Gun Rights Groups Challenge California’s New Firearm Tax
The Second Amendment Foundation (SAF), along with several other gun rights groups and individual plaintiffs, has filed a lawsuit in San Diego County Superior Court challenging California’s recently implemented 11% tax on firearms, gun parts, and ammunition.
The lawsuit, named James v. Maduros, targets Nicolas Maduros, director of the California Department of Tax and Fee Administration.
Gun Owners of America Files Suit Against New Jersey’s “One Gun a Month” Law
The pro-Second Amendment group Gun Owners of America (GOA), along with its sister organization the Gun Owners Foundation, filed suit against New Jersey’s Attorney General Matthew Platkin, challenging him to defend the latest attack on Second Amendment rights in the Garden State.
The attack, clearly an act of derision for and challenge to the Supreme Court’s ruling in Bruen (New York State Rifle & Pistol Association, Inc. v. Bruen) in 2022, was instigated by anti-gun Democrats who used a thinly disguised excuse to pass the law: straw purchases.
Supreme Court Sidesteps Pending Gun Cases
The Supreme Court has decided against providing further guidance on the Second Amendment—at least for now.
The High Court released its final orders list for the term on Tuesday. It featured the Justices’ decision to grant, vacate, and remand (GVR) seven cases dealing with laws prohibiting specific people from having guns back to the lower courts for new decisions. They also vacated and remanded a case dealing with New York’s concealed carry restrictions and denied a request to review a collection of cases on Illinois’ ban on the sale of AR-15s and other popular firearms.
The orders list is the earliest indication of how active the Court plans to be on the Second Amendment moving forward. After a session that featured three gun-related cases—but just one Second Amendment case—the Court’s decision to kick the can on addressing a series of outstanding questions suggests a limited appetite among the Justices for further refinement of its Bruen test at this time.
The Court left little concrete evidence of its thinking in deciding against taking up the pending gun cases. Only the petition denial for the six separate lawsuits challenging the state and municipal “assault weapon” and magazine bans in Illinois featured comments. Justice Samuel Alito noted that he would have voted to review the cases immediately. Meanwhile, Justice Clarence Thomas issued a statement urging the Court to take up the issue once it receives a case that has advanced through the entire appellate process.
“This Court is rightly wary of taking cases in an interlocutory posture,” he wrote. “But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment. We have never squarely addressed what types of weapons are ‘Arms’ protected by the Second Amendment.”
The decision to hold off on reviewing the constitutionality of Illinois’ hardware bans is likely to disappoint gun-rights advocates, who have long sought the High Court’s opinion on bans on popular firearms like the AR-15. However, the Court’s decision to sidestep the question of gun rights for felons and other prohibiting categories is also likely to frustrate the Biden administration.
The Department of Justice (DOJ) had previously asked the Court to address whether the federal gun bans for drug users and felons were constitutional after two separate federal appeals courts struck them down as applied to particular defendants. In United States v. Daniels, the Fifth Circuit held the federal drug user gun ban unconstitutional as applied to a specific non-violent marijuana user. In Garland v. Range, an en banc panel for the Third Circuit struck down the felon-in-possession ban as applied to a man with a 30-year-old conviction for lying to get food stamps.
After the Supreme Court upheld the federal gun ban for people subject to domestic violence restraining orders in last month’s U.S. v. Rahimi decision, the DOJ was unsatisfied with the guidance they offered. It again urged the Court to issue a decision on whether it can legally disarm felons under the Second Amendment.
“Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict,” Solicitor General Elizabeth Prelogar wrote.
“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” she added. “Under these circumstances, the better course would be to grant plenary review now.”
Instead, the Justices sent Range, Daniels, and five other related cases back down to their respective circuit courts “for further consideration in light of United States v. Rahimi.”
July 3, 2024
BLUF
In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.
Analysis: The Death of Chevron and the Future of Gun Litigation
Friday brought a rare instance of a no-nonsense Supreme Court decision unambiguously reversing prior precedent in a way that has far-reaching consequences–but maybe not for gun policy.
Loper v. Raimondo saw the Court stating, in no uncertain terms, that Chevron, “a decaying husk with bold pretensions,” is overruled. Twitter–and my email inbox–were ablaze with theories about what this might mean for gun litigation. In all likelihood, though, the impact on Second Amendment cases will be more muted than many expect.
It’s easy to understand why people might think Chevron would have had an outsized impact on the firearm space. After all, it seems as though the ATF–an administrative agency–has been the primary source of tumult for gun owners over the last three administrations. Where an admin agency is the source of pain, it seems natural to presume a legal concept that advantages administrative agencies would be a huge lever in that conflict. But practitioners and astute spectators alike would observe that Chevron hasn’t been invoked in the gun space very often at all.
Simply stated, Chevron’s death won’t be as dramatic as some commentators expect in the gun law arena largely because the ATF has been expressly disclaiming and attempting to avoid its application for years. Likely knowing Chevron was on shaky ground, and because its application to laws with criminal penalties is inappropriate, the government has fairly consistently simply asserted in gun cases that its legal arguments are ordinary legal arguments rather than agency arguments entitled to deference under Chevron.
To understand the tension here, it’s important to understand what Chevron actually did. Even when it was at its strongest, the application of Chevron was limited to situations where the statutory provision being litigated over was ambiguous, and there was a “permissible” agency interpretation. In those instances, the court would defer to the agency’s interpretation of the law, even if the court disagreed with the interpretation.
Chevron was always controversial, as it was in tension with the core legal principle that courts are the only ones who can say what the law is. That’s why the Supreme Court began walking Chevron back almost as soon as it was decided.
In fact, the Supreme Court hasn’t deferred to an agency interpretation under Chevron since 2016.
More pointedly, though, there is a critical reason you won’t see the government arguing that gun laws are ambiguous, which had always been a threshold question in Chevron cases. Why? Because gun laws almost always involve criminal penalties, and the longstanding rule of lenity states that in cases involving criminal consequences, any ambiguities in the law must be resolved in the least restrictive manner. This would make the road to proper reliance on Chevron, on the part of the government, a minefield of instant losses.
That is not to say that the death of Chevron won’t have any impact on gun litigation. But it will most likely be more nuanced than revolutionary.
For example, as explained, the ATF has been making its legal arguments for years now by basically saying, “this is how you ought to read the law, even if you weren’t deferring to us.” Even where Chevron wasn’t supposed to be applied, including in criminal cases, it’s quite likely the overarching idea of Chevron–that administrative agencies are experts and thus know more about the laws they are tasked with–has poisoned the minds of judges all the way down, manifesting as subconscious deference to the agency’s interpretation of the law.
This vestige of Chevron is probably the most lasting, and unfortunately–as the dissent in Loper makes clear–that idea will be very hard to shake. The simple fact is, though, that no matter how technical a statute is, they are meant to have come through the legislature, which is–for better or for worse–a bunch of lawyers. While nerdy, lobster-clawed science-types at the EPA might have nuanced understandings when it comes to sniffing nitrogen, that doesn’t change the fact that laws have to be consistently interpreted.
In short, the death of Chevron may be good for the state of the law as a whole, but it’s not the magic bullet some gun rights commentators seem to think it is.
So 3, 4 or 5 years down the road, after the cases are appealed at the 7th circuit – again – SCOTUS might take an appeal. The ultimate purpose of the Supreme Court was to decide ‘cases and controversies’, and yet, they kick the can down the road, to what end, who knows.
U.S. Supreme Court Declines to Hear Challenges to Illinois Assault Weapons Ban
The U.S. Supreme Court has declined to hear a series of challenges to Illinois’ ban on assault weapons, leaving the controversial law in place for now but indicating potential future involvement, WTTW and The Center Square are reporting. The decision comes after the Seventh Circuit Court of Appeals upheld the ban last November, stating that “even the most important personal freedoms have their limits.”
In a Tuesday order, the high court denied petitions for writs of certiorari in six cases challenging the ban. Justices Samuel Alito and Clarence Thomas dissented, expressing a willingness to take up the issue once the cases reach final judgment. Justice Thomas wrote, “if the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can — and should — review that decision once the cases reach a final judgment.”
The Illinois ban, part of the Protect Illinois Communities Act, was enacted in response to the tragic mass shooting at a Highland Park July 4 parade in 2022, where a gunman using an AR-15-style rifle killed seven people. The law prohibits the purchase and sale of firearms and accessories classified as assault weapons and imposes limits on magazine capacities for both handguns and long guns. Existing owners of these firearms were required to register them with the Illinois State Police by the end of 2023.
Justice Thomas criticized the Seventh Circuit’s decision, calling it “nonsensical” and arguing that common semiautomatic firearms like the AR-15 are protected under the Second Amendment. He cited his dissent in a similar 2015 case, Friedman v. City of Highland Park, to support his position.
The Supreme Court’s refusal to hear these cases leaves unresolved a significant legal question about the extent of Second Amendment protections. The Seventh Circuit’s ruling found that the guns and high-capacity magazines regulated under the Protecting Illinois Communities Act “lie on the military side of that line and thus are not within the class of Arms protected by the Second Amendment.”
Justice Thomas responded, “In my view, Illinois’ ban is ‘highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes,’” adding that it is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not “Arms” protected by the Second Amendment.
While this decision denies immediate relief to the challengers, it sets the stage for a potential future Supreme Court review. The focus now shifts to the Southern District of Illinois federal court, where four consolidated gun ban challenges are expected to move forward with a bench trial scheduled for September 16 in East St. Louis.
July 2, 2024
1776 – The Second Continental Congress passes the “Lee Resolution for Independence” declaring that the Thirteen United Colonies were free and independent States, separate from the British Empire.
Aren’t Gun Rights a Valid Presidential Debate Topic?
While Thursday night’s presidential debate was agonizing for many Americans to watch, President Joe Biden and former President Donald Trump did address some important issues ranging from our porous southern border to abortion to the downward spiraling economy.
What was glaringly absent, however, was any discussion of gun control and the Second Amendment-protected right to keep and bear arms.
Call me cynical, but I believe that was by design. CNN, which hosted the debate, is a media standard bearer for all things gun control. In fact, the network hasn’t seen a restrictive gun proposal that it hasn’t embraced. And both Biden and Trump have spoken out often on the matter, just like they have on other issues, leaving little doubt where they stand on the right to bear arms.
So why weren’t there any questions asked on this issue that is so important to many American citizens? I believe it was because CNN and others in the gun-ban community know they are on the wrong side of the issue. And with Biden’s diminished mental capacity, the network and whoever helped it choose questions for the debate simply were afraid of what ignorant things the president might say about firearms.
Perhaps they thought he might spout off one of the standard soundbites he has used multiple times in the past. Phrases like, “Deer don’t wear Kevlar vests,” (duh!) and, “Nobody could own a cannon during the Civil War period,” (an outright lie) don’t engender a lot of trust in a leader. And such answers would likely have drawn a quick—and probably humorous—response from Trump.
Perhaps CNN was worried he would say something about “military-grade assault weapons” when talking about common semi-automatic rifles, or even that the firearm industry is the “only industry in America that has immunity”—both well-debunked falsehoods. Or maybe they thought he’d revert to the old chestnuts that you don’t need: “20, 30, 40, 50 clips in a weapon”, “magazines that can hold multiple bullets in them” or a “magazine with 100 clips in it.”
Fact is, Biden is quite possibly the most anti-gun president in history, as well as arguably the worst. Of course, we’ve chronicled his anti-gun schemes many, many times here at TTAG.
He wants to ban common guns and magazines, let gun companies be sued into oblivion for criminal use of their legally made and marketed products and make a background check mandatory even for private gun sales between family and friends. His ATF has made things so difficult for gun dealers that many have left the business to avoid persecution, and he even created a so-called White House Office for Gun Violence Prevention to help enable anti-gun state legislators to push his gun-ban schemes at the state level.
While I can’t say Trump was the most pro-gun president in history, except for the ill-conceived bump stock ban, he was a pretty good friend to gun owners. And his federal judicial nominations at the circuit court level and to the U.S. Supreme Court have enabled many Second Amendment victories that we wouldn’t have won with a Democrat in the White House instead of Trump.
His recent speech at the NRA Annual Meetings and Exhibits in Dallas gives us some food for thought.
“Let there be no doubt, the survival of our Second Amendment is very much on the ballot,” Trump told the crowd gathered there. “We need the [Second Amendment] for safety. Because you know the bad guys are not giving up their guns…
“The NRA has stood with me from the very beginning. And with your vote I will stand strong for your rights and liberties.”
In the end, questions about gun control, like questions about nearly anything else, would have been losing questions for the sitting president. And while the debate was a pretty fair one, CNN chose to avoid asking Biden about his gun policies because it likely would have made him look even worse.
That omission is a true tragedy in a day and time when advocates of freedom constantly battle at all levels of government to retain our right to keep and bear arms as protected by the Second Amendment. Many people I know are one-issue voters. And that issue—a very important one to many people—wasn’t even discussed Thursday night.
Violent attack at Chicago beach involving concealed carry license holder leads to arrest
CHICAGO (WBBM NEWSRADIO) — A 17-year-old girl has been arrested after a violent attack at Chicago’s 31st Street Beach, police said.
Chicago police accused the 17-year-old of stabbing a 26-year-old woman during an argument on Saturday night.
It happened shortly after 11:30 p.m. at South Fort Dearborn Drive. According to police, the teen took a sharp object and stabbed the woman in her right arm.
The 26-year-old woman, a valid Concealed Carry License and Firearm Owner’s Identification cardholder, then shot the teen in the left shoulder.
They were both transported to hospitals in good condition.
Saturday’s attack was the latest in a string of shootings that have prompted aldermen to crack down on violence near 31st Street Beach.
NBC News Wants to Teach You How to Store Guns Correctly
I grew up watching NBC News because our local TV station was an NBC affiliate. We’d hit the local news, followed by the network news.
It wasn’t until I was a fair bit older–older than I’d like to admit, really–when I realized just how biased NBC News actually was. It was kind of jarring.
They’re especially bad about issues like guns, and I cringe every time I find an article from them on the topic. It’s usually not likely they’ll speak with anyone who understands them and when they do, they aren’t exactly flattering.
So when I saw they published a piece on gun storage, well, I was prepared to be disappointed. Especially when it talked about “experts.” That usually means anti-gun mouthpieces who have never even touched a gun without fainting, so the advice is going to be geared to make guns as useless as possible. That…didn’t happen.
Instead, it’s a sober, reasonable discussion of various methods of gun storage, some of their pros and cons, and mostly just leaves it there.
Yes, it cites studies that claims most gun owners aren’t securing their guns, but those are the studies that are out there. I’m not going to fault the writer for going there when that’s the information available.
This is perhaps the most troubling part of the piece:
Twenty-six states and Washington, D.C., have safe-storage laws that punish gun owners if a child accesses an unsecured firearm. These laws have drawn support from gun safety advocates and the U.S. Surgeon General, but they’re opposed by gun rights groups that argue people should be free to decide when and how to secure their weapons.
That’s not quite how the debate falls–mandatory storage laws have a bad habit of getting in the way of someone’s self-defense needs, which is why gun rights advocates oppose them–so this bit presents a bit of the writer’s bias, but this is someone working for NBC News.
Nothing about this is surprising.
Yet from here, it’s just a brief discussion of some of the gun storage options out there. It’s very brief, so a lot of nuance is missing, and there seems to be a phobia about guns loaded, but it’s not the most terrible article on the topic I’ve ever seen.
So that leads me to wonder why NBC News never thought to write it before.
Oh, I get that Surgeon General Vivek Murthy made headlines recently talking about this as a small part of his overall desire to see our gun rights stomped on, but there was no reason not to discuss this a lot earlier.
We have a reach here at Bearing Arms. The other gun rights sites out there do as well, and ours may well be more targeted than NBC News ever would be, but they have a broader reach and they can speak to the more casual gun owner.
They could have hit this years ago. They could rehash it regularly, even, just to make sure that people know what their options actually are.
Why didn’t they?
For people who seem to believe they have the duty to change the world, this is a simple thing they could have done ages ago.
This is the intellectual level of the teachers infesting our schools indoctrination centers today, Vapid, isn’t strong enough.
Arming teachers pic.twitter.com/S9szKs9DPG
— Dr. Annie Andrews (@AnnieAndrewsMD) July 1, 2024
Trump Wins: Supreme Court Says Presidents Covered by Immunity for ‘Official Acts’
The U.S. Supreme Court ruled in favor of former President Donald Trump on Monday, holding in a 6-3 decision that presidents are covered by limited immunity from criminal prosecutions for actions taken while in office.
The decision is here.
The Court held, according to the summary of the decision:
Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
The Court also ruled that a president is entitled to a pretrial hearing on immunity that can be appealed all the way to the Supreme Court before a trial begins.
This means that any trial of the former president will take place after the November 5, 2024, election.
Chief Justice John Roberts, writing the opinion for the Court’s conservative majority, said:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.…
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.
The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
How often do Americans use guns in lawful self-defense? It’s a difficult question to answer, in part because many who send a criminal to flight by merely demonstrating they are armed, never report the incident. The same is true for many who brandish their handguns, or even point them at criminals, instantly convincing them running for their lives is the better part of valor.
Refusing to report is surely common in blue states, where law-abiding citizens can be virtually certain if they report lawful self-defense, they’re far more likely than the criminal that forced them to defend themselves to be arrested and prosecuted. Even in red states, many don’t want to take the chance.
Another factor that has become obvious during the Biden administration is as many as 7,000 police agencies—surely most if not all blue—have stopped reporting crimes, particularly violent crimes. This represents about a 35% reduction in the number of cities reporting crimes. No reports of crime, no crime exists, and leftists can claim huge reductions in violent crime even as they decriminalize crime and refuse to prosecute criminals.
There have, however, been a number of studies whose results are revealing. The Clinton administration conducted such a study, secure in their belief the results would conclusively prove lawful self-defense with guns was rare, a result they planned to use in pushing even more gun control schemes. To their horror, they found as many as 1.5 million such cases per year. They tried to hide the result, but it eventually leaked. Another study, which, to the horror of anti-liberty/gun cracktivists has stood the test of time and every attack, indicates as many as 2.5 million defensive gun uses per year, and in only 8% of those cases, was it necessary to shoot the criminal attacker. In 82% of cases, merely revealing a handgun and/or demonstrating the will to use it were sufficient to end an attack. In such cases, we can never know if the criminal was intent on robbery, rape, kidnapping or even murder.
The Centers For Disease Control have long been prohibited by law from using taxpayer dollars to advocate for gun control, which has not, of course, stopped them. A recent CDC report has been revealed to be ridiculously unprofessional and invalid. Conducted entirely by telephone, it had these four primary problems:
1. They were unable to determine whether firearms were stored loaded or unloaded during the phone interviews.
2. They were only able to obtain data from the eight states, which is statistically meaningless.
3. Some respondents did not want to disclose whether they had a firearm in their home.
This is surely a major factor in that Americans have never been more mistrustful of the government, particularly when speaking about gun ownership.
4. All of the data was self-reported to the researchers, and therefore “subject to social desirability and recall biases.”
One might also wonder why the CDC, which is ostensibly supposed to be dealing with disease vectors, should be spending time and money on an incompetently done telephone survey about gun storage in the home. As one might imagine, the survey ignored lawful defensive gun uses, the need for which is one of the primary reasons Americans keep firearms in their homes. By the way, the CDC was forced to admit the aforementioned flaws.
Why would anyone want to suppress the truth about lawful, defensive gun uses? They do irreparable damage to the anti-liberty/gun narrative, which holds guns are inherently evil, and so are those who own them. They have the mystical power to compel their owners to murder. Guns exist only to kill the innocent—that would be leftist favored victim groups–and far fewer people own guns than the “gun lobby” claims, yet guns are everywhere, are responsible for unimaginable carnage and must be banned. Despite there being few guns, anyone owning a gun is virtually certain to kill a family member, despite firearm accidents being at a 100 year+ low.
There’s no logic or reproducible results supporting anti-liberty/gun “research,” which is why those that advocate that position simply resort to lying, which lies are eagerly and uncritically trumpeted by most of the media. Fortunately, Americans have wised up. For nearly 60 consecutive months, they’ve bought more than a million guns a month. They may not be willing to tell the government how many guns they own or how they use them, but they’re more than willing to use them to protect their families, and if necessary, to preserve our representative republic.
That’s what really scares our self-imagine elite.
July 1, 2024
Comment O’ The Day – ‘Publius’
Do you want to understand the significance of Chevron in as concise a manner as possible?
Here it is:
Nobody ever elected Fauci or Birx. And for every Fauci or Birx you know, there are a thousand just like them that you don’t know lurking in every nook and cranny of your over-regulated life.
That. That’s it. That’s why it was essential to overturn Chevron.
BLUF
So there you are. A return to the rule of law, being treated as just the opposite. Par for the course in today’s political discourse, alas.
The Supreme Court, Chevron, and the Political Class’s Worst Nightmare: Accountability.
Goodbye, Chevron deference. Larry Tribe is already mourning the Supreme Court’s overturning of NRDC v. Chevron, in the Loper Bright and Relentless cases, as a national catastrophe:
Oh, the humanity!
Well, speaking as a professor of Administrative Law, I think I’ll bear up just fine. I’ve spent the last several years telling my students that Chevron was likely to be reversed soon, and I’m capable of revising my syllabus without too much trauma. It’s on a word processor, you know. As for those academics who have built their careers around the intricacies of Chevron deference, well, now they’ll be able to write about what comes next. And if they’re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.
And that wasn’t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class’s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.
Sure, Norm, whatever you say.
But how about let’s look at what the Court actually did in Chevron, and in the Loper Bright and Relentlesscases that overturned it, and in SEC v Jarkesy, where the Court held that agencies can’t replace trial by jury with their own administrative procedures, and in Garland. v. Cargill, where the Court held that agencies can’t rewrite statutes via their own regulations. I don’t think you’ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.
At root, Chevron v. Natural Resources Defense Council is about deference. Deference is a partial abdication of decisionmaking in favor of someone else. So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing. I’ve learned that somehow he always seems to pick the best thing.
Deference doesn’t mean “I’ve heard your argument and I’m persuaded by it,” (though something like that is misleadingly called “Skidmore deference, “ but isn’t actually deference at all). Deference means “even if I would have decided this question differently, I’m going to go with your judgment instead.”