Category: Courts

Making Sense of the Limited Cert Grant in NYS Rifle & Pistol Association v. Corlett

Why did the Court rewrite the question presented in this Second Amendment case?

One week ago, I lamented about Heller‘s sad bar mitzvah. On April 26, the Court denied review in three Second Amendment cases concerning the rights of non-violent felons. And the Court had twice relisted NYS Rifle & Pistol Association v. Corlett. At the time, I assumed the Court had denied review, and Justice Thomas was writing yet another dissent from denial of certiorari.

Once again, the shadow docket threw a curveball. This morning the Court granted cert in the case. But the Court only granted review to a limited question presented:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

As soon as I saw the grant, I started to scratch my head. Why did the Court rewrite the QP? Here is how Paul Clement framed the issue for the petitioners:

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

There are at least five major differences between Clement’s QP and the Court’s QP.

First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime? Is there some evidence that the state improperly denied licenses to these particular plaintiffs? Might there be some Due Process Clause argument? Then again, the QP references the Second Amendment, so a Due Process issue would not be squarely presented. I see this slippery change as a way for the Court to issue a very, very narrow decision that will leave the issue unsettled.

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Court to take up major gun-rights case

Over a decade after it ruled that the Second Amendment protects the right to have a handgun in the home for self-defense, the Supreme Court agreed on Monday to decide whether the Constitution also protects the right to carry a gun outside the home. The justices’ announcement that they will take up a challenge to a New York law that requires anyone who wants to carry a gun in the state to show a good reason for doing so sets the stage for a major ruling on gun rights in the court’s 2021-22 term.

The law at issue in the case, New York Rifle & Pistol Association v. Corlett, is similar to gun-control measures in other states. To receive an unrestricted license to carry a concealed firearm outside the home, a person must show “proper cause” – meaning a special need for self-protection. Two men challenged the law after New York rejected their concealed-carry applications, and they are backed by a gun-rights advocacy group. The U.S. Court of Appeals for the 2nd Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.

After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. But the case nonetheless has the potential to be a landmark ruling. It will be argued in the fall, with a decision expected sometime next year.

The announcement came just one day short of one year after the court’s ruling in a different challenge brought by the same gun-rights group. That case involved New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban before the case reached the Supreme Court, a majority of the court agreed with the city that the challengers’ original claims were moot – that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh agreed that the case should return to the lower court, but he also indicated that he shared the concern – expressed by Justice Samuel Alito in his dissenting opinion – that the lower courts “may not be properly applying” the Supreme Court’s most recent gun-rights rulings, District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh urged the court to “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” then pending before the justices, several of which involved the right to carry a handgun outside the home for self-defense.

Shortly after issuing that decision, the court distributed for consideration at its May 1, 2020, conference 10 gun rights cases that they had put on hold while the New York City case was pending. The justices considered those cases at six consecutive conferences before finally denying review in all 10 of them in June.

Justice Clarence Thomas dissented from the court’s decision not to take up at least one of the 10 cases. In an opinion that was joined in part by Kavanaugh, Thomas argued that the Supreme Court would likely grant review if a law required someone to show a good reason before exercising her right to free speech or to seek an abortion. However, Thomas continued, the Supreme Court had opted to “simply look[] the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”

There is no way to know why the justices turned down the petitions for review last year. Commentators speculated that some conservative justices may not have been confident that Chief Justice John Roberts would provide a fifth vote to expand gun rights. However, since then Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett, whose vote as a judge on the U.S. Court of Appeals for the 7th Circuit suggests that she might take a broader approach to the Second Amendment.

Akayed Ullah: Times Square Subway Pipe Bomber Jailed for Life

A man who set off a pipe bomb during rush hour in a New York subway station has been sentenced to life in prison.

Akayed Ullah, 31, detonated the bomb in Times Square station, which is the busiest in New York City, on 11 December 2017.

He later claimed he had only wanted to kill himself and was not acting on behalf of the Islamic State (IS) group.

US Circuit Judge Richard Sullivan described the attack as a “truly barbaric and heinous crime”………..

 

Other say that path is to Civil War.

BLUF:
We’re left to ask: does America still have the option of reversing course, or, in its march toward some form of tyranny, has it already put the Rubicon in its rearview mirror?  

After all, how is a nation supposed to lawfully remedy the corrupt silence of a politicized Supreme Court from which there is no readily apparent peaceful means for appeal? 

Supreme Court’s failures are putting America on a path to tyranny.

Rarely do the generation experiencing the actual events and decisions that lead to their nation’s demise fully appreciate the enormity of their oversight until sometime after their culture’s destruction has been rendered incurable.  Largely, it is not due so much to their negligence as it is to most of them being too preoccupied with simply living and making a living.

Perhaps that would explain why, in just the first four months of 2021, the Supreme Court issued four decisions — or, perhaps better viewed as non-decisions — that should have caused all legitimately patriotic Americans to be alarmed and called to action…but did not seem to.

Only a few weeks ago, without offering any substantive explanation, the Court summarily refused to even look at — much less seriously consider — any of the evidence of the 2020 election irregularities offered by attorney Sidney Powell and others.  Evidently, the Supreme Court of the United States of America was not interested in doing what it could — and should — to let America know decisively whether or not its presidential election had been shamelessly stolen by those now in power.

Why would they not do this?

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AOC backs court packing, says court shouldn’t overturn laws backed by thousands of advocates

Democratic socialist Rep. Alexandria Ocasio-Cortez on Thursday threw her weight behind expanding the Supreme Court.

“I do think we should be expanding the court,” she told reporters.

The New York Democrat, part of the progressive “Squad” collective on Capitol Hill, reasoned the justices overturning laws is part of the problem with the 6-3 conservative majority.

“The idea that nine people, that a nine-person court, can overturn laws that … hundreds and thousands of legislators, advocacy and policymakers drew consensus on … we have to … just ask ourselves, I think as a country, how much does that current structure benefit us? And I don’t think it does,” she said.

Sen. Edward Markey, Massachusetts Democrat, led the charge Thursday to unveil a bill to add four seats to the bench, declaring that the Supreme Court is broken and needs to be fixed.

“The United States Supreme Court is broken. It is out of balance and it needs to be fixed,” Mr. Markey said on the steps of the Supreme Court. “Too many Americans have lost faith in the court as a neutral arbiter.”

The Massachusetts senator blamed former President Trump and Senate Republicans for holding a vacancy open in 2016 for Mr. Trump to fill it by appointing Justice Neil M. Gorsuch.

He said the Republicans also “stole” the seat left vacant by the death of Justice Ruth Bader Ginsburg when Mr. Trump appointed Justice Amy Coney Barrett days before the November election instead of allowing President Biden to fill the seat.

The Judiciary Act of 2021 expands the high court from nine justices to 13. The Democratic lawmakers reasoned 13 was a proper number because there are 13 federal circuit courts, allowing for a single justice to oversee appeals from each one.

Ms. Ocasio-Cortez said she hasn’t seen the actual legislation, stopping shy of endorsing it, but noted she supports the bottom line.

But House Speaker Nancy Pelosi, California Democrat, said she would not be bringing the bill to the floor, instead waiting to see the suggestions of a commission created last week by Mr. Biden to study the Supreme Court suggests.

The Supreme Court has had nine justices since 1869.

BLUF:
I’m somewhat surprised that neither Folajtar or Flick were granted cert by the Court, and I can’t help but see it as a troubling sign that SCOTUS may be trying to bypass cases that involve the Second Amendment. I’m also surprised that Barrett herself didn’t any kind of written dissent from the decisions, especially given her forceful statements in Kanter v. Barr, and I’m not as optimistic as I was a couple of weeks ago that SCOTUS is going to step in and grant cert in any of the upcoming carry cases either.

SCOTUS Rejects Two Gun Cases, Holds On To Another

Amidst a push by the Left to pack the Supreme Court full of anti-gun justices appointed by President Joe Biden and a number of high-profile shootings around the country, SCOTUS once again sidestepped an important case dealing with the right to carry on Monday morning, while also rejecting two cases involving non-violent felons who were hoping to have their rights restored.

The Court has been considering whether or not to grant cert in New York State Rifle & Pistol Association v. Corlett for several weeks now, and a good chunk of the Second Amendment community has become increasingly skeptical that the Court will accept any case dealing with the right to keep and bear arms, even with the addition of Justice Amy Coney Barrett to the bench.

That skepticism is likely to increase thanks to other actions the Court took on Monday, denying cert in cases called Folajtar v. Garland and Flick v. Garland. As the Cato Institute explained the Folajtar case:

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⇓Not the Babylon Bee. ⇓

 

Dems Ready Legislation to Pack the Supreme Court

On Thursday, Democrats in the U.S. House and Senate plan to unveil legislation to expand the size of the Supreme Court, potentially reversing the originalist gains under former President Donald Trump.

The bill would add four seats to the Court, bringing the total from nine to 13, sources told The Intercept. Congress has the authority to set the number of justices on the Court, which has remained at 9 since 1869.

House Judiciary Committee Chair Jerry Nadler (D-N.Y.), Subcommittee Chair Hank Johnson (D-Ga.), and Rep. Mondaire Jones (D-N.Y.) are leading the bill in the House while Sen. Ed Markey (D-Mass.) will lead the effort in the Senate.

Last week, President Joe Biden issued an executive order creating a commission to study “Supreme Court reform” — likely the first step toward packing the Court.

Superficially, it seems that Trump has successfully gotten conservatives confirmed to the Supreme Court. In reality, however, Trump selected justices who would apply the clear meaning of the Constitution and the laws passed by Congress, as understood at the time. Trump did not seek out activist justices who would write conservative ideas into the Constitution — that’s exactly the kind of activism Trump and his allies sought to prevent.

Democrats, however, see the Supreme Court as a kind of super-legislature, using the Constitution as a tool to drag history forward. They look back on Roe v. Wade (1973) — which struck down state laws on abortion — and Obergefell v. Hodges (2015) — which unilaterally redefined marriage — as positive steps toward progress rather than gross abuses of the Supreme Court’s power. Democrats supported the Court inventing new “rights” out of whole cloth because those rights involved abortion and same-sex marriage. The end justified the extremely unrepresentative means.

While Democrats claim their efforts to pack the Court represent the righteous anger over Republican efforts to get originalists on the bench, Democrats give away the game when they call originalism “racist” or “sexist.” By doing so, Democrats not only suggest that following the plain text of the Constitution and the laws passed by Congress is a partisan effort, but that obeying the oath to uphold the Constitution is somehow an exercise in oppression.

The Democrats’ bill to expand the Supreme Court is unlikely to succeed. While it would likely pass the House of Representatives, the bill is almost certain to fail in the Senate, where it would need 60 votes. Sen. Joe Manchin (D-W.Va.) has repeatedly pledged to oppose abolishing the filibuster and packing the Supreme Court.

This Democratic effort seems particularly noteworthy given Biden’s recent order. Do Nadler and Markey really want to cast a vote of no confidence in Biden’s Supreme Court commission?

At the very least, this bill reveals just how desperate Democrats are to gain back control of the Court in order to weaponize it for their agenda.

OooooKaybee.
“Shhhhhhhh. Let’s not tell the Board of Directors what we’re going to do.”

 

Granted (pun intended) the Supremes erred in Murdock in saying that the Constitution ‘grants’ rights, however it did re-correct itself in Heller.

US Supreme Court: Gun Licensing Fees Are Unconstitutional

While I am not an attorney and cannot give formal legal advice, a 1943 U.S. Supreme Court decision, , may give Second Amendment–supporters an overwhelming legal weapon with which to destroy every single firearm ownership (although not necessarily concealed carry) licensing scheme in the country.  This includes those that require licenses to own or purchase firearms.

  • License to own: IL, MA, NY
  • License to purchase: CT, HI, IA, MD, MI, NE, NJ, NC, RI

The executive summary of the ruling in Murdock v. Pennsylvania (1943) was that it is unconstitutional for a state to levy a tax on people who want to sell religious merchandise.  “A municipal ordinance which, as construed and applied, requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities, is invalid under the Federal Constitution as a denial of freedom of speech, press and religion. The mere fact that the religious literature is ‘sold’, rather than ‘donated’ does not transform the activities of the colporteur into a commercial enterprise.”

What does this have to do with fees to obtain a license to own or purchase a firearm?  The USSC also found, “A State may not impose a charge for the enjoyment of a right granted by the Federal Constitution.”  This means the entire Bill of Rights as opposed to just the First Amendment.

It is similarly unconstitutional to charge a fee to exercise the right to vote, AKA a poll tax.  This could well be the reason why states with voter ID laws must provide free identification cards to qualified residents who do not have driver’s licenses, as shown by Crawford v. Marion County Election Board.  “The law’s universally applicable requirements are eminently reasonable because the burden of acquiring, possessing, and showing a free photo identification is not a significant increase over the usual voting burdens, and the State’s stated interests are sufficient to sustain that minimal burden.”  States can charge fees for driver’s licenses because driving is a privilege, but voting is a right.

Gun Licensing Fees Are Racist

The racist nature of many gun licensing schemes is meanwhile underscored by an amicus curiae brief filed by the African-American Gun Association (AAGA) against California.  “African Americans have been the target of some of the oldest and most odious attempts at forced disarmament[.] … NAAGA has a strong interest in this case because taxes and fees imposed on the right to keep and bear arms disproportionately affect African Americans,

due to the average lower income and higher rate of poverty in the African-American community.”  White supremacists once argued openly that this was their intention, and I recall that the complete quote, while it did not use the N-word, did refer to the “son of Ham.”

It is a matter of common knowledge that in this state and in several others, the more especially in the Southern states where the negro population is so large, that this cowardly practice of “toting” guns has always been one of the most fruitful sources of crime[.] … There would be a very decided falling off of killings “in the heat of passion” if a prohibitive tax were laid on the privilege of handling and disposing of revolvers and other small arms, or else that every person purchasing such deadly weapons should be required to register[.] … Let a negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights.

The same went for a Virginia poll tax on the right to vote.

Discrimination!  Why, that is precisely what we propose; that, exactly, is what this Convention was elected for — to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.

The same applies to laws that require gun-owners to buy expensive liability insurance that might be affordable by people of the middle and upper classes, but not by low-paid workers among whom are many black Americans.  While these laws cannot discriminate openly against black people (just as Jim Crow gun taxes and prohibitions on inexpensive firearms known as N-word Saturday Night Specials did not specify any race), they can and do exploit the economic disparity that unfortunately prevails between Caucasians and black people to disarm the latter.  Perhaps certain elements of the Democratic Party have hidden the same sheets and hoods they wore openly 70 or 80 years ago instead of getting rid of them entirely.

An Illinois Court Questioned the FOID Card Requirement

More to the point, however, is the brief’s citation of Murdock v. Pennsylvania and the phrase “[a]cross constitutional rights, the courts have consistently forbidden the use of special fees and taxes on constitutionally protected conduct to generate general revenue.”

Even Illinois’s own courts appear to be finding issues with the Firearm Owner Identification Card per Illinois v. Brown.  “The circuit court was correct that the FOID card requirement impermissibly infringes on law- abiding persons’ rights to bear long arms-in their own homes for self-defense.”  The court filing also argues that the FOID card fee violates not just the U.S. Constitution, but also Illinois’s own laws: “a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.  Thus, Brown, who was merely exercising her right to keep a long gun in her own home for self-defense, cannot be made to purchase a card or obtain a license to exercise this fundamental right guaranteed by the Constitution.”  I do not know the outcome of this case but the bottom line is that an Illinois court had problems with the FOID law.

This article has hopefully provided Second Amendment–supporters with a valuable legal tool with which to attack all state laws that require people to pay for licenses to own or purchase firearms, and potential jurors (i.e., every citizen in the country) with information to use if called to serve in cases that involve these laws.

Florida appeals court upholds law on local gun regulations. 

TALLAHASSEE – In a win for Republican lawmakers and the National Rifle Association, an appeals court Friday upheld a 2011 state law that threatens tough penalties if city and county officials approve gun-related regulations.

A three-judge panel of the 1st District Court of Appeal rejected a challenge to the NRA-backed law by 30 cities, three counties and more than 70 local officials. A Leon County circuit judge in 2019 found that parts of the law were unconstitutional, spurring Attorney General Ashley Moody and Gov. Ron DeSantis to appeal.

Florida since 1987 has barred cities and counties from passing regulations that are stricter than state firearms laws, and the penalties in the 2011 law were designed to strengthen that “preemption.” The law, for example, could lead to local officials facing $5,000 fines and potential removal from office for passing gun regulations.

Local governments and officials filed three lawsuits challenging the 2011 law after the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland that killed 17 people. The lawsuits were ultimately consolidated in Leon County circuit court.

The local governments and officials did not challenge the underlying 1987 preemption law but contended the penalties in the 2011 law were unconstitutional. Friday’s ruling focused on arguments that the 2011 law should be rejected because of two legal concepts known as “government function immunity” and “legislative immunity.”

Judge Susan Kelsey, writing for the appellate panel, rejected the arguments and pointed to the state’s “superior authority in this context.”

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Biden is forming a presidential commission to look at the Supreme Court

My answer is as always; If demoncraps didn’t have double standards, they wouldn’t have any standards at all.

SAF WARNS BIDEN ADMIN: ‘STEP OVER YOUR LEGAL AUTHORITY, WE’LL SUE’
BELLEVUE, WA – The Second Amendment Foundation today warned the Biden Administration that if it steps over its legal authority with any executive action or order regarding the constitutionally-protected right to keep and bear arms, legal action is a certainty.

President Joe Biden has announced what an administration official calls “an initial set of actions” on gun control that include both executive and legislative action. His proposals will cover so-called “ghost guns,” a proposed national “red flag” law and incentives to the states to adopt similar state-level measures and change the designation of stabilizing braces, which are used by many shooters on AR15-type semiautomatic pistols.

“The devil will be in the details,” acknowledged SAF founder and Executive Vice President Alan M. Gottlieb. “Our legal team will review them and we are prepared to file suit if Biden and his administration steps over their legal authority.”

Gottlieb recalled that Biden has been an ardent gun control advocate during his entire career on Capitol Hill. He included gun control as a major component of his presidential campaign last year, and published reports say he has met with representatives from gun prohibition advocacy groups since taking office.

“Nobody from the Biden administration has reached out to us or any other rights organization to my knowledge, which certainly clarifies Biden’s approach to firearms regulation,” Gottlieb said. “He came into office talking about unity, but he just declared war on tens of millions of law-abiding gun owners who have committed no crimes.”

Biden’s nomination of David Chipman to head the Bureau of Alcohol, Tobacco, Firearms and Explosives is another alarming development, Gottlieb said. The nomination requires Senate confirmation.

“Joe Biden just nominated a man now working for the Giffords gun control lobbying group to head the agency responsible for gun law enforcement,” Gottlieb observed. “That’s not just a bad signal to gun owners. The president has essentially raised the black flag, and we see nothing positive for American gun owners or the firearms industry.”

West Virginia attorney general threatens to sue Biden over gun measures

West Virginia Attorney General Patrick Morrisey (R) on Thursday threatened to sue the Biden administration over President Biden’s proposed gun safety measures.

Morrisey issued a statement threatening to be in court “very quickly” if Biden follows through on his proposals, which the president unveiled at the White House Rose Garden on Thursday.

“Defending the Second Amendment remains one of the most important priorities for the West Virginia Attorney General’s Office,” Morrisey said. “I will not allow the far left to run roughshod over our citizens’ gun rights. If President Biden follows through on his proposals, we will be in court very quickly.”

“Gun violence and the senseless death attributed to it should pain all Americans, however, the evil acts of a select few should never be a catalyst for stripping the lawful masses of their constitutional rights, especially their right to self-defense and to bear arms,” he continued.

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22 states fight California gun restrictions, urge Ninth Circuit to rule against large-capacity magazine ban

A coalition of 22 states, led by the Republican attorneys general of Arizona and Louisiana, is urging the Ninth Circuit Court of Appeals to again rule against California’s controversial attempt to ban high-capacity magazines, after the court agreed to reconsider its decision to rule it unconstitutional.

“California politicians are at it again, convinced that their agendas should override the Constitutional rights of the people,” said Attorney General Mark Brnovich, a Republican, in a statement, announcing the filing of an amicus brief. “Attempts to undermine the Second Amendment or any of our civil rights and liberties should be met with deep skepticism and vigorous opposition.”

California passed a ban on magazines of 10 bullets or more in 2016. A ruling by a federal judge that it was unconstitutional was upheld by a three-judge panel on the Ninth Circuit last year. In February, the court agreed to have an 11-judge panel rehear the case.

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Oil companies defeat New York City appeal over global warming

NEW YORK (Reuters) -A federal appeals court on Thursday rejected New York City’s effort to hold five major oil companies liable to help pay the costs of addressing harm caused by global warming.

Ruling in favor of BP Plc, Chevron Corp, ConocoPhillips, Exxon Mobil Corp and Royal Dutch Shell Plc, the 2nd U.S. Circuit Court of Appeals in Manhattan said the regulation of greenhouse gas emissions should be addressed under federal law and international treaties.

It rejected the city’s efforts to sue under state nuisance law for damages caused by the companies’ “admittedly legal” production and sale of fossil fuels, and said the city’s federal common law claims were displaced by the federal Clean Air Act.

“Global warming presents a uniquely international problem of national concern,” Circuit Judge Richard Sullivan wrote for a three-judge panel. “It is therefore not well-suited to the application of state law.”

Sullivan added that while the Clean Air Act did not address emissions from outside the country, foreign policy concerns and the risk of courts “stepping on the toes of the political branches” barred the city’s lawsuit.

Nick Paolucci, a spokesman for New York’s law department, said the city was disappointed it could not hold the oil companies “accountable for the environmental damage they knew their products would cause.”

Thursday’s decision “explains in clear detail why the U.S. climate tort lawsuits are meritless,” Chevron General Counsel Hewitt Pate said. “Working with the new U.S. administration, other governments, and other honest stakeholders on constructive global solutions is a better path.”

Other defendants did not immediately Respond to requests for comment.

The decision upheld a July 2018 dismissal by U.S. District Judge John Keenan in Manhattan.

The city’s lawsuit was an early effort among U.S. states and municipalities to turn to the judiciary invoke state law to address climate change.

The decision “confirms the wisdom of filing state common law lawsuits in state courts that are unlikely to be controlled by federal law,” said Robert Percival, a University of Maryland law professor.

The case is City of New York v Chevron Corp et al, 2nd U.S. Circuit Court of Appeals, No. 18-2188.

 

it only takes 4 justices to decide to hear a case, and we’ve got 5 that appear to be on board with a more ‘expansive view’ of individual rights.

U.S. Supreme Court weighs taking up major gun rights case

NEW YORK, March 26 – The U.S. Supreme Court on Friday will discuss taking up a major new gun rights case involving a National Rifle Association-backed challenge to a New York state law that restricts the ability of residents to carry concealed handguns in public.

The nine justices will discuss the case at their private weekly conference at a time of heightened concern about gun violence in the United States following a pair of mass shootings in a span of a week, one in Georgia and the other in Colorado, that killed a total of 18 people.

Two gun owners and the New York affiliate of the NRA, an influential gun rights group closely aligned with Republicans, are asking the justices to hear an appeal of a lower court ruling throwing out their challenge to a policy that requires a state resident to show “proper cause” to obtain a permit to carry a concealed handgun outside the home.

Lower courts rejected the argument made by plaintiffs that the restrictions violated the U.S. Constitution’s Second Amendment right to keep and bear arms.

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I don’t and never have owned a bump stock. They’re a gizmo to avoid NFA restrictions (and thus an eye poke to the bureaucraps & politicians) Applause.

The Bump Stock Ban Highlights the Danger of Letting Bureaucraps Invent Crimes

Two years ago, peaceful, law-abiding gun owners across the country became felons overnight, thanks to the Trump administration’s ban on bump stocks. But as the U.S. Court of Appeals for the 6th Circuit recognized last week, Congress alone has the authority to define new federal crimes, while the president and his underlings are charged with enforcing those laws.

Combining both powers in a single branch is a license for tyranny—a danger the Framers tried to avoid by carefully separating the legislative and executive functions. Regardless of their views on gun control, Americans who care about the rule of law should be troubled by the implications of letting unelected bureaucrats unilaterally and arbitrarily criminalize previously legal conduct.

Bump stocks, first patented in 2000, allow rifles to slide backward, propelled by recoil energy, after a round is fired, which resets the trigger. The sliding stock facilitates a rapid firing technique in which the shooter maintains forward pressure on the rifle, causing his stationary finger to bump repeatedly against the trigger.

These accessories were mainly of interest to hobbyists, regulators, and industry insiders until October 1, 2017, when a gunman murdered 60 people in Las Vegas. Because the killer’s rifles reportedly were equipped with bump stocks, Donald Trump responded to the massacre with a promise to ban them by administrative fiat.

Tasked with inventing a legal rationale for a ban the president already was determined to impose, the Bureau of Alcohol, Tobacco, and Firearms (ATF) reinterpreted the statutory definition of machine guns to cover bump stocks. But as the ATF itself had repeatedly recognized over the years, that reading of the law was inconsistent with its plain meaning.

Under the National Firearms Act, “the term ‘machinegun’ means any weapon” that fires “automatically more than one shot…by a single function of the trigger.” The definition also includes parts “designed and intended” to convert a weapon into a machine gun.

A rifle equipped with a bump stock, however, fires just one round for each “function of the trigger,” which must be reset before the weapon can fire again. The ATF tried to get around that problem by defining “a single function of the trigger” as “a single pull of the trigger,” defining pull to exclude what happens during bump firing, and treating the shooter as part of the rifle mechanism, ignoring his active participation in the process so that the gun could be said to fire “automatically.”

The ATF maintained that the 6th Circuit was bound to accept this highly implausible interpretation under “Chevron deference.” According to that controversial doctrine, courts must accept an agency’s “permissible” interpretation of an “ambiguous” statute.

Critics of that doctrine argue that it undermines the separation of powers, inviting administrative agencies to interpret laws, which courts are supposed to do, and even rewrite them, which is Congress’ job. That danger is especially acute, the 6th Circuit noted, when an agency threatens to fine and imprison people based on its own idiosyncratic understanding of the law.

As a result of the ATF’s ban, continued possession of bump stocks—products the agency had previously deemed legal—is punishable by a maximum fine of $250,000 and up to 10 years in prison. In this context, the appeals court said, deferring to the ATF’s new interpretation of the law would violate the “rule of lenity,” which says ambiguous criminal statutes should be read to favor defendants.

In light of those concerns, the 6th Circuit said, “an agency’s interpretation of a criminal statute is not entitled to Chevron deference.” And without the benefit of that doctrine, it concluded, the ATF’s redefinition of machine guns cannot be accepted, since it is clearly not the “best interpretation” of the law.

The issue here is not whether banning bump stocks is a good idea but who has the authority to do it. As the appeals court noted, “that judgment is reserved to the people through their duly elected representatives in Congress.”

The Federal Circuits’ Second Amendment Doctrines

by David Kopel and Joseph Greenlee, from 2016

This Article describes the process for deciding Second Amendment cases, as set forth by the Circuits of the United States Courts of Appeals. The focus of the Article is how the circuit courts analyze Second Amendment cases.

In the eight years since the Supreme Court decided District of Columbia v. Heller , the circuit courts have collectively worked out a Second  Amendment methodology. Although there are differences among the circuits, and sometimes among panels within the same circuit, the methodology described below has become standard, albeit not universal.

We have examined every post- Heller circuit case, including the unpublished ones. The cases are listed in the Appendix by circuit. We occasionally cite state court and federal district court cases that are especially illuminating