAND, Ore. (KGW) — While votes were still being counted after Election Day this month — and well beyond — the fact that gun control initiative Measure 114 was projected to narrowly pass proved enough for some of Oregon’s arcane administrative mechanics to begin churning.

According to the Secretary of State’s office, laws passed via initiative petition like this one go into effect precisely one month after the election: midnight on Thursday, Dec. 8. Even the authors of Measure 114 said that they thought it would become effective a month after the vote was certified.

When and if Measure 114 becomes law in its current form, it would require a permit in order to buy a gun. Buyers would have to get a permit that’s expected to cost around $65 and complete an approved firearms safety course, which would also likely come at a cost. The permits also require submission of a photo ID, fingerprinting and a criminal background check.

Permit applications would be handled by the local police department or county sheriff’s office, and Oregon State Police would handle background checks — which they already do for firearms purchases. All of that information would then go into a database.

Measure 114 also bans the sale of magazines that hold more than 10 rounds.

Immediately after the measure passed, a few Oregon sheriffs released statements about their feelings on the matter. Most were critical of the measure, but a few took that a step further and said that they refused to enforce certain aspects of it — also expressing hopes that a lawsuit would block the law before it could go into effect.

The short timeline between Election Day and the Dec. 8 effective date meant that an inevitable legal challenge to Measure 114 would need to coalesce quickly. And it did, less than two weeks after the election.

On Friday, a Marion County gun store owner, the Sherman County Sheriff and a group called the Oregon Firearms Federation filed a lawsuit. It argues that the new law violates the Second Amendment to the U.S. Constitution, taking special aim at the magazine capacity portion of the law.

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Christian v. Nigrelli – FPC Law 2A Challenge to New York “Sensitive Location” Carry Bans

Summary: Federal lawsuit challenging “sensitive location” carry bans in New York as unconstitutional under the Second Amendment.

Plaintiffs: Brett Christian, Firearms Policy Coalition, and Second Amendment Foundation

Defendants: New York State Police Superintendent Steven Nigrelli and Erie County District Attorney John Flynn

Litigation Counsel: David Thompson, Peter Patterson, John Tienken, and Nicolas Rotsko

Docket: W.D. NY case no. 1:22-cv-00695 | CourtListener Docket

 

The Supreme Court grants cert for trademark lawsuit over chewable dog toy designed to mimic Jack Daniel’s whiskey bottle

 

Now accepting the point that trademark law is an important part of U.S. business, I still find it near ridiculous that SCOTUS will take such a case, and give it the same consideration, and time, that is given any other case they decide to take, instead of likely bypassing one or more of the 2nd amendment cases that undoubtedly come their way during the current session.

I mean…a doggie toy?

Jack Daniel’s Seeks to Take Dog Toys Battle to Supreme Court

Nov. 20, 2020 [NOTE THE DATE! SCOTUS has had this for two years!

Along with weighty matters of state like the presidential election and the future of health care, the U.S. Supreme Court’s tasks could include deciding whether trademark law has an exemption for potty humor.

Jack Daniel’s Properties Inc. is petitioning the high court to reverse a ruling by the U.S. Court of Appeals for the Ninth Circuit that a maker of dog toys could sell one shaped like the company’s familiar whiskey bottles. The appeals court held that VIP Products LLC’s pun-laden chew toy expressed a humorous message, involved the First Amendment, and satisfied the so-called Rogers test for incorporating trademarks into creative works.

That upset a balance between trademark law and free speech by dramatically and baselessly over-extending the Rogers test for evaluating trademark use in “artistic expression,” Jack Daniel’s and trademark groups argue. VIP Products this week secured a four-week extension of its Wednesday deadline to file a response asking the high court to reject the Jack Daniel’s petition.

The Ninth Circuit’s interpretation “would completely gut the trademark and dilution statutes,” trademark attorney James H. Donoian of McCarter & English LLP said. He said he couldn’t understand the basis for the dog toy being deemed an artistic expression, bristling at the court finding mere “humor” to be enough.

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Analysis: The Supreme Court Probably Won’t Save Non-Violent Felons’ Gun Rights

A federal appeals court has upheld the ban on non-violent felons owning guns using some questionable reasoning, but don’t expect the Supreme Court to intervene.

The Third Circuit found the ban is consistent with the nation’s historical tradition of gun regulation in the United States, as required by the Supreme Court’s standard in New York State Pistol and Rifle Association v. Bruen. The Third Circuit took something of a scattershot approach to justifying its decision, relying on evidence with varying degrees of

In 1995, Bryan Range was convicted of defrauding the government out of $2,458 in food stamps. He never served a day in prison. However, his non-violent crime was punishable by up to five years in jail. So, under the Gun Control Act of 1968, he has been barred from buying or even possessing guns for life.

The Third Circuit said this permanent prohibition has several historical analogues. It started by citing 17th and 18th-century English bans on gun ownership by disfavored religious groups, especially Catholics. While those bans did survive to the early American republic, the Court argued they demonstrated that the tradition of disarming people based on their inclusion in a group perceived as dangerous, even if they haven’t committed any violent crimes, is deeply rooted.

It went on to cite a handful of bans on disfavored racial groups owning guns during the founding era as evidence this idea was popular in America as well.

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms,” the court’s per curiam opinion reads. “Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence.”

The Third Circuit did not invent this line of thinking. Justice Amy Coney Barrett cited the concept in her Kanter dissent, although she came to the opposite conclusion about the constitutionality of gun bans for non-violent felons. But it would be rather disturbing if the legal underpinning for some of the nation’s most significant gun laws, which continue to be disproportionately enforced against minorities, were justified by explicitly bigoted historical laws.

Frankly, I doubt the Supreme Court would actually buy this analysis, given how thoroughly it has rejected racist gun laws from America’s past in its Second Amendment rulings thus far. Instead of viewing them as viable historical analogues for understanding the limits of Second Amendment protections, it has used them as examples of infringements on Americans’ gun rights that help illuminate the expansive nature of those protections.

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Md. handgun licensing lacks historical roots, gun group tells 4th Circuit

Maryland’s licensing requirement for would-be handgun buyers infringes upon the constitutional right of people to keep arms for personal protection in their home and has no historical roots from either 18th- or 19th-century America, gun rights advocates told a federal appeals court Wednesday.

Maryland Shall Issue made its argument as the 4th Circuit considers whether the state’s handgun qualification license, or HQL, comports with the Second Amendment and its most recent interpretation by the U.S. Supreme Court.

In June, the high court ruled 6-3 that gun restrictions are valid only if in keeping with the constitutional text, history and tradition of state firearm regulations when the Second Amendment was adopted in 1791 or when the 14th Amendment extended the right to keep and bear arms to the states in 1868.

Maryland Attorney General Brian E. Frosh told the 4th Circuit last month that the history and tradition of ensuring gun owners are trained in firearm use dates to 1792 – the year after the Second Amendment’s ratification — when Congress enacted the Uniform Militia Act. Several states passed similar statutes shortly after, Frosh stated in papers filed with the appellate court.

In its response, MSI distinguished the militia laws from Maryland’s HQL.

“Whereas the HQL requirement requires nearly everyone to complete the firearm safety course before acquiring a handgun, militia laws required militia training only after the militia men had acquired a handgun or other firearm,” MSI wrote in its 4th Circuit filing. “No state required militia training before firearm acquisition or tied this training to firearm acquisition.”

In addition, the militia laws and Maryland’s licensing mandate were passed for wholly different reasons, stated MSI, which was joined in the HQL challenge by gun seller Atlantic Guns Inc. and two Marylanders.

“Maryland enacted the HQL requirement to encourage safer gun storage practices in the home and reduce handgun violence in urban areas,” MSI stated.

“Militia laws, by contrast, were enacted to train young men for military service so they would be prepared for armed defense against foreign or domestic threats,” MSI added. “Militia laws did not condition the exercise of anyone’s right to acquire a firearm on compliance with the militia requirements.”

Those challenging the licensing requirement are represented by MSI President Mark W. Pennak; Cary J. Hansel III, of Hansel Law PC in Baltimore; and John Parker Sweeney, of Bradley Arant Boult Cummings LLP in Washington.

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Gun makers fire back, sue states over “public nuisance” laws

Over the past couple of years a handful of states, starting with New York, have put laws on the books that allow citizens to sue gun makers over the third-party actions of criminals; an attempt to do and end-run around the federal Protection of Lawful Commerce in Arms Act, which was approved on a bipartisan basis in 2005 in an effort to curb these exact kinds of junk lawsuits meant to bankrupt the firearms industry. The most recent states to adopt these public nuisance statutes are New Jersey and Delaware, and they’re now the subject of brand new litigation aimed at overturning the regulations on the grounds that they violate the Supremacy Clause of the Constitution as well as many other portions of our founding document.

“These laws enacted by the Delaware and New Jersey flout the will of Congress and undermine the U.S. Constitution,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “These state laws are at odds with bedrock principles of American law, which does not hold manufacturers and sellers legally responsible for the actions of criminals and remote third parties over whom the manufacturer and seller have no control when they misuse lawfully sold products.”

Delaware and New Jersey’s laws also violate the First Amendment, Second Amendment, Due Process Clause and Commerce Clause. These laws would impose liability on industry members for firearms lawfully sold in other states that later find their way into Delaware or New Jersey through the independent actions of remote third parties and criminals.

Basically, any time a criminal uses a gun in the commission of a crime Delaware and New Jersey want a gunmaker to be sued for their supposed liability. Even if the gun was stolen, even if the buyer passed a background check, even if the gun had been purchased 20 years ago; if there was a gun involved, the gun maker should pay.

It’s an absurd legal standard, and one that anti-gun politicians only want to apply to the firearms industry. Brewers, distillers, and automotive makers aren’t subject to lawsuits every time a drunk driver criminally misuses their product and harms or kills someone as a result. Heck, both the New Jersey and Delaware laws specify that these public nuisance standards apply to gun makers only. If someone uses a knife in the commission of an armed robbery, the company that crafted the blade can’t be sued. But if the robber uses a pistol, then victims can fire off those lawsuits at will.

Joe Biden has made the repeal of the PLCAA a regular part of his gun control talking points, but now that Republicans have secured a majority in the House of Representatives that’s off the table. Instead, expect to see a flood of blue states create their own “public nuisance” laws in the coming months to get around the PLCAA’s prohibition on these junk lawsuits.

The NSSF has already filed suit against New York’s law, and the case is currently in the Second Circuit. Attorney Paul Clement, who successfully argued for the New York State Rifle & Pistol Association in the Bruen case, is representing the firearms industry trade group and individual gun manufacturers in both the New York case and the new lawsuit taking on the Delaware and New Jersey statutes. Clement is a brilliant legal mind, and his initial complaint in the latest lawsuits are fun reads with solid arguments in favor of overturning the laws and preventing them from being enforced while the issue is litigated.

Here’s a taste (emphasis is mine):

A1765 is breathtaking in its scope. Although criminal misuse of a firearm triggers the statute’s application, A1765 does not regulate the use of firearms. Nor does A1765 impose liability on individuals who misuse firearms to the detriment of themselves or others. Instead, the statute regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products. In other words, A1765 regulates commerce in and speech relating to arms—even when it takes place entirely outside of New Jersey, as will often be the case.

The statute also removes traditional elements of tort law that ensure that judges and juries do not impose liability on private parties for constitutionally protected conduct. For instance, speech-based torts traditionally required proof of reliance. A1765 not only does away with that bedrock requirement, but allows judges and juries to impose liability based on truthful, non-misleading speech about lawful products. Making matters worse, A1765 redefines proximate cause to include criminal misuse by third parties with whom a defendant never dealt—which is not proximate cause at all.

None of this is constitutional, argues Clement.

The Commerce Clause prohibits states from regulating commerce (selling, manufacturing, marketing, etc.) that takes place beyond their borders, even when that commerce has effects within the state. The First Amendment prohibits states from punishing wide swaths of truthful speech about lawful products, even if the products are dangerous or the speech is unpopular. The Second Amendment protects commerce in arms. And the Due Process Clause prohibits states from punishing one private party for the conduct of someone else.

All of that is reason enough to invalidate New Jersey’s new statute. But there is an even more obvious problem with A1765: It is squarely preempted by federal law. In the late 1990s and early 2000s, several state and local governments sought to use novel applications of common law theories like negligence and nuisance to impose civil liability on manufacturers and sellers of firearms and ammunition when third parties misused their products. Congress saw these lawsuits for what they were: unconstitutional efforts to stamp out lawful and constitutionally protected activity. To end such incursions, Congress enacted the Protection of Lawful Commerce in Arms Act (“PLCAA”) in 2005 by wide margins on a substantially bipartisan basis. The PLCAA expressly prohibits and preempts state-law civil actions “brought by any person against a manufacturer or seller of [firearms or ammunition] … for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of [firearms or ammunition] by the person or a third party.”

These public nuisance statutes are intended to go around the PLCAA, and lawmakers have explicitly acknowledged that. As Clement pointedly notes, “while the state may get credit for its candor, that does not make its law any more consistent with the protections afforded by Congress and the Constitution.”

These public nuisance laws have been a giant middle finger to the gun industry, the Constitution, and Congress, and as long as the courts New York, New Jersey, and Delaware to get away it more Democrat-controlled states will decide to do the same. The end goal isn’t about accountability for those responsible for criminal acts. It’s an end to the firearms industry, one blue-state verdict and gun company bankruptcy at a time.

An additional take on the morning’s mendacity by the 3rd circuit court

Appeals Court Cites Bigoted Historical Laws to Uphold Ban on Non-Violent Felons Owning Guns

The federal government can continue to block non-violent felons from possessing firearms.

That’s what a three-judge panel for the Third Circuit Court of Appeals ruled on Wednesday. It found the federal law barring those convicted of non-violent felonies from possessing guns is consistent with the country’s history and tradition of gun regulation. The court specifically relies on historical laws that disarmed disfavored minority groups to reach that conclusion, despite referring to that history as “repugnant” and “unconstitutional.”

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms,” the court’s per curiam opinion reads. “Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence.”

The ruling is the first from a federal appeals court to deal with the federal prohibition on felons having guns after the Supreme Court created a new standard for reviewing gun cases in New York State Rifle and Pistol Association v. Bruen, which requires modern gun laws to be substantially similar to those in place near the ratification of the Second Amendment in order to be considered constitutional. An established circuit precedent upholding felon-in-possession crimes, even for non-violent offenders, could prove influential as courts flesh out how the new Bruen standard affects modern gun laws.

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Portland’s Antifa ‘Justice’ Strikes Again

A Portland “anti-fascist” activist has been found not guilty of being a fascist by roughing up a journalist and stealing his phone because he didn’t like what the reporter said about his Antifa friends. After the Portland judge let off the notorious Portland Antifa attacker, he delivered a lecture to the victim, reporter Andy Ngo.

There’s your justice, Portland.

Ngo sought justice in court for three-and-a-half years against John Hacker, one of a mob of activists that has made a point to follow, chase, hassle, and attack Ngo multiple times.

 

The Post Millennial reported that Hacker confronted Ngo in a Portland area 24 Hour Fitness where he assaulted the reporter, poured water on him, and stole his phone. Ngo captured part of John Hacker’s attack on video.

“The shaky video is less than 30 seconds long, but prosecutors say it’s a key piece of evidence showing Hacker approaching Ngo, grabbing the device, and yelling, “I will break your f*cking phone,” the news website reported.

The Deputy District Attorney argued before the judge that Hacker had conducted a “harassment campaign targeting Ngo for years.”

Indeed, Hacker was part of a mob that chased Ngo in downtown Portland, forcing the journalist to seek a hiding place at a posh hotel.

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Texas judge rules that disarming those under protective orders violates the Second Amendment

A Texas federal judge declared it was unconstitutional to disarm someone who is under a protective order, setting into motion a likely legal fight over who can possess firearms – a move that advocates say could have wide-ranging impacts on gun access across the county.

The video featured above is from a previous report on a Judge ruling those under felony indictment can buy guns.

U.S. District Judge David Counts, who was appointed by former President Donald Trump, ruled last week that banning those under a protective order from possessing a gun infringes on their Second Amendment rights.

Judges who deem people a danger to family members or intimate partners can take the extra step to issue a protective order requiring people to relinquish the guns they already have. Federal law currently prohibits domestic abusers who are charged with a felony, misdemeanor or are under a protective order from possessing a gun.

The ruling comes months after a landmark U.S. Supreme Court case on the Second Amendment, the effects of which, legal experts say, are just beginning to be felt.

This June, the high court’s ruling in New York State Rifle & Pistol Association vs. Bruen, written by Justice Clarence Thomas, struck down the state’s concealed carry law and held that courts going forward should uphold gun restrictions only if there is a tradition of them in U.S. history.

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SCOTUS turns away bump stock, gun seizure cases

For the third time this year the Supreme Court has rejected a case dealing with the ATF’s administratively imposed ban on bump stocks, denying cert in a challenge to the ban brought by a group of federally licensed firearm retailers and several individuals who argued that the ban was an unconstitutional violation of the Fifth Amendment’s Takings Clause by forcing existing bump stock owners to destroy them without any kind of compensation on the part of the federal government.

Today’s decision follows the denial of two other challenges to the bump stock ban, which was imposed by the Trump administration following the Route 91 Harvest music festival shooting in Las Vegas in 2017. Previously, the ATF had determined that bump stocks should not be considered “machine guns” under federal law, given that even with bump stocks attached it took a pull of the trigger to release a single round.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a U.S. Justice Department agency, reversed a previous conclusion and classified bump stocks as machine guns under a 1934 U.S. law called the National Firearms Act. The policy took effect in 2019.

Two sets of plaintiffs filed lawsuits seeking compensation for having to destroy or surrender their bump stocks in the Court of Federal Claims, which hears monetary claims against the U.S. government. A judge dismissed the actions, finding the policy to be a lawful exercise of the federal government’s power to outlaw dangers to public health and safety.

“The Washington-based U.S. Court of Appeals for the Federal Circuit upheld those decisions last year for a different reason, ruling that a property right in the devices was inherently limited given the existing federal prohibition on machine guns.

We don’t know why SCOTUS rejected these challenges, just that there weren’t four justices willing to accept any of these cases. And while the odds of any particular case being granted cert by the Court are low (about 1-in-10,000), gun owners are rightfully going to be concerned about the Court’s inaction, especially with the Biden administration using the Trump tactic to pursue administrative bans against unfinished frames and receivers, pistol stabilizing braces, and potentially even semi-automatic handguns and rifles.

Today’s decision doesn’t mean that these same justices will stand by and let future abuses of executive authority slide, but as long as SCOTUS doesn’t object the Biden administration is likely to take their silence as a green light for more rule-making of dubious constitutionality.

The other case turned away by the Supreme Court today dealt with the seizure of a New York man’s firearms; a case that the attorneys for Wayne Torcivia argued was virtually identical to a similar search and seizure that the Court ruled unconstitutional in Caniglia v. Strom. 

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Opponents prep lawsuit over Oregon gun control measures

Measure 114, the sweeping ballot initiative that will impose a ban on “large capacity” magazines and establish a “permit-to-purchase” system that includes mandatory training, a waiting period, extensive background investigations, and a database of all prospective gun owners, is likely to be officially certified on December 15th, which will start the clock on the 30-day window before the new measures officially take effect.

Already, however, we’re seeing signs that might not be enough time for backers of Measure 114 to draft all of the associated policies and technical language needed to enforce the provisions within the anti-gun laws… and opponents are gearing up for a lawsuit as well. In fact, the speculation in Oregon now isn’t whether Measure 114 will pass, but whether it will ever actually be enforced.

We’re very humbled by this, but it wasn’t a victory over anybody. It was a victory for our children that we can all celebrate,” said one of the chief petitioners, the Rev. Mark Knutson from Portland’s Augustana Lutheran Church.

Lawyers advising the Oregon Firearms Federation, the Second Amendment Foundation and other gun rights advocates disagree.

They’re preparing to ask a judge for a temporary restraining order and preliminary injunction to prevent the measure from taking effect until a judge can weigh whether it meets constitutional muster.

“The first draft of our complaint has been written. We’re still adding plaintiffs to the suit, and we’ll be ready to pounce,” said Alan Gottlieb, founder of the Second Amendment Foundation, based in Bellevue…

While the passage of Measure 114 shows the strength of the gun safety movement right now, it’s too early to tell whether the law will survive constitutional scrutiny in the wake of the major U.S. Supreme Court ruling in late June overturning a New York gun safety law, said Adam Winkler, a constitutional law professor at UCLA School of Law.

“There’s no doubt the U.S. Supreme Court has declared war on gun safety legislation,” Winkler said. “We don’t know which exact laws will be upheld.”

He suspects part of Measure 114 may withstand review, such as the move to require completed background checks before a gun sale, but others may not, such as the ban of magazines that hold more than 10 rounds of ammunition.

“It’s going to be awhile,” Winkler said, “before this law goes into effect, if it ever does.”

If the passage of Measure 114 shows the current strength of the gun control movement, then it’s not particularly strong. Measure 114 will likely receive the approval of about 52% of voters this cycle; far below the 80-90% support that gun control advocates claim to have for their infringements on the Second Amendment rights of the people. And as Oregonians get a first-hand look at how the new laws will be implemented, I suspect that support is going to decline even further.

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