Category: Courts

17-State AGs Join Lawsuit Over ATF Rulemaking Against Gun Builds

A coalition of 17 state attorneys general has joined a federal lawsuit challenging Biden administration rules that allegedly violate the Second Amendment by regulating unfinished, non-functional firearm components the same as finished firearms.

The legal action was filed in U.S. District Court for the District of North Dakota. The case is known as Morehouse Enterprises, et.al. v. ATF.

Plaintiffs in the legal action are Morehouse Enterprises,LLC, Gun Owners of America, and Gun Owners Foundation. Attorneys general now participating in the lawsuit are those in Alaska, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.

According to the complaint, plaintiffs are seeking a preliminary injunction “to preserve the status quo,” followed by a declaratory judgment and permanent injunction restraining ATF from enforcing various parts of an omnibus rule scheduled to take effect Aug. 24.

The complaint also alleges the federal Bureau of Alcohol, Tobacco, Firearms and Explosives would have firearms retailers retain their sales records beyond the current 20-year limit, essentially leading to a de facto gun registry.

According to Montana Attorney General Austin Knudsen, one of the AG’s  joined in the lawsuit, “This rule infringes on every American’s right to assemble firearms for their own use – a long-held tradition dating back to the founding of our nation. Criminals will ignore this rule and it will not make Montanans safer. It will, however, shut down firearm companies, allow the government to end online sales of parts, and expand federal access to gun owner data – all without congressional approval.”

In a prepared statement, Knudsen’s office asserted, “If allowed to go into effect, the rule could force firearm manufactures to reduce their workforces or even close their doors. The ATF itself estimated its regulation would shutdown 35 businesses at a cost of $1.1 million. However, the economic costs and burden will likely be much greater: hundreds of millions of dollars of sales could be lost and thousands may lose their jobs if the final rule takes effect.”

A news release from South Carolina Attorney General Alan Wilson, quoted by WDPE, said the rulemaking “threatens the privacy of every gun owner in the country.”

New lawsuit challenges Colorado’s high-capacity magazine ban in wake of Supreme Court’s expansion of gun rights
Rocky Mountain Gun Owners files new Second Amendment challenge in federal court

An organization of gun owners mounted a new legal challenge to Colorado’s nearly decade-old ban on large-capacity magazines Thursday, citing a ruling by the U.S. Supreme Court last month that was seen as a major expansion of gun rights.

The National Foundation for Gun Rights, the legal arm of Rocky Mountain Gun Owners, sued Gov. Jared Polis in U.S. District Court in Denver, asking a federal judge to strike down as unconstitutional the state’s 2013 ban on magazines that hold more than 15 rounds of ammunition, enacted in the wake of the Aurora theater shooting.

The Colorado Supreme Court in 2020 unanimously upheld the ban, ruling in a lawsuit brought by Rocky Mountain Gun Owners in state court that the prohibition does not violate residents’ right to bear arms as guaranteed by the state Constitution.

But with the new challenge — this time in federal court — Rocky Mountain Gun Owners cite last month’s New York State Rifle & Pistol Association v. Bruen ruling, which found a gun-permitting law in New York violated the Second Amendment. The majority interpreted the Second Amendment as protecting people’s rights to carry a gun for self-defense outside the home.

The language in Justice Clarence Thomas’s majority opinion heightened concerns that state gun-control laws across the country, from setting age limits on firearm purchases to banning high-capacity magazines, may now be in jeopardy.

“In last month’s landmark Bruen decision, the U.S. Supreme Court rejected ‘intermediate scrutiny’ — the cost/benefit analysis framework that allowed lower courts to rule against the Second Amendment — and established that the standard for applying the Second Amendment is the text, history and tradition of the right to keep and bear arms; thereby, invalidating the lower court rulings’ justification for gun control,” Rocky Mountain Gun Owners said in its announcement of the lawsuit.

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Missouri Attorney General Schmitt Sues Biden Administration Over Unconstitutional Attempt to Regulate Firearm Parts

JEFFERSON CITY, Mo. – Missouri Attorney General Eric Schmitt today joined a 17-state coalition, submitting a complaint against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Department of Justice (DOJ), and the Acting Director of ATF. The coalition joined Morehouse Enterprises, Gun Owners of America, and Gun Owners Foundation in suing over the ATF’s unconstitutional rulemaking that would regulate firearm parts manufacturers.

“The Biden Administration and the ATF are attempting to regulate unfinished, non-functional firearms parts as if they were complete, assembled firearms. Further, the ATF is taking steps to create a national firearms registry with their proposed rulemaking – not on my watch,” said Attorney General Schmitt. “Missouri values the Second Amendment, and my Office has been steadfast in fighting for the Second Amendment rights of law abiding citizens in the Show-Me State.”

The rulemaking seeks to, among other things, regulate unfinished, non-functional parts as if they were complete firearms.

In addition, the complaint alleges that ATF’s rulemaking takes steps toward the illegal creation of a national firearms registry. It would require firearms retailers to keep all sales records beyond their current 20-year retention requirement and eventually turn them over to the ATF instead of responsibly destroying them. This threatens the privacy of every gun owner in the country.

The lawsuit states, “Under the Final Rule, ATF seeks to vacuum up even more records of gun sales, by mandating that no records of any gun sale (or even non-sales) may ever be destroyed, and that all records of all sales (and non-sales) must eventually be turned over to ATF for inclusion in its digital database of firearm sales.”

Joining Attorney General Schmitt are the attorneys general of Alaska, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Montana, Nebraska, Oklahoma, Texas, South Carolina, Utah, West Virginia, and Wyoming.

A copy of the complaint can be found here: https://ago.mo.gov/docs/default-source/press-releases/complaint-with-states-7-27-to-file.pdf?sfvrsn=3271cbc8_2

The Founders knew all about mass killings which were part of the American experience dating back to the Jamestown, Virginia  colony.

The Next Big Hurdle For Gun Controllers

Gun control lawmakers and activists now face a big problem as they pass dozens of new laws to substantially limit the Second Amendment rights of law-abiding citizens – this new legislation will almost certainly be deemed unconstitutional.

That’s not my opinion. The Supreme Court made it clear in its recent pro–Second Amendment decision. In language that has drawn shockingly little attention, that ruling shows why many proposed gun restrictions infringe on the constitutional right to keep and bear arms.

Before you can even begin a conversation about whether the proposed laws will have any meaningful effect on mass shootings (they won’t), you need to ask whether the gun restrictions are constitutional. Gun-control advocates don’t want the Constitution to get in the way of their policy objectives—but it’s the truth.

And that’s where the Supreme Court’s recent ruling comes in.

In the case of New York State Rifle and Pistol Association v. Bruen, the Court ruled that law-abiding citizens have the right to carry firearms outside the home for self-defense. The Supreme Court explicitly affirmed that the Second Amendment protects twin rights: “to keep and bear arms,” with “keep” meaning to own or possess and “bear” meaning to carry outside the home.

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NCLA Asks Full Fifth Circuit to Toss ATF’s Bump Stock Ban and Reject Deference to the Government

Washington, DC (July 25, 2022) – Today, the New Civil Liberties Alliance filed its appellant brief in the U.S. Court of Appeals for the Fifth Circuit in Michael Cargill v. Merrick B. Garland, et al. This lawsuit could determine who has the constitutional authority to change the criminal law if changes are warranted. The appeals court in June vacated the three-judge panel’s opinion upholding ATF’s legal interpretation and granted en banc review—that is, review by all 17 active judges on the court. Adoption of the rarely used en banc procedure is a sign that the appeals court views the issues in this case as highly important. The Fifth Circuit will be the third U.S. Court of Appeals to hear this issue en banc, but it could be the first to reach the merits. The Tenth Circuit dismissed the en banc over five dissents, and the Sixth Circuit split 8-8 on the questions at stake.

NCLA is seeking invalidation of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Bump Stock Final Rule, in which the agency declared that non-mechanical bump stocks are “machineguns” within the meaning of the relevant statute. Because the Final Rule is not a valid legislative rule, ATF may not seek judicial deference to its statutory interpretation. Moreover, the agency expressly waived any deference claim for the Bump Stock Rule under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Plaintiff Michael Cargill alleges that: (1) the Final Rule conflicts with the statutory definition of a machinegun and thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to the extent that the courts determine that the definition of machinegun is ambiguous with respect to bump stocks, they should apply the rule of lenity to determine that bump stocks are not machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump stocks are prohibited machineguns, then it would be an unconstitutional delegation of Congress’s legislative powers.

The district court’s erroneous construction of the statute has been rejected by a significant majority of federal appellate judges outside the Fifth Circuit who have considered the same question. The best reading of the statute is, in fact, the one espoused by ATF before December 2018: non-mechanical bump stocks are not “machineguns.” A separate NCLA lawsuit, Aposhian v. Garland, also challenges the Final Rule. That suit is pending in the U.S. Supreme Court on a petition for a writ of certiorari.

The current statute, adopted in 1986, prohibits “machineguns” in a manner that does not include non-mechanical bump stocks. The evidence at trial demonstrated conclusively that a semi-automatic rifle equipped with a non-mechanical bump stock is not a weapon that “shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot … by a single function of the trigger.” It is impossible to square the Final Rule’s conclusion that bump stocks are machineguns with the uncontested evidence that every shot fired by a bump-stock-equipped semi-automatic rifle requires a separate “function” of the trigger. Furthermore, it is unlawful for a prosecutorial entity like ATF to rewrite existing law. Congress itself must initiate any change in gun control laws. The Court should enjoin ATF’s brazen effort to enact a new criminal law on its own.

NCLA released the following statements:

“Two appeals courts—the D.C. and Tenth Circuits—have upheld the Final Rule. But they did so only after placing a thumb on the scale by deferring to the Government’s interpretation of the ‘machinegun’ statute. Any court that conducts a truly independent analysis of the statute will quickly discern that bump stocks do not fit within the statutory definition of a machinegun.”
— Rich Samp, Senior Litigation Counsel, NCLA

“Like a majority of federal appeals judges who have weighed in on the merits, NCLA believes the federal statute banning machine guns does not encompass bump stocks. But if there is any ambiguity in the statute, then the rule of lenity still dictates construing the statute in Mr. Cargill’s favor to exclude bump stocks. Under no circumstance may ATF rewrite the statute to create new criminal liability for bump stock owners.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and the case video here.

Download the full document

BLUF
This new law is a blatant attempt to stop people from challenging California’s oppressive firearms laws. It is likely unconstitutional. But will someone be willing to challenge it in court? And even if so, how long will it take for the legal process to play out?

California’s move may also be a sign of things to come from other deep blue states. Now that the Supreme Court has reaffirmed the Second Amendment right to keep and bear arms, expect to see many more frenzied efforts to curtail gun rights by any means, fair or foul.

Analysis: Examining the California Gun Litigation Trap Few Have Noticed

California lawmakers just passed a law that will have an extraordinary chilling effect on Second Amendment rights—and it has received hardly any discussion.
The state’s latest move should scare anyone concerned about protecting the constitutional right to keep and bear arms. The measure can be found toward the end of SB-1327, which both houses of the California legislature recently passed. It awaits Democratic Governor Gavin Newsome’s signature. The goal? To block court challenges to California’s gun laws.
The dry, legalistic language obscures the significance: “Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent [California, local governments, or government officials] from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.”
What does this mean in plain English? If you challenge California’s gun-rights restrictions in court and lose any aspect of the lawsuit, you will be held liable for paying all of the government’s legal fees and costs.
This is a huge matter because the First Amendment affirms the right to “petition the Government for a redress of grievances,” and for more than 150 years, federal law has allowed plaintiffs to sue any level of government (federal, state, or local) for violations of constitutional rights. That is why so many civil rights protections have arisen from court challenges. Think of landmark cases involving free speech, equal protection, and voting rights.
Second Amendment rights, too. Only last month, the Supreme Court affirmed the individual’s right to carry firearms outside the home, all because the New York State Rifle and Pistol Association challenged New York State’s restrictive gun-carry law in court.
That is exactly the kind of case California is trying to thwart.

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Media asking if California’s gun laws will survive

The Bruen decision opened a door. The door is one where many gun control laws in this country, particularly in states like California, will get kicked out of, never to be heard again. The decision laid down a pretty strict test for such laws–did such a law exist at the time of the founding? If not, then it doesn’t survive the text and history standard laid out.

Now, the media is apparently recognizing the possibility

California’s requirement requiring proper cause for people to obtain a concealed weapons permit might not be the last of the Golden State’s gun laws rendered unenforceable by a United States Supreme Court with an expansive view of the Second Amendment, one legal expert says.

Adam Winkler, a constitutional law professor at the University of California Los Angeles School of Law and the author of “Gunfight: The Battle over the Right to Bear Arms in America,” told Nexstar’s KRON that the court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen to overturn that state’s proper cause requirement “clearly affected California in a couple of ways.”

“California has a very similar kind of concealed carry policy as New York,” Winkler said. “The California Attorney General has already issued guidance to law enforcement in California to discount the application of proper cause for concealed carry permits. The second way is that the Supreme Court has in the New York case articulated a new test for Second Amendment cases when gun laws are challenged, and that new test is going to be hard for some of California’s gun laws to survive.”

These include laws such as bans on assault weapons and high-capacity magazines, which Winkler said “could be struck down in the years to come.”

Of course, this is amazing news for our friends in California and in other states with a similar lack of regard for people’s Second Amendment rights.

The truth is, those should be struck down.

See, in California, the push has literally been to prohibit gun ownership by civilians. For example, people there can only buy certain handguns; weapons on a particular list of weapons approved by the state. Yet getting approval is an arduous process that most manufacturers aren’t interested in replicating for every new model.

As a result, the options for guns available continue to dwindle, creating a slow-motion handgun ban in the state, all without actually having to ban handguns.

But there’s no historical precedent for such an effort, which means that based on Bruen, there’s absolutely no way this would survive a legal challenge. I’m just waiting for someone with the appropriate standing to file a lawsuit challenging the law.

And that’s only the tip of the iceberg of what all may soon fall in the Golden State. California has an assault weapon ban, a magazine restriction, and other anti-Second Amendment regulations too numerous to delve into. All of them now come under threat from the Bruen decision.

Frankly, it’s glorious.

This is especially amazing in the wake of Greenwood Park, where an armed citizen put an end to a mass shooting and, in the process, shattered numerous anti-gun myths.  In other words, this is a great time for pro-gun advocates despite anti-gun efforts pushed by congressional Democrats. After all, those won’t survive legal challenges either.

California isn’t likely to become a pro-gun state anytime soon. However, they might start looking like one whether than want to or not. If they do, then other anti-gun states will as well, and whether they like it or not, the results will still be something we can all live with.

Judge Denies New York’s Extension In GOA Case Challenging New Concealed Carry Law

The Judge in Antonyuk et al v. Bruen has denied New York State’s motion for an extension to respond to Gun Owners of America’s (GOA) request for a preliminary injunction against the Concealed Carry Improvement Act (CCIA).

The case centers around Ukrainian immigrant Ivan Antonyuk and the CCIA. The CCIA was New York’s answer to the New York State Pistol Rifle Association (NYSPRA) v. Bruen Supreme Court decision that knocked down the State’s “may issue” permitting regime. After the decision, Governor Kathy Hochul called an emergency session of the New York State Legislature with the focus of changing the laws to make most of the State off limits for citizens to carry a firearm.

Although the Supreme Court did say certain “sensitive areas” could be gun-free zones, it also noted that the designation had to be used sparingly.

The Court further stated that just because people gather in an area doesn’t mean it could be considered “sensitive.” New York ignored that part of the opinion and passed the CCIA, which made most of the State off limits to firearm carriers. Even private property, by default, is a gun-free zone unless the property owner opted out by posting multiple signs. Violating the law would result in a felony that would see a citizen’s firearms rights stripped for life.

Mr. Antonyuk held an unrestricted carry permit when the legislature passed the CCIA. Instead of the SCOTUS decision making it easier for Antonyuk to carry a firearm in the State, the CCIA restricted the New York resident’s gun rights more than before the landmark ruling. Gun Owners of America and Gun Owners Foundation (GOA’s non-profit arm) stepped up to help Mr. Antonyuk challenge the new law. GOA filed a lawsuit against the Empire State and then filed a motion for a preliminary injunction. New York responded by asking for a two-week extension to reply to the motion because of “[t]he extensive nature of the briefing that must take place to address all of the issues that Plaintiffs raise in this lawsuit.” The State also cites “[t]he complexity of the constitutional issues involved.”

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Shifting Burden of Proof of Self-Defense to Prosecution Applies to All Future Trials

A change in state law shifting the burden of proof to the prosecution when self-defense is claimed by a criminal defendant applies to all trials beginning after March 28, 2019, even when the alleged offenses occurred before the law’s effective date, the Supreme Court of Ohio ruled today.

The Supreme Court unanimously reversed two lower court decisions that a Richland County woman, Ladasia Brooks, had the burden to prove her claim of self-defense. She was charged for several crimes related to a 2018 altercation with her ex-boyfriend that caused him serious injury. The Court was divided 4-3, however, on the reasoning for its holding.

Lawmakers amended Ohio’s self-defense statute, R.C. 2901.05, to apply to all trials occurring on or after its March 2019 effective date. The Court’s decision today reverses a Fifth District Court of Appeals decision that applied the changed burden of proof only to offenses charged after the effective date. The appellate court held that deciding otherwise violates the Ohio Constitution’s prohibition on passing laws that are retroactive.

Writing for the Court majority, Justice Jennifer Brunner stated that shifting the burden to the prosecutor does not violate “Ohio’s Retroactivity Clause nor the United States Constitution’s Ex Post Facto Clause,” because the change is prospective and, even when applied to cases in which the underlying conduct predates the effective date of the statute, it reduces, rather than increases, the burden on criminal defendants.

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Del. State Sportsmen’s Association Goes to Court Over Gun Bills

The Delaware State Sportsmen’s Association said Wednesday it has filed the first of what will likely be three court challenges to gun-related bills that were signed by Governor John Carney on the final day of the Delaware General Assembly Session June 30th.

The target is House Bill 450, which the DSSA said bans a “long list of commonly owned rifles, shotguns and pistols, pejoratively and inaccurately labeling those firearms as ‘assault weapons.’”

“DSSA has been protecting and defending the rights of Delaware’s hunters, sportsmen and women, and law-abiding gun owners since 1968. This is not the first time we have challenged unconstitutional and illegal actions of government officials in court, and it will not be the last,” Delaware State Sportsmen’s Association President Jeff Hague said. “We promised our members and the people of Delaware that if HB 450 ever became law we would challenge that law and today we kept that promise.”

According to the DSSA, this case filed in U.S. District Court calls for HB 450 to be declared in violation of not only someone’s constitutional right to keep and bear arms that is guaranteed in the Delaware and United States Constitutions, but other constitutional provisions as well: “the Commerce Clause, the Due Process Clause, the Equal Protection Clause and the “takings” clauses of both the Delaware and United States Constitutions.”

Hague anticipates that the DSSA will also represent gun rights supporters in challenging laws that ban or restrict standard capacity magazines (called large-capacity magazines by the bill’s sponsors) and that would prohibit anyone under age 21 from possessing most firearms, with certain exceptions.

“We kept our promise on HB 450, we will keep our promise on those bills as well. We are both duty and honor bound to protect the constitutional rights of our members and the people of Delaware, and we shall do so,” Hague said.

“DSSA was joined in this action by the Bridgeville Rifle and Pistol Club, The Delaware Association of Federal Firearms Licensees, the Delaware Rifle and Pistol Club and several individual members of those
organizations,” DSSA said in a statement.

DSSA Complaint re: HB 450Download

The Delaware State Sportsmen’s Association said Wednesday it has filed the first of what will likely be three court challenges to gun-related bills that were signed by Governor John Carney on the final day of the Delaware General Assembly Session June 30th.

The target is House Bill 450, which the DSSA said bans a “long list of commonly owned rifles, shotguns and pistols, pejoratively and innaccurately labeling those firearms as ‘assault weapons.’”

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Fort Collins woman sentenced for perjury in red flag filing involving CSU police officer

A Fort Collins woman was sentenced to probation Tuesday after a jury found her guilty of lying on a red flag petition she filed against the Colorado State University police officer who fatally shot her son.

Susan Holmes was found guilty of perjury and attempting to influence a public servant by a jury in April after lying on an extreme risk protection order petition — also known as a red flag petition — she filed in January 2020 against CSU Cpl. Phillip Morris.

The red flag law allows members of law enforcement, a family member or a household member to petition to have a person’s firearms removed if they are deemed by a judge to be a threat to themselves or others.

In the petition filed Jan. 9, 2020, Holmes checked a box saying she is a family or household member of Morris — one of two officers involved in the fatal shooting of her son, 19-year-old Jeremy Holmes, on July 1, 2017 — specifically that she has a child in common with Morris.

Both officers were cleared from wrongdoing by the district attorney at the time of the shooting, Cliff Riedel.

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Supreme Court EPA Decision may Apply to ATF Rules

On June 30, 2022, the Supreme Court issued its decision on the West Virginia v. EPA case. The decision reinforced earlier precedent on the non-delegation doctrine. It is a welcome start to roll back the lawlessness of the administrative state. Might the EPA case signal a willingness to strike down arbitrary rule changes in the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) agency?

The architects of the administrative state understood very well it was a critical way to undermine the Constitution:

The reason for this is that the ideas that gave rise to what is today called “the administrative state” are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.

In the decision, on page 4 of Justice Gorsuch’s concurrence, in footnote 1, Justice Gorsuch points out the Progressive disdain for power in the hands of the people:  

1. For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.”

In the EPA decision, the Court explains it is defending the Constitutional protections of separation of powers. It shows there is a long history of court decisions preventing the agglomeration of powers from one of the three governmental branches to another by improper delegation. From the decision p. 17-18:

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I’m also thinking that 18 USC 922(o) the “Hughes Amendment” is very likely to get axed in the near future, but as to the NFA? Well, this year we’ve seen things happen no one had any idea would happen, so…………

Why I Do Not Expect the Court to Strike Down the National Firearms Act Soon

There are a lot of gun rights activists who seem to have high hopes that the Court will overturn the National Firearms Act because of the Bruen decision.

I think not and this is why. The Court has seldom engaged in overturn of an existing collection of ideas overly quickly. Brown v. Board of Education (1954) might have seemed sudden to segregationists but it was the last brick in a wall going back a couple decades.

There were decisions starting in the 1930s ruling against racial segregation of public law schools. Some of these laws were really amazingly tax-foolish. Texas built an entire law school for five black law students rather than put them in the same classrooms as white students. South Carolina, if my memory serves me correctly, hired tutors to teach two black law students instead of building a separate law school or integrating the existing one. What can I say: Democrats are always willing to waste money for racist reasons.

These previous decisions lead up to the not entirely shocking decision to prohibit de jure segregation K-12.

Going the other way, Roe v. Wade (1973) did not just spring out of the ground. Griswold v. Connecticut (1965) recognized a previously invisible right to privacy for married couples seeking contraception. Married couples had a plausible claim to some sort of privacy because English law had always considered a married couple to be one person (almost always to the detriment of the wife’s interests). Later decisions extended this privacy right to contraception to unmarried couples where no English legal tradition had ever existed.

The Court seldom jumps too far ahead of popular sentiment and when they do, the results often backfire. The recent overturn of Roe v. Wade and the Bruen decision both reflect a fairly pronounced change in public sentiment about abortion and guns. The Court’s GVR orders (Grant writ of certiorari, Vacate an appellate court decision, and Remand to the original trial court for rehearing consistent with the Bruen decision) clearly intend to strike down not only good cause concealed carry laws but also state assault weapon and magazine limits.

Americans are not prepared for ready access to automatic weapons. They may be ready for suppressors to be less restricted, especially because the Bruen decision’s gutting of the two step scrutiny process leaves the government in the difficult position of defending the public safety benefit of suppressor licensing. The original NFA hearings seem to have included suppressors with almost no explanation except related to unlawful hunting, which is hardly a public safety matter.

I do think the Hughes Amendment (1986) ban on new machine gun manufacturing for civilians is a first step that they might take, especially because U.S. v. Rock Island Armory did such an effective job of demonstrating that NFA regulation of machine guns was dependent on them being in commerce. They could be taxed only as a consequence of interstate commerce.

THE SCRAMBLE
QUICK REACTION TO SCOTUS RULING WAS REVEALING

Probably before the anger subsided after the U.S. Supreme Court released its 6-3 ruling (earlier article “Supreme Smack Down”) against New York state’s unconstitutional “good cause” requirement to get a carry permit last month, anti-gun officials in the Empire State, neighboring New Jersey and way out in California were busy trying to figure out ways to dance around the decision.

In less than 24 hours, the attorneys general in New Jersey and California issued directives to law enforcement agencies that they were to no longer require permit applicants to show a special need. But that’s only part of it.

California Attorney General Rob Bonta’s directive included this caveat: “Local officials can and should continue to apply and enforce all other aspects of California law,” the memo says, “with respect to issuing public-carry licenses. In particular, the requirement that a public-carry license applicant provide proof of ‘good moral character’ remains constitutional.”

In Albany, New York, state lawmakers rushed to figure out ways to continue restricting the rights of their constituents as much as possible. They conjured up new requirements for carry permit applications including 15-20 hours of required training, “more extensive” background checks and “greater requirements for safe storage, according to Spectrum News.

Justice Clarence Thomas wrote the majority opinion. He has long insisted the high court needs to take more Second Amendment cases. As noted by CNN — which obviously didn’t care for his ruling — back in 2020 Thomas observed, “It is extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

But a few paragraphs later, CNN said something stunning: “Thursday’s ruling underscores the character of the contemporary court, which is often at odds with public opinion and in conflict with its predecessor courts, when centrist conservatives controlled the center and prevented the bench from pitching too far right.”

Constitutional historians, at least the pro-gun ones, have repeatedly reminded us that constitutionally protected rights are not subject to public opinion (popularity contests).

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Long-Term Threats to Second Amendment Warrant Attention ASAP

Second Amendment supporters won a massive victory with New York State Rifle and Pistol Association v. Bruen – that is undeniable. But what is equally undeniable is the fact some serious, long-term threats have emerged – and Second Amendment supporters need to address them immediately.

For the past few years, anti-Second Amendment extremists have been targeting the means by which we defend out rights. Whether it was Andrew Cuomo and Letitia James going after the National Rifle Association, efforts to pass so-called “campaign reform” schemes, financial deplatforming and other corporate efforts at gun control, including the actions of Kirkland & Ellis, our ability to defend our rights – and the gains we made in securing them is under assault.

The attacks by James and Cuomo can eventually be addressed in court. Ditto for “campaign reform” schemes. Unless, of course, anti-Second Amendment extremists are able to pack the Supreme Court (and lower federal courts). But the threats from government pale to the long-term threats posed from the private sector.

Unlike government at any level – be it federal, state, or local – corporations have a lot more freedom to act against our Second Amendment rights. Like us, they can boycott, divest, and even sanction. The threats have already come from anti-Second Amendment extremists.

What good is the NYSRPA v. Bruen standard if no attorneys are willing to take the case for fear of professional repercussions? In essence, unless Second Amendment supporters can reorient to find ways to influence the biggest corporations and law firms, our rights could be a dead letter for future generations.

The fight against financial deplatforming is no less crucial. If your local FFL or a gun manufacturer can’t access financial services, the Second Amendment is dead. Oh, the legal right to own a gun would be there, but the Second Amendment does not prohibit corporate actions. Salesforce or similar companies can implement their own policies. So can banks, insurance companies, and other financial institutions unless we start acting today.

The corporate cubicles and boardrooms will be just as crucial for our Second Amendment rights as the electoral and legislative arenas have been since 1934. These companies can destroy our rights – and leave Second Amendment supporters with little recourse.

It took nearly seven decades to overturn U.S. v. Miller with the Heller decision, and that took a lot of effort to elect Presidents to appoint the right Supreme Court justices and Senators to cast the votes for confirmation. Corporate CEOs can make the decision to financially deplatform FFLs, gun manufacturers, and Second Amendment advocacy organizations in seven minutes or less, to say nothing of boycotting law firms like Clement & Murphy for daring to take on Second Amendment cases.

These days, Second Amendment supporters must not only defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels. They also must defeat them in the boardrooms of corporate America as well.

 

“A judge’s duty is to apply the law as written. They are not there to judge the impact of the law but to apply it.”

Well, there is one more thing;
Judges also have the duty – whether or not you agree on ‘judicial review’ –  to determine whether a law is constitutional. In other words, have the people, via The Constitution, given goobermint the power to legislate upon a certain subject?

SCOTUS: Impact vs The Law

A judge’s duty is to apply the law as written. They are not there to judge the impact of the law but to apply it.

In the zombie movies the rule is “If I become infected, kill me.” And in most zombie movies a loved one becomes infected and instead of destroying them then and there a judgement is made as to the impact. “It will hurt me to much to lose my child/wife/husband so I’ll ignore the law.”

It almost always ends badly.

In the opinion, the three liberal justices repeatedly warn of the devastating impact of the end of Roe, while emphasizing that the majority’s ruling breaks with core tenets of court procedure.

We’ve been having discussions about the impact of Row v. Wade for years. How many women will be affected by restricted access to abortions vs. the number of babies killed by abortion?

The Dobbs opinion ignores the impact and instead focuses on what the law actually says. What was written, the Rule of Law.

This is the difference between progressives and conservatives. A conservative can be very unhappy over an opinion but will judge that opinion by the Rule of Law. We’ve lost cases because the law wasn’t in our favor. And when those rulings go against us, we attempt to modify the law through legislative means.

A progressive judges everything by its impact. As part of that they apply modifiers based on who is arguing. Thus they can argue the states should have the right to pass laws in one breath and the next argue that the federal government should make the controlling laws. They feel no conflict because they judge based on the impact, not the Rule of Law.

Paul Schiff Berman, a professor at George Washington University Law School, said dissenting opinions help foster “a culture of argument” around America’s laws.
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“It reflects the idea that law is not just a set of rules but is an argument about how to put society together,” Berman said. “Even a view that is not going to be the law of the land at a particular moment in history nevertheless gets articulated in the public arena, so people can see that there is a debate going on that they can be part of and that these things change over time.”

The progressives want the court to be another legislature. The goal is to create an opinion that achieves the outcome the left wants. It is not the rule of law but “how to put society together.” It isn’t about careful, critical analysis of the issue at hand but in writing for the masses with what they want to hear.

The descent of the liberal judges always have emotional foundations. The arguments are seldom about why the conservative opinion is wrong on a legal stand point but rather how it is wrong on an emotional or pseudo moral basis.

— The Guardian What the liberal justices’ scorching dissent reveals about the US supreme court

Is West Virginia v. EPA The SCOTUS Win We Didn’t Realize?

While Second Amendment supporters celebrate the 6-3 ruling in New York State Rifle and Pistol Association v. Bruen, they may also have been given a huge win by none other than Chief Justice John Roberts in West Virginia v. Environmental Protection Agency.

The gist of the opinion Roberts wrote in West Virginia v. EPA is that government agencies like the EPA – or the Bureau of Alcohol, Tobacco, Firearms, and Explosives – cannot exceed the powers granted by Congress. This opens up a whole new front in defending our Second Amendment rights in court.

Anti-Second Amendment extremists have long like to use administrative law to target our rights. For instance, in the Clinton administration, ATF cracked down on FFLs who had a low volume of sales – the so-called “kitchen table” dealers. As the NRA noted, that crackdown greatly reduced the number of FFLs. That can be dealt with by appropriate litigation now.

Congress hasn’t required FFLs to have a storefront, per 18 USC 923, so any criteria ATF uses outside what is in the laws passed by Congress could be open to a challenge in federal court. This could be a chance to really rein in this agency that many Second Amendment supporters would love to dissolve if they got the chance. It doesn’t just stop at FFLs.

Put it this way, the ban on “bump stocks” is now much more easy pickings in court, if only because it does raise questions as to whether they can be regulated administratively under 18 USC 921 and 26 USC 5845. This is just one hot button issue – there are others, like ATF records retention.

The ATF has been creative in trying to hold on to NICS information after the check says a dealer can proceed with the sale – a fight going on since NICS started in the late 1990s. Under the precedent established here, the clear Congressional prohibitions on maintaining those records – indeed, mandating “immediate destruction” – could be an avenue for litigation by pro-Second Amendment organizations.

Then there are administrative import bans of firearms. The list goes on and on, and is a target rich environment for litigation – provided that Second Amendment supporters have access to good attorneys who can see said litigation through.

Still, though, Second Amendment supporters will need to defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels in order to ensure that ATF never does get that clear authority to go after our rights.

Some marching orders in NJ’s magazine capacity suit GVR

Four grant, vacate, remands (GVR) have been reported on since the NYSRPA v. Buren decision came down from the high court. All of the cases are being closely watched, as they are high profile. One of which is Association New Jersey Rifle, et al v. Attorney General New Jersey, et al

The Firearms Policy Coalition (FPC) recently tweeted about some marching orders handed down to the parties concerning the fate of the case, stating they’ve been watching it.

 

In a followup, FPC they provided a link to their friend of the court brief from September of 2020. The screen shotted letter, accessible as a PDF HERE, sent out the court’s directives on the matter.

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