Category: RKBA

BIDEN EXECUTIVE ORDER: UNIVERSAL BACKGROUND CHECKS WITHOUT CONGRESS?

In what many conservatives and pro-gun groups paint as a chilling overreach by the White House, President Biden on Tuesday announced a new Executive Order aimed at guns.

The rambling EO signed by Biden on March 14, on “on Reducing Gun Violence and Making Our Communities Safer,” is multi-faceted.

Among its “whole-of-government approach” tenets are marching orders to the Justice Department to publicly release more inspection reports of licensed gun dealers, expand existing campaigns to promote the safe storage of firearms, step up the entry of ballistics data collected from crime scenes, and increase efforts to encourage the use of “red flag” gun seizure laws.

Other measures include calling on the Federal Trade Commission to issue a public report analyzing how “gun manufacturers market firearms to minors and how such manufacturers market firearms to civilians, including through the use of military imagery.” This is even though only those over the age of 18 can legally purchase a firearm at retail.

Further, the Pentagon is directed to use “principles to further firearm and public safety practices” in their acquisition of firearms, a possible reference to mandating the use of unproven so-called “smart gun” technology.

[That can also be a vague hint that the DOD should try some kind of force play on the U.S. manufacturers to make them kowtow to restricting sales of guns to the civilian market that SloJoe doesn’t like; As in: “Nice lucrative .gov contract ya got there. Be a shame to lose it by continuing to sell those eeee-vil assault weapons to the public.”]

However, one part of the executive action has struck a strong chord with those on both sides of the national conversation on guns: more aggressively defining who is considered “engaged in the business of dealing in firearms” by the ATF and Justice Department. Past guidance from federal gun regulators on the topic of selling guns without a federal firearms license has proven fuzzy, with the agency noting that “courts have upheld convictions for dealing without a license when as few as two firearms were sold, or when only one or two transactions took place.”

Biden, in prepared remarks delivered Tuesday at an anti-gun event in California, was frank that the order was a move toward controversial universal background checks without the required legal framework of going through Congress to make it a law.

“First, this executive order helps keep firearms out of dangerous hands, as I continue to call on Congress to require background checks for all firearm sales,” said Biden. “And in the meantime — in the meantime, my executive order directs my Attorney General to take every lawful action possible — possible to move us as close as we can to universal background checks without new legislation.”

Speaking of prepared remarks, while the White House, Justice Department, and ATF were quiet as to what exactly are the new qualifiers for crossing the “engaged in the business of dealing in firearms” threshold, Everytown, a national gun control organization founded by billionaire Michael Bloomberg, fired off a press release hours before the Oval Office made public the executive action with a window on what could be coming from the administration.

In the statement, the group offered its vision for a proposed new rule by ATF: “Enforcement guidance and substantive rulemaking should make clear that anyone who offers a gun for sale at a gun show or pursuant to an advertisement — including online ads — is presumptively engaged in the business of selling guns and needs to run background checks.”

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Should the Fifth Circuit Reconsider Rahimi En Banc?

The Fifth Circuit’s decision in United States v. Rahimi, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. On March 2, a month after it initially released its decision, the Fifth Circuit panel withdraw its original opinion and substituted a revised version.

The end result is the same, and the updates to the controlling opinion appear to be modest, but Judge Ho significantly expanded his concurring opinion, in which he sets out to “explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.” Judge Ho emphasizes that “[t]hose who commit violence, including domestic violence, shouldn’t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated.”

But because the law at issue in Rahimi “disarms individuals based on civil protective orders—not criminal proceedings,” the panel found no “analogous historical tradition sufficient to support” it. That was especially true, given the way that civil protective orders are used (and abused) in our system, including by a common practice of issuing “mutual restraining orders” in domestic violence cases, a practice that results in the federal prohibition actually disarming domestic violence victims.

Judge Ho’s concurrence also highlights the importance of the Fifth Circuit getting this case right. He notes that before Bruen, circuit courts routinely misapplied Heller despite frequent criticism from the members of the Supreme Court that they were “disfavoring the Second Amendment.” And he correctly recognizes that Bruen was a response to the lower courts’ intransigence: “The Supreme Court has now responded by setting forth a new legal framework in Bruen. It is incumbent on lower courts to implement Bruen in good faith and to the best of our ability.”

Of course, the issue is fraught, so Rahimi has received a lot of attention. Given that it invalidated a federal statute, it seems like a likely candidate for catching the Supreme Court’s attention too. In fact, it appears that the Justice Department views this as a particularly good vehicle to ask the Supreme Court immediately to consider (or reconsider) some of the effects of its decision in Bruen. Attorney General Merrick Garland made a statement over a month ago, vowing to “seek further review of the Fifth Circuit’s … decision,” but there is no indication he intends to seek that review from the Fifth Circuit.

For those of us who believe Bruen got it exactly right, Rahimi may be a bad vehicle for the Supreme Court to flesh out its decision in Bruen. As much as the Justices may try to focus on the bigger-picture legal issues, bad facts make bad law, and Rahimi is full of bad facts. Even if the law that kept him from possessing firearms in this case is unconstitutional—and the panel opinion makes a compelling case that the law lacked support from the founding era—it seems clear that Mr. Rahimi is exactly the sort of person who should be able to be disarmed consistent with the Second Amendment. He was involved in five shootings in two months, including one instance when he “fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”

The Fifth Circuit should consider rehearing the case en banc. This would have the advantage of setting the clearest possible precedent to govern future Second Amendment challenges under Bruen and, perhaps just as importantly, permitting other Second Amendment challenges to get to the Supreme Court first. The federal rules of appellate procedure say a case is a good candidate for reconsideration if it “involves a question of exceptional importance.” The issue in Rahimi meets that standard several in different ways.

The Third Circuit recently heard en banc argument in United States v. Range, a case raising the constitutionality of the federal law against felon possession of a firearm—a separate subsection of the same law at issue in Rahimi—and it decided the issue was worth en banc treatment just three days after receiving the petition for rehearing was filed. More recently, the Eleventh Circuit issued a decision in National Rifle Association v. Bondi, holding that a Florida law restricting the Second Amendment rights of 18-to-20-year-olds to purchase a firearm was constitutional under Bruen. That same day, before any petition for rehearing could be filed, a judge of that court apparently called for an en banc poll, because the court entered an order withholding issuance of the mandate.

Under Fifth Circuit Internal Operating Procedures, any judge may initiate a vote to take a case en banc, even without a petition. And since it appears no petition for rehearing is forthcoming from the Justice Department, the judges of the Fifth Circuit should exercise that prerogative here. Rahimi may well wind up at the Supreme Court anyway, but given the importance of the issues, and Judge Ho’s (correct) assessment that Bruen has tasked the courts of appeals with fleshing out its method first, the Fifth Circuit may do well to consider Rahimi as a whole court first.

Thomas Massie: Biden Pushing Gun Controls That Have Already Failed

Rep. Thomas Massie (R-KY) responded to President Biden’s Tuesday executive order on background checks by noting the president is pushing gun controls that have already failed.

Breitbart News reported Biden bypassed Congress with his executive actions, directing Attorney General Merrick Garland to move the country as close to a universal background check system as possible.

Congress has not passed universal background checks, and one of the reasons for that is because a gun registry is necessary in order for universal background checks to work.  On April 28, 2021, the National Shooting Sports Foundation noted, “The glaring problem with universal background checks is they are unenforceable without a mandatory national firearm registry.”

Biden’s executive order also focused on red flag laws, gun storage, and investigating the marketing methods used by gun manufacturers.

The Associated Press noted that Biden’s order also “[mandates] better reporting of ballistics data from federal law enforcement for a clearinghouse that allows federal, state and local law enforcement to match shell casings to guns.”

FOX News pointed out that Rep. Massie indicated Biden’s focus on the ballistic fingerprinting of guns was more or less a focus on “science fiction.”

Massie outlined Maryland had ballistic fingerprinting requirements for time, then dropped them because the state was spending millions on the idea but not solving any crimes. (On November 8, 2015, Breitbart News explained that Maryland dropped its ballistic fingerprinting requirement after spending five million dollars without zero results.)

Massie also noted Biden’s other gun controls–universal background checks, red flag laws, gun storage requirements, etc.–already exist in California, where they are failing miserably.

He said, “[California has] got a higher-than-average mass public shooting per capita and they’ve got some of the strictest gun laws.”

Massie added, “In fact, [Biden] went to Los Angeles County. Unless you’re White and well-connected, you probably can’t get a permit to carry a concealed firearm there. Fewer than 1-in-5,000 have a concealed carry permit in Los Angeles County.”

NSSF REACTION TO PRESIDENT’S GUN CONTROL EXECUTIVE ORDER

WASHINGTON, D.C. — NSSF®, The Firearm Industry Trade Association, takes exception with President Joe Biden’s Executive Order to increase gun control measures. In the name of “doing something,” the Biden administration is chilling fundamental Constitutional rights and simply rehashing existing law, many of which were previously supported by the firearm industry.

“The Biden administration should demand that soft-on-crime prosecutors and lawmakers use the laws already in existence to lock up criminals that misuse firearms to prey on innocent Americans,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “Instead, this administration continues to scapegoat the firearm industry for its unwillingness to address crime. The failure of this administration to seriously address spiraling crime and instead focus its attacks on a Constitutionally-protected industry that works diligently to remain in compliance with laws and regulations and actively cooperates with law enforcement, especially ATF, exposes the lack of urgency Americans demand to curb rampant and out-of-control crime.”

The firearm industry worked with Congress to update the statutory definition of “in the business,” in the Bipartisan Safer Communities Act, which was passed last year and signed into law by President Biden. The update defined those Americans “in the business” of selling firearms as those “predominantly earning a profit.”

Further, The White House accused industry members, without evidence, of selling firearms without required FBI National Instant Criminal Background Check System (NICS) verifications. This is disingenuous, at best. The firearm industry was the progenitor of the point-of-sale instant background check to ensure firearms are sold only to those the law has determined can be trusted to possess a firearm. The firearm industry has been on the leading edge to improve the quality of FBI’s NICS, including supporting the FIX NICS Act of 2017 that incentivized states and required federal agencies to submit all disqualifying background information to the FBI to ensure prohibited individuals are barred from purchasing firearms. NSSF supports increasing the submission of disqualifying records to FBI NICS but rejects the Biden administration’s demand to move closer to universal background checks, which will not work without a national firearm registry, which is forbidden by federal law.

The firearm industry has also been consistently addressing compliance with federal regulations to report the loss or theft of firearms during shipping. NSSF has repeatedly held compliance seminars with members of the firearm industry and common carriers to be aware of and remain in compliance with reporting requirements when firearms go missing during shipping. NSSF has led this effort to ensure firearms are accounted for during transit from manufacturer to distributor to retailer and finally to retail sale.

NSSF welcomes the Biden administration’s renewed attention to safe storage of firearms in the home. This has been an issue on which the firearm industry has led from the front for over two decades. Every firearm shipped from the factory includes a locking device. Additionally, through NSSF’s leadership with Project ChildSafe®, over 40 million firearm safety kits, including locking devices, have been distributed to communities across America through partnerships with over 15,000 law enforcement agencies in all 50 states and five U.S. territories. This campaign has been recognized by the National Safety Council’s Green Cross Awards and the Government Accountability Office for its efficacy in reducing the criminal and negligent misuse of firearms through voluntary safe storage. NSSF welcomes the Biden administration’s support to increase the reach of this firearm-industry financed effort.

In 2013, then-Vice President Joe Biden held a White House meeting in the aftermath of the Sandy Hook tragedy. He spoke to then-NSSF CEO Steve Sanetti and referring to NSSF, the president said, “You guys are doing a lot of good things, including the gunlock thing. And this isn’t Joe Biden just blowing smoke. I mean it.”

NSSF has not opposed the use of emergency risk protection orders, or so-called “red flag” laws, so long as those laws include adequate protections for Constitutional Due Process considerations. To date, none of the “red flag” laws in the 19 states and District of Columbia include these Constitutional protections. NSSF urges the Biden administration and Department of Justice (DOJ) to address these Constitutional concerns that would encourage additional states to consider these laws.

President Biden’s demand to close “the dating violence restraining order loophole” has already been addressed and was not opposed by the firearm industry. Definitions of domestic partners were updated in the reauthorization of the Violence Against Women Act and the Bipartisan Safer Communities Act. Congress expanded domestic and dating partners to the list of prohibited individuals to include those convicted of misdemeanor domestic violence. Those laws were signed by President Biden.

NSSF recognized that the Department of Defense (DoD) instructs all military members on firearm safety during entry-level training. These include the fundamental rules of firearm safety. The firearm industry welcomes the Biden administration’s acknowledgment of proven firearm safety practices that have been the hallmark of the firearm industry for over a century. To the extent that the Biden administration is attempting to politicize the acquisition for the warfighter, the only criteria should be which firearm is the best one to meet the needs of America’s warfighters. Injecting gun control politics into the process is dangerous. Gun control politics should never have a place in DoD’s selection processes.

NSSF does not oppose the reauthorization of the Undetectable Firearms Act, that requires 3.7 ounces of metal be included in a major component part of a firearm. Detection technology has improved to the point where image detectors have been able to identify polymer-framed firearms. Demands to modernize this act deserve strict scrutiny. The Undetectable Firearms Act as it is currently written should be made permanent.

NSSF rejects the Biden administration’s demands to ban Modern Sporting Rifles (MSRs) and standard-capacity magazines. This demand is clearly unconstitutional, as affirmed by the Heller, McDonald and Bruen decisions by the U.S. Supreme Court that affirmed the individual right to possess firearms in common use. More than 24.4 million MSRs are in circulation today. That’s more than there are Ford F-150s on the road, the most-popular selling pickup truck. MSRs are semiautomatic firearms, which operate the same way as the most popular handguns and duck hunting shotguns. One cartridge is expended for each pull of the trigger. Likewise, efforts to ban standard-capacity magazines are an attempt to infringe on the Constitutional rights of law-abiding Americans. The courts have affirmed that magazine possession is essential to the ability to exercise Second Amendment rights. NSSF knows from government studies that banning MSRs and restricting magazine capacity will not make our communities safer.

NSSF rejects the Biden administration’s demand to repeal the Protection of Lawful Commerce in Arms Act (PLCAA). This law is the expressed will of Congress that was passed with a wide bipartisan majority and prevents frivolous lawsuits against the firearm industry for the criminal misuse of firearms by remote third parties. This would be akin to suing Ford and Anheuser-Busch for criminal drunk driving incidents. Criminals are responsible for the crimes they commit.

NSSF rejects President Biden’s weaponization of the nonpartisan Federal Trade Commission (FTC) to squelch the First Amendment rights of firearm businesses. The heavy-handed approach is nothing short of an attempt to chill First Amendment-protected commercial free speech about products protected by the Second Amendment. The firearm industry markets firearms only to those who are legally able to possess them. Only those over the age of 18 can legally purchase a firearm at retail after submitting to an FBI NICS verification.

NSSF also rejects the Biden administration’s attempt to weaponize the “zero tolerance” policy of revoking federal firearms licenses for minor clerical errors by compounding that ill-conceived policy to expand it to a “name-and-shame” effort. Firearm retailers are the front line for ensuring firearms are sold only to those legally able to purchase them and “zero-tolerance” risks the cooperative relationship between firearm retailers and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This weaponization of the ATF would codify the Biden administration’s efforts to transform the ATF from a law enforcement and regulatory agency to one that is a political arm of an antigun administration.

Washington Democrats Pass Rifle Ban Bill, 10-Day Gun Buy Wait

Washington State House Democrats have used the cover of two successive night votes to pass legislation banning the future sale of so-called “assault weapons” and a requirement that all gun buyers show proof of firearms safety training within the past five years, and endure a 10-day waiting period.

Evergreen State gun owners are furious and will focus their attention on the state Senate, where they hope to stop both measures.

If the gun ban passes, it may be short-lived depending upon federal court action in California and Maryland, where such bans are being challenged by the Second Amendment Foundation (SAF) and Firearms Policy Coalition and, specifically in Maryland, the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA).

According to the Seattle Times, Democrat Gov. Jay Inslee was in the House chamber, watching the vote on House Bill 1240, which turned out 55-42, with some Democrats crossing the aisle to vote with Republicans against the measure. The vote occurred “shortly before 8:30 p.m.,” the Times report noted. Times readers are reacting predictably, with many opposed to the ban and others supporting it.

Inslee, an anti-gunner since his time in Congress, reportedly shook hands with members of the Seattle-based Alliance for Gun Responsibility, a billionaire-backed gun prohibition lobbying group that has been pressing for the ban for several years.

“This is a very important vote. It is something that I’ve believed in since 1994 when I voted to make this federal law,” Inslee said.

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I don’t use marijuana or even CBD products. I advise people not to indulge. But keeping mj as a schedule 1 narcotic is one of the more authoritarian ways the goobermint uses to ban ‘legal’ gun possession

The DOJ Says Marijuana Use, Which Biden Thinks Should Not Be a Crime, Nullifies the Second Amendment
Even as the president bemoans the injustice of pot prohibition, his administration insists that cannabis consumers have no right to arms.

President Joe Biden thinks it is unfair that people convicted of simple marijuana possession face lingering consequences for doing something that he says should not be treated as a crime. Biden cited those burdens last October, when he announced a mass pardon of low-level federal marijuana offenders, which he said would help “thousands of people who were previously convicted of simple possession” and “who may be denied employment, housing, or educational opportunities as a result.” Yet the Biden administration, which recently began accepting applications for pardon certificates aimed at ameliorating those consequences after dragging its feet for five months, is actively defending another blatantly unjust disability associated with cannabis consumption: the loss of Second Amendment rights.

Under federal law, it is a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to possess firearms. The ban applies to all cannabis consumers, even if they live in one of the 37 states that have legalized medical or recreational use. That disability, a federal judge in Oklahoma ruled last month, is not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. The Justice Department recently filed a notice indicating that it intends to appeal the decision against the gun ban for marijuana users.

The Biden administration’s defense of the ban relies on empirically and historically dubious assertions about the sort of people who deserve to exercise the constitutional right to keep and bear arms. Among other things, the Justice Department argues that “the people” covered by the Second Amendment do not include Americans who break the law, no matter how trivial the offense. It also argues that marijuana users are ipso facto untrustworthy and unvirtuous, which it says makes them ineligible for gun rights.

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“Live fire” tests for gun owners violates Second Amendment, says…
Harvard Law Review?

My buddy Jim Wallace of the Gun Owners Action League likes to refer to Massachusetts as a “Second Amendment battleground state”, and he’s not wrong. Beleaguered gun owners in the Bay State are subjected to a host of unreasonable restrictions on their right to keep and bear arms, and if anything the Supreme Court’s decision in Bruen has only made anti-gun activists and politicians more eager to slap more laws on the books.

Under the pre-Bruen standard, local licensing authorities had broad discretion in approving or denying applicants for a License to Carry, and Wallace has previously told us that many jurisdictions are trying to get around the Supreme Court’s decision. State lawmakers are even pushing to require applicants to demonstrate their proficiency with a firearm by requiring live fire training and passing a test, something GOAL says is completely unnecessary.

Now a new article in the Harvard Law Review says those mandates aren’t just unneeded, they’re unconstitutional. The article focuses on the licensing process in Boston, where police already require applicants to pass a “shooting qualification test” at the local police range within two weeks of submitting an application. All would-be pistol owners (a LTC is required to own, purchase, and carry a handgun) must demonstrate “safe handling of, and familiarity with, a .38 caliber, 4-inch barrel revolver” as well as completing a scored live-fire test; requirements that have no analogues in history, according to the author.

The City of Boston could presumptively argue that its Qualification Test, which requires an LTC application to obtain a quantifiable point tally on a scored target, is the type of objective test that Justice Thomas deemed constitutional.

But that contention misconstrues Bruen. First, the Bruen majority did not hold that all objective licensing requirements are constitutional, for even an objective test must not “deny ordinary citizens their right to public carry.” And a shall-issue permitting scheme “can be put toward abusive ends.”

Because the Qualification Test requires applicants to fire a heavy, unpopular handgun accurately, which not everyone can do, it impedes law-abiding citizens from exercising their armed self-defense right — the right to public carry is reserved only for those who shoot well with a heavy handgun. Second, Justice Thomas stated that background checks and firearms safety courses are constitutional, but a shooting qualification test is not a firearms safety course.

Thus, Bruen does not support the proposition that scored live-fire tests survive judicial scrutiny. The Qualification Test’s quantitative characteristics may mitigate its constitutional deficiencies but do not cure them.

In addition to accuracy, the Qualification Test demands that applicants show “safe handling of, and familiarity with, a .38 caliber, 4-inch barrel revolver.” The City of Boston does not provide any concrete guidelines, like a scoring rubric, for the safe-handling requirement, and licensing officials may have differing opinions on the matter. Such requirements do not resemble the “narrow, objective, and definite standards” that Justice Thomas referenced as per se constitutional.

According to the author of the law review article, Boston’s requirement is already ripe for a court challenge, and any move by the state to impose similar live-fire mandates on all LTC applicants would face stiff legal headwinds.

Based on the City of Boston’s facially unconstitutional licensing regime, any Boston resident can seek declaratory, injunctive, and monetary relief for the City’s infringing the constitutional right to keep and bear arms under the Second Amendment, as applied to the states by the Fourteenth Amendment’s Due Process Clause.

This Note does not purport to discuss all the mechanics of either standing or § 1983 liability. As a general matter, however, it bears mentioning that an aggrieved applicant could assert a plausible claim for declaratory, injunctive, and monetary relief against City of Boston licensing officials, the colonel of the Massachusetts State Police, and certain state firearms officials, subject to any affirmative defenses raised by the government.

It’s refreshing (to say the least) to see an article casting doubt on the constitutionality of a Massachusetts gun control law in the pages of the Harvard Law Review, and I hope this is the start of a trend. Far too many academic institutions have seemingly adopted a post-Bruen position of supporting any and all gun control laws, or at least criticizing those court decisions that have ruled a particular law unconstitutional.

Some, like the University of Minnesota, have even enshrined anti-gun activism into the curriculum in the wake of Bruen. I’m sure that the prevailing attitude at Harvard Law is still anti-2A, but at least the Harvard Law Journal is willing to print and publish pieces that take both Bruen and the right to keep and bear arms seriously.

The Buckeye Institute Urges Court to Overturn New York’s Unconstitutional Gun Law
Mar 14, 2023
Columbus, OH – On Monday, The Buckeye Institute filed an amicus brief in Christian v. Nigrelli with the U.S. Court of Appeals for the Second Circuit on behalf of Project 21, a national network of black political, civic, and business leaders. In its brief, The Buckeye Institute argues that New York’s Conceal Carry Improvement Act violates the right of the citizens of New York, particularly black New Yorkers, to keep and bear arms, which the U.S. Constitution guarantees.

“For decades, African Americans and other racial minorities were the targets of firearms regulations that prevented them from exercising their right to bear arms, regulations that were often enacted with racial animus,” said David C. Tryon, director of litigation at The Buckeye Institute. “But as The Buckeye Institute argues on behalf of its client, ‘Historical regulations designed to oppress racial minorities or show distrust or animus towards “disfavored” groups, cannot be the basis for infringing on the right to bear arms.’”

In New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court clearly told New York that it was unconstitutional to deny people their Second Amendment rights by forcing citizens to prove they have a “special need” before they could obtain a license to carry a firearm. In its brief, The Buckeye Institute shows that New York has simply substituted “special need” with “moral character” to deny members of disfavored groups—such as minorities and the urban poor—their constitutional right to keep and bear arms.

None of this makes any sense, but then SloJoe never did make any sense.

Biden to sign executive order to require background checks on more gun sales
The executive order will increase background checks and prevent firearms dealers without licenses from selling guns

President Biden is expected to announce an executive order on Tuesday that would expand background checks to more firearm sales by expanding the statutory definition of a firearms dealer, the White House said.

Biden is set to sign the order during a trip to Monterey Park, California, where he will meet with families and the community impacted by the mass shooting that killed 11 and injured nine others in January. The White House said the executive order will bring the U.S. “as close to universal background checks as possible” without additional legislation.

Under the executive order, Biden is also directing Attorney General Merrick Garland to develop and implement a plan to prevent former federally licensed firearms dealers, whose licenses have been revoked or surrendered, from continuing to engage in the business of dealing in firearms.

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Here’s how progressive lawyers are using public nuisance lawsuits to outlaw guns
O.H. Skinner says public nuisance lawsuits are the next ‘Trojan horse’ for the progressive agenda

EXCLUSIVE – A consumer protection group is warning Republican governors against attempts by left-leaning lawyers to use public nuisance lawsuits as a backdoor way to outlaw guns.

The Alliance For Consumers (AFC), a nonprofit organization aimed at “ensuring consumer protection efforts, class action lawsuits, and attorney general enforcement actions benefit consumers,” sent a letter to all GOP governors Friday saying that since the many state legislatures have recently flipped to a Republican majority, they should be on the lookout for progressive activists attacking gun rights through these legal actions.

“With victories through the legislative process becoming harder to achieve, the progressive left is increasingly looking to an alliance of activists, officials, and trial lawyers to weaponize the judicial system against conservatives and impose key policy priorities by way of public nuisance lawsuits,” AFC president O.H. Skinner wrote.

“Under the guise of compensation for injuries to the overall public interest, these lawsuits open the door to courts imposing sweeping policy solutions outside the traditional governmental processes or otherwise reshaping the economy through massive money transfers,” Skinner added.

Public nuisance laws vary from state to state. Historically, they have been used to protect consumers and the public against things like polluted waterways or hazardous public spaces.

However, Skinner said “activists have found a way to use the court system as a weapon to force companies and consumers to comply with a progressive worldview without legislative oversight or public scrutiny.”

“If you hear someone say, ‘We should bring a nuisance case,’ that is a Trojan horse to accomplish something that you probably don’t agree with.” Skinner said in an interview with Fox News Digital.

Skinner claims that “the true goal of most nuisance suits over things like plastics, fossil fuels or firearms is seemingly to remove products and services from in the market that do not align with the progressive agenda.”

Skinner said that progressive trial lawyers will try to make the case that just as fossil fuels and plastics are bad for the environment that is shared by the public, guns can also cause public harm, and therefore, courts should curb their use because of this “public nuisance.”

Once example of this already taking place, Skinner noted, is a case from 2022 brought by a leading personal injury law firm – Napoli Shkolnik— that filed public nuisance suits on behalf of New York cities Buffalo and Rochester.

According to Skinner, that suit claimed that major American firearms manufacturers’ work to design, produce, market and sell has “created, contributed to, and maintained the public nuisance of unlawful possession, transportation and disposition of firearms, and the utilization of guns in the commission of an offense.”

“Activists have largely been able to hide the ideological aspects of public nuisance litigation,” Skinner said. “But make no mistake: public nuisance claims are about liberal control, not just about money, and certainly not about helping consumers.”

Montana Attorney General Austin Knudsen told Fox News Digital that while public nuisance laws “have their place” and are a “tool that needs to exist,” governors and state legislators should consider making changes to such laws so they are not abused.

New York lawmaker admits proposed ammo tax is meant as “disincentive” to gun ownership

Thank you very much to New York Assembly member Pat Fahy for saying the quiet part out loud when talking about her proposed tax on ammunition. The Albany Democrat wants to see anywhere from a 2-to-5-cent tax on each round of ammunition sold in the state (basically, the bigger the bullet the higher the tax), with the money going towards community-based violence intervention groups. We’ve seen similar schemes enacted to great fanfare (and little effect) in cities like Seattle, and lawmakers have even proposed this idea in New York before now, but rarely are lawmakers so explicit in their intention to tax people out of a right.

“So, if you buy 50 rounds, it’ll be just a couple of extra dollars,” said Fahy. “So, it’s not a huge tax, but another disincentive to arming up.”

If New York Democrats do end up adopting Fahy’s bill and turning into law, that statement is going to come in very handy during the inevitable court challenge that will ensue. The Supreme Court doesn’t look kindly on taxing the exercise of a constitutionally-protected right, especially when it is designed to chill the exercise of that right.

The Court took up this issue back in the 1940s, in a case called Murdock v. Pennsylvania. At issue was an ordinance imposed by the town of Jeannette, Pennsylvania that required “all persons canvassing for or soliciting within said Borough, orders for goods, paintings, pictures, wares, or merchandise of any kind” to obtain a license from town officials in addition to paying a fee for the privilege of doing so. When a group of Jehovah’s Witnesses were fined under the ordinance for selling religious tracts without acquiring the mandated license, they sued, and eventually the Supreme Court found in their favor.

In its decision, the Court declared:

“the First Amendment, which the Fourteenth makes applicable to the states, declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .” It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is, in substance, just that.…

A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory.

Fahy’s proposed ammo tax isn’t a flat licensing tax like the ordinance in Jeannette, Pennsylvania, but thanks to her comment to the press there should be no doubt that the tax on every round of ammunition is designed to be discriminatory in nature against any and all New Yorkers who dare seek to exercise their right to keep and bear arms. When she talks about disincentivizing arming up, she’s really saying the bill disincentivizes the exercise of a constitutionally-protected right, and that’s a no-go according to SCOTUS.

An ammo tax is also a terrible idea from a policy perspective. Seattle, Washington imposed a tax on the sale of both firearms and ammunition back in 2015, and it’s brought in far less money for violence prevention programs than supporters had predicted. They were boasting of $500,000 in tax revenue every year, but in 2019 about $85,000 was collected from the handful of remaining gun stores inside the city limits. Many FFLs chose to simply relocate beyond Seattle’s borders, and many Seattle residents have chosen to buy their guns outside the city limits as well.

Seattle’s violent crime, meanwhile, has gotten exponentially worse. There were 24 murders in Seattle in 2015; far fewer than the  55 homicides reported in the city last year. Seattle’s gun and ammo tax hasn’t made the city a safer place, and Fahy’s proposal would be just as ineffective in New York. But as Fahy herself has made clear, her tax isn’t about preventing crime. It’s about preventing responsible New Yorkers from keeping and bearing arms for self-defense.

HORRIBLE MEMES image memes at relatably.com

Opponents, Anti-Gunners Horrified as Constitutional Carry Looks Inevitable in Florida.

Whether it’s called constitutional carry, permitless carry or unlicensed concealed carry — which is probably the most accurate — the fact that soon millions of Floridians will no longer need a permission slip from the government to defend themselves has critics frothing at the mouth.

It’s going to happen, and there’s nothing they can do about it – that’s the bottom line.

They’re powerless to stop the massive restoration of our civil rights, regardless of how hard they whine or how absurd their prognostications of impending doom become. Florida Gov. Ron DeSantis has promised to sign the bill, and leaders in the House and Senate – where Republicans enjoy super-majorities – have promised to put a bill on his desk.

No one is taking the news harder than Frank Cerabino, a columnist for The Palm Beach Post who has enjoyed ridiculing guns, gun owners and civil rights for more than 30 years. As the bill progressed through the legislature, this angry little toad of a man has become positively deranged.

He’s lost what little sanity he once had, and that was never much. Cerabino’s March 7 column, which was titled “The ‘constitutional carry’ lie and why gun advocates don’t love the latest Florida bill,” shows just how toxic his pent-up why-won’t-they-listen-to-me! anger has become.

In his column, Cerabino describes constitutional carry as “political fiction,” and then he completely loses his damn mind.

“‘Constitutional carry’ is like ‘legitimate rape.’ It doesn’t exist,” he actually wrote.

No, Frank, nothing is like rape – nothing – and you should know that. To compare rape to anything is repugnant, morally wrong and massively offensive. It trivializes the horrors sexual assault survivors struggle to live with every single day. It defies belief that this disrespectful and hurtful comparison was actually published by a daily newspaper.

In another tangled line, Cerabino showcases his ignorance of the law, rifles and ballistics.

“Open carry would also allow them to walk around in public with weapons too big to conceal, such as military-style mass casualty weapons like the AR-15, which fires projectiles capable of liquifying body organs and passing through metal,” he wrote.

First, neither the House bill nor the Senate bill allows for the open carry of arms. That’s the problem many of us have with this legislation, and the reason it’s not accurate to call it constitutional carry. Therefore, no one will be walking around with a “military-style mass casualty weapon like the AR-15” in Florida unless they’re hunting, fishing or camping.

As to the AR-15’s magic liquifying abilities – nope. Sorry, Frank, but that’s pure bunk. The 5.56x45mm round was nothing more than a mediocre varmint cartridge until Eugene Stoner put it in his AR. In fact, many states prohibit hunters from using the round to harvest deer because it is too small. Compare the 5.56x45mm round to the two previous military calibers – 7.62x51mm and .30-06 – and you’ll learn the error of your ways, Frank.

Cerabino claims that after Gov. DeSantis signs an unlicensed concealed carry bill, we will want another – and we most certainly will. But his final comparison insults everyone who holds their right to keep and bear arms dear.

“This is what happens when you negotiate with terrorists. You give them one imaginary constitutional right and they’ll demand another,” Cerabino wrote.

Terrorists? Really?

I know more than a few heroes who left chunks of their bodies in foreign countries while fighting actual terrorists, Frank. They’re strong Second Amendment supporters who wouldn’t appreciate being your terrorist label. Also, they never raised their hand and swore to protect and defend any “imaginary” constitutional rights. The only terrorists involved in this fight are those using the First Amendment to encourage further infringements upon the Second.

Friendly fire

Nearly every state that successfully passed constitutional carry experienced some pushback from a small minority of firearms instructors during the legislative process. Unfortunately, Florida isn’t immune from this nonsense. One gun shop here was passing out leaflets titled: “Constitutional Carry (Maybe not such a good idea?)”

“Constitutional Carry (if passed) will allow any Florida resident of legal age, the ability to carry a firearm without any license or training,” the leaflet states. “Unfortunately, a lot of people will look at it as not having to pay for a Florida Concealed Carry class and save money. This is NOT what is good for the public, nor a responsible person.”

It was written by the gun shop’s training division, and signed “because we care.” I’m not naming the shop nor the owner. To his credit, he didn’t post his opinion online, nor did he run to the local media. Though misguided and wrong, his position is not difficult to understand. He’s worried that the end of the state’s mandatory training requirement will lead to a loss of revenue for him and his trainers. However, history shows us this is not always the case.

Many of the 25 states that passed constitutional carry experienced an increased demand for professional firearms training. Florida trainers will likely see the same uptick.

It’s about to become much easier to carry a defensive firearm in the Gunshine State. Gun owners will no longer need to beg permission from the state, pay a $97 fee, submit to background checks, mugshots and fingerprints like a common criminal in order to exercise a basic constitutional right. Most Floridians understand that carrying a defensive firearm is a heady responsibility, so of course they will seek out professional training, if they haven’t done so already.

Constitutional carry, unlicensed concealed carry or whatever else you want to call it will restore the constitutional rights of millions of Floridians. At the end of the day, that’s far more important than anyone’s financial concerns.

If there were, Bloomberg wouldn’t have to astroturf it

There Is No Firm, Sustained Support for Gun Control.

A frequent talking point in the gun control debate is that Americans overwhelmingly support “common sense” gun control measures, such as universal background checks and red flag laws. The Biden administration referenced these surveys last month, when it announced that $231 million will go to states that enact “red flag” laws and push gun control policies. These surveys are constantly invoked in legislative hearings and in the media. But surveys often compress complicated bills down to one-sentence summaries, and the results are often unreliable.

Gun control advocates claim that over 90% of Americans support universal background checks, which would require checks for privately exchanged firearms. Fact-checkers from Politifact and Snopes support these claims. When asked why Congress won’t pass a universal background check law, academics point to the lobbying power of the National Rifle Association.

But in 2016, despite billionaire Michael Bloomberg‘s overwhelming financial backing, ballot initiatives for universal background checks failed in Maine by 4% and won in Nevada by less than 1%. In both Maine and Nevada, the background check initiatives had far more financial support, and the media was overwhelmingly sympathetic to the cause.

If the surveys conducted by gun control advocates were accurate, these should have been easy wins. But surveys often ask very simple questions such as, “Do you support or oppose requiring background checks on all gun sales or transfers?” The actual laws in question, however, can run for dozens of pages and are far more complicated than one-sentence summaries imply.

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Visa, Mastercard pause decision to track gun shop purchases

NEW YORK (AP) — Visa and Mastercard paused their decision to start categorizing purchases at gun shops, a significant win for conservative groups and Second Amendment advocates who felt that tracking gun shop purchases would inadvertently discriminate against legal firearms purchases.

FILE - Assault weapons and hand guns are seen for sale at Capitol City Arms Supply, Jan. 16, 2013, in Springfield, Ill. Visa is pausing their decision to start categorizing purchases at gun shops, a significant win for conservative groups and 2nd Amendment advocates who felt that tracking gun shop purchases would inadvertently discriminate against legal firearms purchases. (AP Photo/Seth Perlman, File)

FILE – Assault weapons and hand guns are seen for sale at Capitol City Arms Supply, Jan. 16, 2013, in Springfield, Ill. Visa is pausing their decision to start categorizing purchases at gun shops, a significant win for conservative groups and 2nd Amendment advocates who felt that tracking gun shop purchases would inadvertently discriminate against legal firearms purchases. (AP Photo/Seth Perlman, File)© Provided by The Associated Press

The decision is, at the same time, also a defeat for gun control groups. There had been hope that categorizing credit and debit card purchases would allow authorities to potentially see red flags — like significant ammunition purchases — before a mass shooting could happen.

After Visa and Mastercard announced their plans to implement a separate merchant category code for gun shop purchases, the payment networks got significant pushback from the gun lobby as well as conservative politicians. A group of 24 GOP state attorneys general wrote a letter to the payment networks threatening legal action against Visa and Mastercard if they moved forward with their plan.

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Fourth Circuit panel appears skeptical of Maryland’s “handgun qualification license”

Back in 2013, as part of its Firearms Safety Act, the Maryland legislature created a Handgun Qualification License, which does not actually permit you to possess a handgun. Instead, it’s a permission slip to undergo a background check and go through the process of purchasing a firearm at retail. Not only does the law impose an additional and extraneous burden on would-be gun buyers, it adds to the cost of exercising your right to keep and bear arms by mandating a four-hour training class at a live-fire range as well as paying for your fingerprints to be taken and submitted to the state police.

The law is the subject of litigation filed by Maryland Shall Issue, and on Friday majority of a three-judge panel in Richmond seemed skeptical of Maryland’s argument that the law should be upheld despite the fact that the Attorney General’s office could find no analogue to the HQL in the historical record.

“The historical tradition is the substantive limitations that are furthered by the HQL law,” Assistant Attorney General Ryan Dietrich said. “Those are ensuring that dangerous, subversive, non-virtuous folks do not get deadly firearms.”

Dietrich argued that firearm competency is a tradition that was alive and well during the founding era. Dietrich cited a law from that time requiring citizens to pledge their loyalty to the United States or be disarmed as an example of the long tradition of limitations on the Second Amendment.

U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, disagreed with the example, stating that the loyalty test has to do with taking away firearms while the Maryland law relates to preclearance.

Richardson used numerous hypothetical situations to try to get Dietrich to concede that the HQL requirement infringes on Second Amendment rights.

“Is your argument that that time period where he cannot buy a firearm to protect his family and his home is not an infringement?” the judge asked.

Dietrich responded that although the law affects law-abiding citizens’ Second Amendment rights, it does not infringe upon them.

Richardson had fun with Dietrich’s bizarre claims, asking if anyone’s Fourth Amendment rights would be infringed upon if they and every other resident in their city were confined to jail for a month while police determined if any of them were bad actors. As Richardson pointed out, the Fourth Amendment protects against “unreasonable” searches and seizures, but the Second Amendment doesn’t talk about any “reasonable infringements.” Any and all infringements are unconstitutional under the Second Amendment’s language, and that would presumably include needless delays or extraneous licensing procedures.

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Oklahoma House Republicans vote to expand a person’s right to self-defense with a firearm

House Republicans advanced a bill Thursday to extend the area where a person can defend themselves with a firearm, an expansion of the so-called “castle doctrine” that has been a top priority for pro-gun groups for years.

House Bill 2049 changed the definition of “dwelling” from a building or house to the edge of the property line, possibly justifying a person’s use of deadly force to protect themselves as long as they are on land they own or rent.

Also referred to as “stand your ground laws,” Oklahoma law does not require a person to leave a situation if they feel threatened. Instead, current law states someone has a right to stay and shoot a person who is threatening their safety, as long as they are in their home.

Rep. David Hardin, R-Stilwell, the bill’s author, said that the expectation of self-defense should include the entire property.

“This is a simple bill … on your property if you feel that your life is threatened you have a right to protect yourself,” Hardin said. “This bill was never intended where you could just walk out and shoot anybody on your property. But if that person confronts you with deadly force, then you would be allowed to use deadly force.”

The bill now heads to the state Senate for consideration.

Democrats, who voted against the bill, expressed concern that innocent encounters, possibly with trick-or-treaters or hikers mistakenly coming onto private property, could end in a shooting death.

Rep. Monroe Nichols, and other state House Democrats, gathered for a news conference on June 2, 2022, to call for gun control measures.
“Maybe I’ve been watching too much ‘Yellowstone,'” said Rep. Forrest Bennett, D-Oklahoma City, referring to the violent television show that centers on property rights disputes in Montana. “But can you understand that there is some concern that this definition really opens this up to the possibility of unsafe actions?”

Hardin disputed those claims, saying any shooting would still be investigated by law enforcement and a person would be held accountable if it were determined their life or safety was not at risk.

Pro-gun groups have lobbied for the bill, including the Oklahoma Second Amendment Association.

Bid to block Illinois’ new assault weapons ban now before federal appeals court

CHICAGO – The federal appeals court in Chicago has its first opportunity to weigh in on Illinois’ controversial assault weapons ban, as challenges to the law continue to advance.

Naperville gunshop owner Robert Bevis asked the 7th U.S. Circuit Court of Appeals for an injunction against the law late Tuesday. He wants the order in place while he appeals a recent ruling from U.S. District Judge Virginia Kendall who found the law to be “constitutionally sound.”

Bevis asked that the injunction, if granted, apply to everyone affected by the state law.

The case appears to be the first to challenge the ban in the federal appellate court. The 7th Circuit now has the opportunity to block the measure signed by Gov. JB Pritzker on Jan. 10 — which immediately banned the sale of military-style weapons and high-capacity magazines — or to side with Kendall.

The court could also resolve Bevis’ request on other grounds.

An appellate court has upheld a Temporary Restraining Order (TRO) against Illinois’ assault weapons ban, and expanded it to cover the entire state.

Kendall ruled last month that “because assault weapons are particularly dangerous weapons … their regulation accords with history and tradition.” But Bevis’ lawyers have accused Kendall of error. Under previous Supreme Court rulings, they said weapons must be found to be “dangerous and unusual” in order to be banned.

“An arm that is commonly possessed by law-abiding citizens for lawful purposes is, by definition, not unusual,” they wrote in their court filing Tuesday. “Thus, such an arm cannot be both dangerous and unusual and therefore it cannot be subjected to a categorical ban.”

They told the 7th Circuit the matter “is not a close case.”

McHenry County’s State’s Attorney Patrick Kenneally requested an emergency restraining order to block the law from taking effect in McHenry County.

It’s unclear how quickly the appeals court might rule. But Bevis’ lawyers insist his business has suffered since the assault weapons ban went into effect. They wrote that 85% of the firearms sold by his business, Law Weapons & Supply, are banned by the state law and a similar Naperville ordinance.

“Cash reserves have been depleted, and as a result, [Law Weapons & Supply] has had to lay off employees and ask Bevis’ family to work without pay,” Bevis’ lawyers wrote. “Bevis has extended his personal credit, missed personal payments like home and car payments, maxed his credit limits, and taken out loans to pay the monthly bills.”

They wrote that Law Weapons & Supply will not be able to abide by its property and equipment leases “if these bans remain in effect any longer.”

“In short, [Law Weapons & Supply] will be put out of business if these laws are enforced,” they wrote.

Bevis’ lawsuit is one of several challenges filed in state and federal courts since Pritzker signed the law. Four federal challenges have been consolidated in southern Illinois’ federal court, where state lawyers recently argued the weapons restricted by the new law aren’t commonly used for self-defense.

“By design and in practice, they exist for offensive infliction of mass casualties,” they argued in a recent brief.

Meanwhile, the Illinois Supreme Court agreed this week to give accelerated consideration to issues that have been raised in state court. The move was prompted by an order last week by a Macon County judge.

That judge followed the lead of earlier Illinois appellate court rulings and found that the assault weapons ban violates the state constitution’s equal protection and special legislation clauses.