Today, the Ninth Circuit remanded a lawsuit we're watching that challenges California's ammo background check law. Judge Bumatay dissented: pic.twitter.com/8rhk6u5RO1
— Firearms Policy Coalition (@gunpolicy) November 17, 2022
Category: Courts
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.
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.
In another incident, Antifa thugs poured a cement-like mixture all over Ngo’s face after beating him, sending the journalist to the hospital with a brain injury.Hacker testified that he went after Ngo and stole his phone because Ngo doxxed his Antifa friends. Then Hacker testified that he doxxes the right people, “violent people” and “Nazis.”
As Ngo pointed out on Twitter, his attacker admitted “to dumping liquid on me, confronting me, hitting me, stealing my phone & fleeing.”
But the judge wasn’t moved by this attack on Ngo or persuaded by Antifa’s dogged stalking of the journalist. Rather, Judge Eric Dahlin lectured both men as if Ngo were the guilty party or had asked to be attacked and have his phone stolen by Hacker. Dahlin told them, “if anyone is interested in actually making positive changes to society, I would ask that you all examine your own methods, and ask yourselves, are these methods that I’m using helpful? Is it actually making a positive impact?”
I wonder if this judge asks all assault victims if they “should examine [their] methods”?
The mental gymnastics these judges go through. If they REALLT wanted to be consistent with text, history and tradition they should’ve ruled “Only minorities with non-violent felonies can’t own guns.”
— not quite sure 🤔 (@avsternator) November 16, 2022
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.
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.
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.
Dangerous Use of Serial Numbers Found Unconstitutional
U.S.A. –-(AmmoLand.com)-– The most dangerous use of a serial number on a firearm is as a registration number. In effect, gun registration is gun confiscation. It was not the intent for which serial numbers were made. They were created to track firearms with production changes and as a way for government arsenals to track the production and military use of weapons.
A federal court recently held a law passed in 1990, which makes possessing a firearm with a removed serial (registration) number illegal, is unconstitutional.
This is an important decision. It has relatively minor effects at this time. The law was a step toward universal firearms registration.
Finding the law unconstitutional subverts the push for government control over firearms.
Suppose a person cannot be punished for merely possessing a firearm from which a serial number has been removed. In that case, the entire scheme for government control over legally owned firearms falls apart.
There cannot be effective gun registration if a person cannot be punished for possessing a gun with the serial number removed.
The legal ability to possess firearms without serial numbers buttresses the deterrent effect of an armed population.
If government agents demand a person turn in a firearm that is registered to them, they can remain silent.
If the firearm appears at some later date, and the serial number has been removed, it becomes difficult to connect the firearm to the person it was registered to.
It becomes difficult to punish a person for an act someone else commits with a firearm originally purchased by them.
A unique serial number is a key to efforts to register and control firearms by the administrative state. Nelson T. “Pete” Shields of Handgun Control, inc. laid out the plan in 1976:
“We’ll take one step at a time, and the first is necessarily – given the political realities – very modest. We’ll have to start working again to strengthen the law, and then again to strengthen the next law and again and again. Our ultimate goal, total control of handguns, is going to take time. The first problem is to slow down production and sales. Next is to get registration. The final problem is to make possession of all handguns and ammunition (with a few exceptions) totally illegal.”
When people may not be punished for possessing a firearm whose serial number has been removed, the plan falls apart.
Michigan Supreme Court kicks campus carry ban case back to lower court
A challenge to the University of Michigan’s ban on firearms on campus is still underway after the state’s Supreme Court sent the case back to the Court of Appeals with instructions to re-consider its ruling in light of the Bruen decision.
At first glance, this looks like a relatively easy case. The Supreme Court said that “schools” were among those few “sensitive places” where there’s a historical tradition of banning firearms, so that must mean that the university’s gun ban is in-line with the Constitution, right? As Michigan Supreme Court Justice David Viviano wrote in a concurrence to the order sending Wade v. University of Michigan back to the court of appeals, it’s not nearly as cut and dried an issue.
To support its threshold analysis, the Court of Appeals relied on the statement in Dist of Columbia v Heller, 554 US 570, 626-627 (2008), that the Second Amendment did not disturb “longstanding prohibitions on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” In the present case, the Court of Appeals’ entire “historical analysis” was to examine one dictionary from 1828 to determine whether universities were considered “school[s]” in 1868.
Even if one concludes that the Court of Appeals reached the correct result, this paltry review of the main question is inadequate. Moreover, it is not at all apparent that Heller’s brief discussion of sensitive places was intended to establish a rule that all entities historically known as “schools” could permissibly ban firearms, meaning the only question that would remain for future cases is whether the entity at issue was considered a “school.” Nor is it even clear that the Court meant to include universities and colleges in its reference to “schools,” let alone to say that such locations can completely ban firearms. See Note, Guns on Campus: Continuing Controversy, 38 J C & U L 663, 667-668 (2012) (noting that Heller did not address guns on university campuses or define “schools” to include higher education).
Viviano went on to describe two different areas of historical analysis that he’d like to see from the appellate court. First, whether there were any similar regulations dealing with bearing arms on university and college campuses at the time the Second and Fourteenth Amendments were ratified. Viviano notes that in his own initial analysis he’s found some laws that contain “partial restrictions”, but none that come close to the complete ban in effect on the University of Michigan campus.
The second line of historical analysis suggested by Viviano is whether or not traditional college campuses are even a good historical analogue for “large modern campuses like the University of Michigan’s.” Viviano wonders whether modern campuses are “so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?”
The University of Michigan itself occupies nearly one-tenth of Ann Arbor. Many areas on campus, such as roadways, open areas, shopping districts, or restaurants, might not fit the “sensitive place” model suggested by Heller—they may instead be more historically analogous to other locations that did not have gun restrictions. And because the campus is so entwined with the surrounding community, the ban might also burden carrying rights on locations outside campus, as many individuals will regularly go from campus to off-campus environments, even in a single trip; because they cannot bring a gun on campus, they will not feasibly be able to bring the gun to the off-campus locations either.
It’s an excellent point, and one that strikes at the heart of several of the post-Bruen restrictions on the right to carry that we’ve seen implemented or introduced in blue states over the past four months. Bans on concealed carry in public transportation, for example, not only prevent those who rely on it from being able to bear arms while on a city bus or subway, but throughout the course of their daily routine as well.
With the case going back to the court of appeals it will likely be several months before we get a decision, and Justice Viviano’s concurrence suggests that upholding the U of M gun ban won’t be as easy as gun control activists are hoping for. We’ll keep an eye on this case for any future developments, but in the meantime Michigan gun owners should be aware that the ban remains in effect for the time being.
I say use a chainsaw, like Marcel Ledbetter did.
Yesterday, a Texas federal judge struck down 922(g)(8)
Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.
A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality.
That is, until the Supreme Court intervened in Bruen.No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.
And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw.…this Court’s opinion says nothing about whether a state court could remove someone’s guns through conditions of release or a restraining order.
“But if the Second Amendment can be read separate from the First as the Government argues, the history of disarming someone because of political allegiance oaths could be used to justify disarming political dissidents today.
Another problem is that § 922(g)(8) prohibits possession of a gun even if the state court order doesn’t. Indeed, § 922(g)(8) does not require that the court order prohibit possessing a gun.
Federal Judge Strikes Down Biden Student-Loan ‘Forgiveness.’
A federal judge in Texas on Thursday blocked President Biden’s student-loan “forgiveness” plan in response to a lawsuit from the Job Creators Network Foundation (JCNF).
The conservative advocacy group filed a suit in October arguing that the Biden administration violated federal procedures by not allowing borrowers to provide public comment before the program was unveiled.
Judge Mark Pittman of the Northern District of Texas called the plan an “unconstitutional exercise of Congress’s legislative power” and noted the program failed to go through standard regulatory processes.
“No one can plausibly deny that it is either one of the largest delegations of legislative power to the executive branch, or one of the largest exercises of legislative power without congressional authority in the history of the United States,” Pittman wrote in a 26-page opinion.
One Year Later: The sky did not fall after the Supreme Court exited the abortion debate.
Exactly one year ago, the Federalist Society held its National Lawyers Convention. And exactly one year ago, the Supreme Court was enmeshed in the abortion debate on two fronts. First, Jonathan Mitchell, also known as “The Genius,” foisted the impermeable fetal heartbeat law on the judiciary. Second, Mississippi’s fifteen-week abortion ban was slated for oral argument. At the time, we were warned about the parade of horribles that would fall if the Supreme Court allowed either of these laws to go into effect.
One year later the story looks very different–especially after election day. In Kansas, voters rejected a ballot measure that would have reversed a state supreme court decision that protected abortion. And all the justices who joined that opinion, as well as several other justices appointed by the Democratic governor, were retained. Voters in several states also rejected efforts to scale back abortion rights. In Kentucky, 53% of voters rejected a referendum that would have stated there was no right to abortion under the state constitution. In Montana, 53% of voters rejected a “born alive” amendment to the state constitution. In Michigan, 56% of voters approved a referendum that protects a right to abortion, and wipes out a 1931 law that banned the procedure.
Justice Scalia’s clarion call in Casey rings true three decades later:
Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Justice Breyer should be proud that Dobbs is making democracy work.
As a general matter, I no longer pay attention to predictions that the sky will fall after a conservative Supreme Court victory. The sky did not fall after Heller. The sky did not fall after Citizens United. The sky did not fall after Shelby County. The sky did not fall after Hobby Lobby. The sky did not fall after Rucho. And so on. The sky will not fall after Dobbs.
What’s left standing after judge guts NY carry laws?
As my colleague Tom Knighton reported this morning, U.S. District Judge Glenn Suddaby has halted enforcement of many aspects of New York’s Concealed Carry Improvement Act, from the “good moral character” requirement to the state’s designation of a host of publicly-accessible places as “sensitive” locations off-limits to concealed carry holders.
The 184 page order is mostly great news for gun owners, but Suddaby is still allowing several components of the CCIA to remain in place, like the requirement that concealed carry applicants provide a list of four character references, take part in an in-person meeting with law enforcement, and provide proof of 18 hours of training (16 hours of classroom training and 2 hours of range time) before concealed carry licenses “shall” be granted.
In upholding those provisions of the CCIA, Suddaby pointed to several statutes in place near the time of the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868. For the character references, Suddaby noted that at least five colonies “had gun laws based on a reputation-based perception of an individual (Pennsylvania, Maryland, North Carolina, Virginia and New York).” Suddaby also found “three historical statutes (one from a state and two from cities) requiring an applicant to provide character references to be permitted to carry a gun,” and determined that “together, these eight laws (five of which came from states in 1777, including Virginia) were sufficiently established and representative to constitute a historical tradition of firearm regulation based on reputation (for example, by a reasonable number of character references).” Though the judge did note in an aside that “it seems overreactive (and a bit offensive) to literally analogize the need to regulate concealed-carry applicants to the need to regulate ‘groups deemed dangerous’, that’s pretty much what he ended up doing.
In upholding the state’s expansive training standards, Suddaby said the financial burden on applicants is “troubling,” but ruled that the provisions can remain in place for now because of “the analogousness of a historical requirement that those persons without familiarity of firearms must become familiar with them if those persons are to exercise their right use firearms to defend themselves in public,” adding that [i”]n addition, as the Court stated in its Decision and Temporary Restraining Order of October 6, 2022, it has been persuaded by Defendants that historically Americans’ familiarity with firearms was far more common than it is today.” The problem with that line of reasoning is that most of the statutes that Suddaby points to in upholding the training mandate are directly related to militia service; something that is not required in order to exercise your right to keep and bear arms.
Moreover, it’s incredibly difficult for would-be carry holders in some parts of the state to find access to the state-mandated training. There are few ranges located in and around New York City, for example, and applicants are forced to travel for some distance, perhaps even staying in another location overnight and incurring additional costs, in order to meet the state’s requirement.
Interestingly, Suddaby suggested that he’d be amenable to halting enforcement of the in-person meeting requirement for concealed carry applicants, and even laid out a better argument than the one used by plaintiffs.
Granted, again, it seems a stretch to analogize the modern need to regulate concealed carry applicants to the historical need regulate “groups deemed dangerous.” And the need to personally see that the members of one’s military are competent to handle firearms during a time of war seems greater than the need to look all concealed carry applicants in the eye (and maybe exchanged a few words with them) after they have provided four character references and completed 18 hours of firearms training. However, Plaintiff Sloane has not yet adduced evidence of the inconvenience he would incur as a result of such an in-person meeting. (See generally Dkt. No. 1, Attach. 4 [Sloane Decl.].)
Conceivable examples of such evidence might include (1) the need to take time away from work or family to appear before a licensing officer, or (2) any delay experienced in having an appointment scheduled due to the CCIA’s imposition of this requirement on every applicant. Instead, Plaintiff Sloane has relied only on a possible infringement of his Fifth Amendment right to remain silent. (Id. at ¶ ¶ 5, 17-19.)
The problem with this sole reliance is that, even setting aside the argument that an applicant is not “in custody” during such an in-person meeting, Plaintiff Sloane’s Fifth Amendment injury stemming from an “interrogation” appears too speculative at this point in the litigation. Simply stated, without more evidence, the Court must find that the burdensomeness of this modern regulation appears proportionate to the burdensomeness of its historical analogues.
In this regard, based on better briefing by the State Defendants (and in the absence of testimony at the Preliminary Injunction Hearing), the Court reconsiders its prior ruling on this issue (in its Decision and Temporary Restraining Order of October 6, 2022), and denies Plaintiffs’ motion for a preliminary injunction with regard to this regulation.
Suddaby’s decision also allows the prohibition on concealed carry in playgrounds (but not parks), daycare centers, libraries and nursery schools; finding that those places are close enough to historical prohibitions on carrying firearms on school grounds to withstand constitutional scrutiny.
While the judge’s decision isn’t perfectly in line with what plaintiffs were asking for, it’s still a big win for Second Amendment advocates. Now the question is what will the Second Circuit do with Suddaby’s opinion? The state’s appeal will likely come quickly, and then the appeals court will have to decide whether to let the injunction stand as it is or reverse some or all of the district court decision. In the meantime, life will be a little easier for those who already possess a permit to carry in New York, but those hoping to exercise their right to bear arms for the first time are still going to deal with some unreasonable (and I’d argue unconstitutional) demands.
Latest New York Gun-Carry Law Ruled Unconstitutional Too
A federal judge has found the bulk of the gun-carry law New York instituted in response to the Supreme Court striking down its previous law also violates the Second Amendment.
On Monday, Judge Glenn Suddaby of the Northern District of New York issued a preliminary injunction blocking enforcement of the law’s most controversial provisions. He also refused to issue a stay on his decision to enjoin what he described as a “patently unconstitutional” law, which means the state will not be able to enforce the impacted rules unless and until a higher court intervenes.
“[A]lthough the Court in no way suggests that America lacks a historical tradition of firearm-licensing schemes, it finds (based on the current briefing of the parties) that America lacks a historical tradition of firearm-licensing schemes conferring open-ended discretion on licensing officers,” Judge Suddaby wrote.
The ruling found the state could not force gun-carry permit applicants to turn over information on their family members or their social media accounts. It stops the state from subjectively denying applicants based on whether officials believe they have a “good moral character.” And it prevents them from banning anyone, including those with permits, from carrying a gun at restaurants that serve alcohol, theaters, protests, places of worship, banquet halls or conference centers, parks, areas at airports or clinics before security checkpoints, and public buses. Suddaby also ruled the state’s attempt to prohibit gun carry on all private property unless explicitly allowed by the owner, including private businesses open to the public, by default was unconstitutional.
The decision brings New York’s gun-carry restrictions closer in line with the rest of the country. It also represents the latest setback for New York’s new gun law and Governor Kathy Hochul (D.), who backed it as a rebuke to the Supreme Court’s decision in New York State Rifle and Pistol Association (NYSRPA) v. Bruen. A second federal judge has already blocked the law’s church-carry prohibition in the Western District, and a group of armed Jewish worshipers is challenging it in the Southern District. The law’s constitutionality took center stage in the recent debate between Hochul and challenger Lee Zeldin (R.) as polls show a much tighter-than-expected contest.
Gun Owners of America, one of the plaintiffs in the case, celebrated the decision as a rebuke of Hochul and the law.
“Just like we warned politicians after the Bruen decision, fall in line, or we will force you to,” Erich Pratt, the group’s senior vice president, said in a statement. “We are excited to see Kathy Hochul finally served a plate of humble pie, and we are fully prepared to continue the fight should she again attempt to disarm the citizens of her state at a time when her party’s policies are only escalating the danger that everyday citizens face.”
The news from the decision wasn’t all bad for Hochul, though. Judge Suddaby removed her as a defendant in the case and allowed the subway ban to remain in effect because he found plaintiffs didn’t have standing to sue her or the train ban. He also allowed the state’s strict training requirements to remain in place despite expressing concern about the potential cost of complying with it.
A spokesperson for the office of Attorney General Letitia James (D.), which is representing the state in the case, said “we are reviewing and considering our options.” The state previously appealed the judge’s decision to issue a temporary restraining order against the law that shared many of the same conclusions in his preliminary injunction.
Judge Suddaby’s lengthy ruling, clocking in at 184 pages, examines the historical evidence offered for each of New York’s regulations at length. Suddaby even describes how he performed his own research for potential historical matches for some of the provisions when the state failed to offer them. For instance, the judge said the state offered no comparison for its social media reporting requirement, and what his research found did not help their case.
“Rather, the Court has mostly found only instances in which this demand was (properly) made of convicted sex offenders while registering for a Sex Offender Registry,” he wrote. “Suffice it to say, the need to regulate convicted sex offenders has not been shown to be analogous to the need to regulate applicants for a concealed-carry license.”
Suddaby is also often unsubtle in his critique of the attempts to identify historical analogues the state did make.
“For the sake of brevity, the Court will not expound on why it finds that barring some people from openly carrying rifles on other people’s farms and lands in 19th century America is hardly analogous to barring all license holders from carrying concealed handguns in virtually every commercial building now,” he wrote. “Even if the way the historical and modern regulations burdened one’s Second Amendment right were the same, the State Defendants’ attempt to analogize these six laws to Section 5 of the CCIA would stumble over the second of the Supreme Court’s two ‘central’ metrics: ‘why the regulations burden a law-abiding citizen’s right to armed self defense.’”
He further argued the state’s attempt to ban is a “thinly disguised version of the sort of impermissible ‘sensitive location’ regulation that the Supreme Court considered and rejected in NYSRPA.” He said the state’s provision banning licensed individuals from carrying at any public protest was doubly unconstitutional, creating a “paradox” implicating both the First and Second Amendments.
“[T]he Court finds itself in a paradox created by a regulation that prevents a license holder from possessing a handgun while gathering with individuals to collectively express their right to protest the regulation by possessing handguns,” he wrote. “Levity aside, the Court does not understand how barring Plaintiff Terrille from carrying concealed at a gun show at a Polish Community Center would further this regulation’s purpose of avoiding the ‘destr[uction] [of] the exercise of [someone else’s] constitutionally-protected rights.’ The Court could be wrong but it will hazard a guess that the Center probably does not lease space to opposing expressive groups at the same time.”
Ultimately, Suddaby ruled many of the provisions in New York’s law are “unreasonably disproportionate to the burdensomeness of [their] historical analogues” and is filed with “unprecedented constitutional violations.”
Gun Control vs. Gun Rights: The State of Play
Two trends that are reflected in recent state and federal gun legislation. One trend stems from the New York State Rifle and Pistol Ass’n Inc. v Bruen ruling in June, the other from the New York’s Concealed Carry Improvement Act passed in response to Bruen.
Bruen’s Domino Effect
In Bruen, the U.S. Supreme Court found that New York State’s concealed carry law was unconstitutional because it required “proper cause” for an individual to obtain a concealed carry permit. As a result, a new precedent was set for Second Amendment legislation, with many states’ gun control laws now challenged. The National Association for Gun Rights has sued several states and cities to end their assault weapons bans, including the Illinois cities of Highland Park and Naperville along with the states of Connecticut, Massachusetts, Colorado, and Hawaii. The Connecticut Citizens Defense League, along with two former Connecticut corrections officers and a firearms instructor, have also filed a lawsuit against the Connecticut assault weapons ban. In Colorado, a judge recently blocked an assault weapons ban following a lawsuit filed by the Rocky Mountain Gun Owners. Bruen was also cited by a judge in West Virginia who abolished a federal law requiring firearms to have serial numbers, and by a judge in Texas who ruled that citizens under criminal indictment retain the right to bear arms.
New York’s Concealed Carry Improvement Act’s Domino Effect
However, Bruen’s no-tolerance stance did not deter Governor Kathy Hochul in her push for more gun control legislation. In July, Hochul signed the Concealed Carry Improvement Act (CCIA). This legislation makes it illegal to carry a gun in public places such as churches, schools, subways, and Times Square. It also makes issuing concealed carry permits dependent on completion of hours of training, along with the review of every applicant’s social media activity from the past three years. Gun rights advocates immediately won a temporary restraining order against New York’s new law, but a federal appeals court lifted the restraining order a few weeks ago.
California bill similar to New York’s CCIA failed to pass the legislature by one vote. In early October, New Jersey unveiled its version, which includes stipulations such as disqualifying conceal carry applicants who have past restraining orders or other “character of temperament concerns,” (similar to the CCIA’s “good moral character” requirement which has been accused of having racist roots) and requirements for permit holders to carry insurance to protect against accidental discharge.
As we approach the 2022 midterm elections, Biden once again amped up calls to Congress to pass an assault weapons ban, Stacey Abrams vowed to roll back Georgia’s permitless firearms carry law, and candidates like Illinois senator Tammy Duckworth and Connecticut governor Ned Lamont support assault weapons bans. Politicians such as Governor Lamont have also recently referred to the overwhelming public support of gun control.
HARTFORD — Attorney General William Tong warned Friday that Connecticut’s nearly three-decade-old ban on semi-automatic weapons is “at very real risk” of being lifted, at least temporarily, after one of several groups suing to overturn the law requested that the state be prevented from enforcing its ban while the case proceeds.
The motion for a preliminary injunction was filed Thursday by attorneys for the National Foundation for Gun Rights in a federal court in New Haven. The Colorado-based group is one of several plaintiffs that filed lawsuits against Connecticut’s semi-automatic weapons ban following a Supreme Court decision striking down New York’s gun-permit law, sparking a wave of litigation against other state bans.
“I don’t have to tell you how extraordinarily dangerous this is in this moment to see an immediate repeal of the semi-automatic weapons ban,” Tong said during a hastily assembled press conference on Friday, where he was joined by Gov. Ned Lamont. “We are going to fight tooth and nail, we’re going to throw everything we have at them to keep Connecticut families safe and to preserve our very strong gun laws.”
Tong’s office has yet to file its formal response to the group’s motion. He told reporters Friday that filing would be made “soon.”
In a statement Friday, NFGR President Dudley Brown defended the group’s lawsuit, saying “The day of reckoning for the State of Connecticut has come, and it’s time for them to answer to the Second Amendment for trampling the gun rights of their law-abiding citizens.”
“Our motion for preliminary injunction is simply saying that when rights are at stake, we cannot waste another day in allowing unconstitutional gun control to stand,” Brown said.
Columbus city claims that since it’s a ‘home rule’ city, that the Ohio legislature is blocked from passing certain laws affecting city goobermint.
Court Injunction Temporarily Blocking Expanded Self-Defense Ohio Gun Law
A court injunction is now temporarily blocking part of Ohio’s expanded self-defense gun law. A Franklin County judge has granted the preliminary action, limiting House Bill 228, which was originally passed in 2018.
The injunction stems from a lawsuit filed by the City of Columbus, blocking a section of the law that partially prohibits Ohio cities from passing local gun control ordinances.
Other portions of the law that eliminate some duties to retreat before legally using a firearm in self-defense are still in place
Actually, this is another reason for laws that ban such civil suits when either the prosecution declares it a case of self-defense, or the person is acquitted at trial, as is the case in several states already.
You would be wrong if you figured Kyle Rittenhouse’s legal battle ended when a court acquitted him of murder and other charges for justifiably shooting 3 men in self defense. This is yet another example of why, if possible, avoiding conflict is always the wisest action.
Rittenhouse’s Defensive Gun Use in Kenosha—
So most everyone knows what happened on August 25, 2020 at a Black Lives Matter protest in Kenosha, Wisconsin. Any reasonably, non-biased view of the facts in the case clearly illustrates that Rittenhouse acted in self defense when he shot 3 men; one who chased after him and tried to disarm him of his rifle, another who chased after him, swinging a skateboard attempting to strike Rittenhouse in the head as Rittenhouse lay on the ground, and another man who ran toward Rittenhouse pointing an illegally possessed handgun at him.
The Criminal Charges Brough Against Rittenhouse—
In a clearly political move, prosecutors charged Rittenhouse. Knowing they had no way of winning, prosecutors used the public trial to gaslight the public into believing Rittenhouse was an alt-right neo-nazi. An assertion proved erroneous. The point was not to convict Rittenhouse, which they couldn’t, but to demonize him. And then anyone who would dare to believe that someone had the right to defend themselves. If you believed what Rittenhouse did was not wise, but clearly justified, you too were an alt-right nazi. Of course, the media and maniacs in the streets even threatened the jurors with doxing and rioting if they ‘decided wrong’.
Rittenhouse legally defended his life against three men in the streets of Kenosha. He defended his freedom against a politically motivated prosecutor in a court of law. Kyle defended and continues to defend his reputation against baseless accusations. And he is trying to protect whatever assets he has after paying for legal defense, to defend against a civil suit brought against him by the family of one of the men who tried to kill him.
The Civil Suit Against Rittenhouse—
The father of an adult who attacked Rittenhouse with a skateboard wants money. No doubt he grieves for his son. Any decent father would. But the arguments in this civil suit against Rittenhouse are nonsensical and proven false in the criminal trial.
The Deceased Attacker is actually a Hero—
For example, in the suit, the father claims his son was a “hero” and was trying to disarm Rittenhouse. The claim in the criminal trial was that somehow the 3 men were ‘good samaritans’ who thought Rittenhouse was an active shooter, and they needed to stop him. A claim that prosecutors couldn’t substantiate with evidence, witness statements or ‘victim’ testimony. The complaint filed by the man’s father reads:
After Anthony was shot, Gage Grosskreutz approached Defendant Rittenhouse with his hands up, pleading with him to stop his shooting rampage. Without provocation or any legal justification, Defendant Rittenhouse shot at Grosskreutz from point-blank range, hitting him in the arm. Thankfully, Grosskreutz survived.
Yeah, this description of events is complete fantasy when compared to all the evidence presented at trial.
Rittenhouse is an alt-right Nazi—
The complaint also attempts to use the same failed approach prosecutors used in the criminal trial—frame Rittenhouse as a racist. The ‘you’re a racist’ argument works on social media. But the same question that the prosecutors couldn’t provide an answer to in the criminal trial lingers. If Rittenhouse is so blinded by racial hatred, why did he only shoot people of his same race? The answer is clear, because he only shot people who he reasonably believed were going to cause him death or serious bodily harm, period.
Rittenhouse Violated Statutory Gun Law—
In the complaint, the attacker’s father drummed up fake news spread by the media that Rittenhouse brought the AR15 he used to defend his life across state lines in violation of law. The morons in the media repeated this, although with basic journalistic investigation, they would find the claim completely untrue.
What’s the Point—
The point is that if you carry a firearm for self defense; you need to know that in some states, even if you’re acquitted, you can still face civil suits. While the saying may be true, that ‘dead men don’t sue,’ it fails to mention that their families do. And they do it all the time.
You also need to remember that whether it be a criminal or civil trial, you can assume that anything the opposing side can do to twist, invent, or bring into question your character or actions, they will. It doesn’t have to be true.
So my advice is:
- Live your life in a way that always seeks avoidance, if possible. This post on the proper defensive mindset explains this concept more deeply. In essence, live out: Romans 12:18 If it be possible, as much as lieth in you, live peaceably with all men.
- Be careful what you post on social media. This isn’t about censoring your right to speak. Say what you want to say, it’s your right. Stand up for what you believe in. But do so in a way that doesn’t bring your character into question.
- Know the law. Not just gun law, but self defense law. The book from Andrew Branca is a must for every person who even thinks about carrying a gun for self defense.
- Consider a self defense legal membership service like CCW Safe. The amount of money necessary to defend against a political prosecution, and or civil lawsuit is astronomical. Remember, the state has unlimited funds (part of which you pay for, if you pay taxes) available to use against you. How much money do you have to defend yourself?
Another Church in New York files suit
New York Church Challenges State Ban on Firearms in Houses of Worship
New York Church Challenges State Ban on Firearms in Houses of Worship
First Liberty Institute, Clement & Murphy, and Ganguly Brothers challenge law adopted by NY legislature just days after Supreme Court struck down numerous state restrictions on firearms
Rochester, NY—First Liberty Institute and the law firms Clement & Murphy PLLC and Ganguly Brothers PLLC filed a federal lawsuit against the state of New York challenging the state’s prohibition on firearms at houses of worship. The suit was filed on behalf of His Tabernacle Family Church, a nondenominational Christian church in Horseheads, New York, founded by Pastor Micheal Spencer.
You can read the complaint here.
Erin Murphy, Partner at Clement & Murphy said, “No American should be forced to sacrifice one constitutionally protected freedom to enjoy another. Houses of worship have a constitutionally protected freedom to decide for themselves whether to allow otherwise legally possessed firearms into their facilities.”
“Singling out houses of worship for total disarmament demonstrates hostility toward religion, leaves them defenseless to rebuff violent attacks, and defies at least two recent Supreme Court rulings against New York. Religious leaders are no less qualified than secular business owners to determine whether to allow carrying a firearm for self-defense, and New York should end its defiant assault on First and Second Amendment freedoms,” added Jordan Pratt, Senior Counsel at First Liberty Institute.
In late 2020, the Supreme Court issued its opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, chiding New York for singling out religious groups and restricting how they worship in violation of the First Amendment. And in June 2022, the Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, invalidating New York’s unprecedented effort to limit individuals’ ability to carry a firearm outside the home. Just days later, New York enacted expansive new laws restricting the carrying of firearms outside the home, including a total ban on carrying in houses of worship. New York now imposes criminal liability on any person who carries a firearm into a place of worship regardless of whether that person possesses a license to carry a firearm under New York law, and regardless of whether the religious community would prefer to authorize congregants to carry a firearm. Secular business owners, by contrast, are allowed to choose for themselves whether to allow firearms on their premises.
“Those decisions,” the complaint states, “should have taught New York to proceed with extreme caution where First or Second Amendment rights are at stake going forward. Instead, the state recently doubled down on its rights-denying tendencies—by infringing two fundamental liberties at the same time. New York now puts houses of worship and religious adherents to an impossible choice: forfeit your First Amendment right to religious worship or forfeit your Second Amendment right to bear arms for self-defense.” The complaint adds, “New York’s attempt to force houses of worship and their parishioners to choose between their First Amendment rights and their Second—an outlier policy shared by no other state in the Nation—stands as an act of defiance to the Supreme Court’s recent and emphatic holdings protecting both.”
Well, he’s just going to have to rethink his problem.
Obama-appointed judge takes issue with Bruen decision
U.S. District Judge Carlton Reeves, who was appointed to the bench by then-President Barack Obama back in 2010, is using a case involving a convicted felon caught with a gun to complain about the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, arguing that the Court’s decision has left him wondering if he needs to appoint an historian to help him determine the legality of the federal prohibition on felons owning firearms.
“This court is not a trained historian,” Reeves wrote in an order released last week.
“The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued.
“And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.
The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”
Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days.
“Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter,” he said.
The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment.
“Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.
No offense to the judge here, but if he’s the only member of the federal judiciary who’s felt the need to officially bring an historian into a case involving the Second Amendment then maybe the problem isn’t with the Bruen decision but his own viewpoint on the right to keep and bear arms.