Category: Courts

Did Chuck Schumer Just Threaten Gorsuch and Kavanaugh? Sure Looks That Way.

Senate Minority Leader Chuck Schumer appeared to threaten Trump-appointed Supreme Court Justices Brett Kavanaugh and Neil Gorsuch over their potential votes in the first abortion case before the Supreme Court with the new conservative majority, during a #MyRightMyDecision rally outside the Supreme Court on Wednesday.

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price,” Schumer said to a chorus of cheers. “You won’t know what hit you if you go forward with these awful decisions.”

That sounds like a threat to me, which means that Chuck Schumer violated the law. According to 18 U.S. Code § 115, whoever threatens a federal official, “with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished” by a fine or imprisonment of as much as ten years.

Chief Justice John Roberts calls Sen. Chuck Schumer comments ‘dangerous’ threats

……..Several hours later, after Schumer’s comments ricochetted across social media, Roberts issued a statement through a court spokeswoman.

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said in the statement. “All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”………….

“To me this sounds like he’s talking about a physical price, violence,” said Sen. John Barrasso, R-Wyo., in an emotional statement from the Senate floor. “These are members of the Supreme Court — he the minority leader of the United States. … I believe these statements are outrageous. They’re uncalled for. They’re out of bounds. And on their face, they appear to invite violence against members of the Supreme Court.”

Supreme Court Narrowly Decides That Identity Theft by Illegal Aliens Is Actually a Crime

“This victory is a key one, but it also shows just how close we are to having our immigration laws being made illegal to enforce.”

Small wonder that we are a magnet for illegal immigration. Our courts, with the best of intentions, have created a Rube Goldberg device whereby the black letter of immigration law is thwarted by loopholes and roadblocks to enforcement.

In 1986, Congress enacted the Immigration Reform and Control Act (IRCA). IRCA made it illegal to employ illegal aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. As part of this law came the Form I-9, known to anyone who has applied for a job in the past 30 years. This is a largely toothless provision that does nothing to deter anyone from employing an illegal nor does it pose any noticeable bar to the ability of illegals to work, but it has created a booming black market in I-9 friendly documents.

What could have been a fairly formidable tool to deter longterm illegals has been effectively gutted by the courts.

In Flores-Figuroa vs. United States, the Supreme Court ruled that illegals using counterfeit social security cards could not be prosecuted for identity theft unless they knew that the bogus social security number belonged to a real person. The decision was 9-0, but three justices made it clear that their concurrence was based on the fact that the law provided for a greater penalty for users of social security numbers belonging to real people than it did for those belonging to no one or to a deceased person.

When the US Supreme Court in thetravesty known as Arizona vs. United States ruled that states have no authority to enforce US immigration law…thank you, John Roberts, for again selling the nation down the river in order to try to bond with the liberals on the court….it opened a can of worms for any judge or court which is sufficiently woke and ambitious enough to use it. One of those instances happened in Kansas.

The case in question is called Kansas vs. Garcia. This is the background.

On August 26, 2012, Officer Mike Gibson pulled Garcia over for speeding. Gibson asked Garcia where he was going in such a hurry. Garcia replied that he was on his way to work at Bonefish Grill. Based on the results of a routine records check on Garcia, Gibson contacted Detective Justin Russell, who worked in the financial crimes department of the Overland Park Police Department. Russell was in the neighborhood and came to the scene to speak with Garcia.

The day after speaking with Garcia, Russell contacted Bonefish Grill and obtained Garcia’s “[e]mployment application documents, possibly the W-2, the I-9 documents.” Russell then spoke with Special Agent Joseph Espinosa of the Social Security Office of the Inspector General. Espinosa told Russell that the Social Security number Garcia had used on the forms belonged to Felisha Munguia of Edinburg, Texas.

As a result of the investigation, Garcia was charged with one count of identity theft.

Garcia was convicted and the conviction was upheld on appeal. But the Kansas Supreme Court reversed. That court reasoned that because state officials were barred from using information on the I-9 for reasons other than verifying eligibility for employment that Kansas could not use the fact the fake social security number was used on state and federal tax returns and on an apartment lease as evidence of a crime.

The federal Immigration Reform and Control Act bars employers from knowingly employing undocumented immigrants. The act also requires employees to verify that they are eligible to work in the United States by submitting a Form I-9, and it strictly limits the use of information on or attached to a Form I-9. Because the Social Security numbers that the defendants were using appeared on their I-9s, the state court reasoned, the prosecution was trumped by the IRCA, even if the Social Security numbers also appeared on the defendants’ tax-withholding forms.

In short, what the Kansas Supreme Court did was legalize identity theft so long as you were an illegal. (READ: Will the Supreme Court Choose to Preserve Immigration Law or Will It Make Identity Theft Legally Protected?) The US Supreme Court heard the case back in March and the decision was handed down today.

The court, in a 5-4 opinion by Justice Samuel Alito, reinstated convictions obtained by Kansas prosecutors against three restaurant workers for using other people’s social security numbers on forms given to their employers.

The central question in the case, Kansas v. Garcia, was whether such state prosecutions were barred by a provision of federal immigration law that says any information submitted with federal work-authorization forms can’t be used for state law-enforcement purposes.

Justice Alito, writing for a conservative majority, said the answer was no. The mere fact that Kansas law on identity theft overlapped with federal law “does not even begin to make a case” that the state’s prosecutorial efforts should be pre-empted, he wrote.

“In the present cases, there is certainly no suggestion that the Kansas prosecutions frustrated any federal interests,” Justice Alito said.  Joining him in the majority were Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.

The Trump administration had sided with Kansas in the case, arguing that Congress never meant to carve out an immigration-related exception that would prevent states from enforcing their own identity-theft laws.

In dissent, Justice Stephen Breyer, writing for the court’s liberal wing, said U.S. immigration law gave federal authorities the sole responsibility to police fraud committed to obtain eligibility to work.

The law “reserves to the federal government—and thus takes from the states—the power to prosecute people for misrepresenting material information in an effort to convince their employer that they are authorized to work in this country,” Justice Breyer wrote.

If this representation of Breyer’s views are correct, and I’ve not read the opinion, it is sheer lunacy. He is literally declaring that using a fake ID on an employment I-9 immunizes you from being prosecuted.

This victory is a key one, but it also shows just how close we are to having our immigration laws being made illegal to enforce.

Justice Gorsuch’s Statement on the Denial of Cert in the Guedes v. ATF Bump Stock Ban Appeal

The problem with this is that, since the preliminary injunction ( to keep the people who filed the suit from having to either destroy or surrender their bumpstocks) has been denied , is that those stocks are now contraband and possession makes the owner liable to felony prosecution. Nice choice. The plaintiffs might actually win on the merits of the case, but that’s small consolation to having to lose the stock and the $$ paid or face possibly being charged. So those folks are out either way even if they win.

Stupid judges.

[ED: read the full opinion with cited case references here. As TTAG’s resident consulting attorney LKB points out, the key here is the last paragraph. The appeal in Guedes is from a denial of a preliminary injunction. There is no ruling here on the merits of the case. In other words, the bump stock ban itself could still be overturned.]

Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn’t think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind.

Whether bump stocks can be fairly reclassified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks.

But at least one thing should be clear: Contrary to the court of appeals’s decision in this case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us. In the first place, the government expressly waived reliance on Chevron.

The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute “turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than upheld.”

Yet, despite this concession, the court proceeded to uphold the agency’s new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usually do in statutory interpretation disputes: supply its best independent judgment about what the law means. But, instead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government. That was mistaken.

This Court has often declined to apply Chevron deference when the government fails to invoke it. Even when Chevron deference is sought, this Court has found it inappropriate where “the Executive seems of two minds” about the result it prefers.

Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,’” then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.

To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake.

Under our Constitution, “[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.’” Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A “reasonable” prosecutor’s say-so is cold comfort in comparison.

That’s why this Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” Instead, we have emphasized, courts bear an “obligation” to determine independently what the law allows and forbids.

That obligation went unfulfilled here. Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it.

And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”?

And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

Gun-Rights Activists Look to Supreme Court to Take Up AR-15 Bans, Confiscation Bills
High Court has yet to rule on ‘assault weapon’ bans

The latest denial of cert, even if it was simply for the preliminary injunction requiring the bump stocks be surrendered or destroyed, as I have just learned, still leaves me uneasy about the odds that the court will grant it for any of these cases, even though there’s disagreements across the appeals circuits.

Second Amendment advocates are pursuing multiple lawsuits against gun-control measures in an effort to trigger a Supreme Court challenge that could upend decades of legislation.

The Second Amendment Foundation has filed multiple gun-rights challenges in federal courts across the country. Founder Alan Gottlieb said the muddled nature of state laws, on issues ranging from open carry to the possession of certain weapons, calls out for judicial review from the nation’s highest court.

“Politicians making claims that the Second Amendment doesn’t apply to so-called assault weapons is exactly why the Supreme Court needs to take all of these cases and put this issue to rest,” Gottlieb told the Washington Free Beacon

The Supreme Court has never heard a legal challenge on either federal or state bans on “assault weapons” and has been largely silent on Second Amendment issues since its landmark rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010)……..

If the Supreme Court is moved to rule on new gun-rights cases….it could change the landscape of gun laws in the United States. Any ruling expanding protections for what categories of guns Americans have a right to own, or where they have a right to take their guns, could strike down laws in heavily Democratic states such as California, New York, and Illinois.

In 2016, the Supreme Court used Heller to toss out a Massachusetts woman’s conviction for possessing a stun gun banned in the state—the ban was later struck down by the Massachusetts Supreme Judicial Court. That was the only major gun-rights case that the justices ruled on in the last decade. Gun-rights advocates say the reluctance of the High Court to act has led to a confusing web of lower court decisions that leave the extent of Second Amendment protections an open question……….

Second Amendment activists are confident that they would prevail if state or local gun bans reach the Supreme Court. The Court ruled in Heller that weapons “in common use” for lawful purposes are protected by the Second Amendment. The AR-15 and other semiautomatic rifles are some of the most popular guns in the country with more than 17.7 million owned by civilians in the United States, according to a recent industry estimate……..

Appellate courts have disagreed, but there has been no uniform legal reasoning between circuits affirming the constitutionality of gun bans.

The Seventh Circuit ruled AR-15s and similar firearms banned in Cook County, Illinois, do not have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” The Fourth Circuit ruled the AR-15s banned by Maryland are “‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment’s reach.” The D.C. Circuit ruled there was a “substantial relationship” between the city’s AR-15 ban “and the objectives of protecting police officers and controlling crime.” The First Circuit ruled Massachusetts “(at most) minimally burdens” Second Amendment rights with its AR-15 ban.

Mark Oliva, a spokesman for the National Shooting Sports Foundation, said the varied opinions make the issue ripe for the Supreme Court to take up.

“There are no grounds to say it’s settled law. You have circuit courts of appeal that are at disagreement as to why those bans are constitutional,” he told the Free Beacon. “When you have disagreement among the circuit courts that is a reason why the Supreme Court could be weighing in to come to an agreement on what that standard is.”………

There are at least six separate gun-rights challenges from Maryland, Illinois, Massachusetts, California, and New Jersey—as well as one challenging a federal ban on interstate handgun sales—waiting for review by the High Court. Not every gun-control advocate shares Levine’s optimism. Ladd Everitt, former director of the gun-control group One Pulse for America, said pro-gun control policymakers should not give the Supreme Court leeway to set new precedents overturning gun-control laws.

“The majority’s decision in Heller led to a torrent of litigation against gun-control laws nationwide,” Everitt said in a 2019 op-ed. “Thankfully, federal courts have rejected most of those challenges. It will become harder to do so in the future, however, if our increasingly pro-gun Supreme Court is allowed additional, unnecessary bites at the Second Amendment apple.”

The District of Columbia declined to appeal a 2017 decision striking down its restrictive gun-carry permit law because city officials feared a Supreme Court decision would strike down similar laws in other states. In 2019, New York City officials attempted to withdraw a bid to defend a law limiting the transportation of legally owned firearms after the Supreme Court agreed to review the case. Local gun-control groups even lobbied for a state law loosening the travel restrictions out of fear of what the Court might rule.

Several Supreme Court justices have publicly spoken out in favor of the Court taking more gun-rights cases. When the Court declined to hear a challenge to a California gun-carry law in 2017, Justices Clarence Thomas and Neil Gorsuch wrote a dissent, telling their colleagues not to “stand by idly while a State denies its citizens that right.”

“The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right,” Thomas said. “The Court has not heard [an] argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald…. Since that time, we have heard argument[s] in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment.”

The make-up of the Court has changed drastically since McDonald, following the additions of President Trump’s appointees, Brett Kavanaugh and Neil Gorsuch. Kavanaugh has previously weighed in on the constitutionality of gun bans, notably dissenting when the D.C. Circuit upheld the city’s assault-weapons ban in 2011.

“In my judgment, both D.C.’s ban on semiautomatic rifles and its gun registration requirement are unconstitutional under Heller,” he wrote. “There is no meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles. Semiautomatic rifles, like semiautomatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”

Americans may soon get a preview of which direction the current Court will move on guns when it issues its decision in the New York City gun-transportation case. In December, justices heard oral arguments in the New York City case and will decide whether to allow authorities to drop the case or rule on the merits. No matter the outcome in that case, both sides of the gun-control debate say the Supreme Court has the potential to shake up the entire course of legislative debates moving forward.

U.S. Supreme Court rejects challenge to ban on gun ‘bump stocks’

This case was less ‘RKBA’ as it wasn’t based on a 2nd Amendment argument, than about ‘Chevron Deference’ where the courts defer to bureaucraps when they tie themselves into a logic pretzel to come up with a regulation. And as I have just learned, this was a ‘only’ denial of cert for the preliminary injunction on the demand by ATF that bump stocks have to be destroyed or surrendered since they are considered contraband machinegun conversion devices, but whatever.

This provides more confirmation that the conservative side of the court probably considers Roberts the new ‘squish’ as it only takes 4 Justices to grant ‘cert’.
And that means among Kavanaugh, Gorsuch, Alito & Thomas they figured Roberts would side against them. Kavanaugh, Gorsuch have case history against ‘deference’ and Thomas has recently changed his mind and come around against it.

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday rebuffed a bid by gun rights advocates to overturn President Donald Trump’s ban on “bump stocks” – devices that enable semi-automatic weapons to fire rapidly like a machine gun – implemented after the 2017 Las Vegas mass shooting.

The justices left in place a lower court’s decision that upheld the Trump administration’s action to define bump stocks as prohibited machine guns under U.S. law.

The ban, which went into effect in March 2019, was embraced by Trump following a massacre that killed 58 people at a music festival in Las Vegas in which the gunman used bump stocks. It represented a rare recent instance of gun control at the federal level in a country that has experienced a series of mass shootings.

Numerous gun control proposals have been thwarted in the U.S. Congress, largely because of opposition by Republican lawmakers and the influential National Rifle Association gun rights lobby.

The Firearms Policy Foundation, a gun rights group, and other plaintiffs sued in federal court to try to reverse Trump’s action. The Supreme Court last year refused to block the ban from going into effect while the legal challenges against it were considered in the courts. The justices also refused to temporarily exempt from the plaintiffs in the case from the ban.

Court halts Trump asylum policy, then suspends its own order

“The tragedy of a man court who could not make up his its mind” 

SAN DIEGO (AP) — A 9th U.S. Circuit Court of Appeals panel voted unanimously Friday to suspend an order it issued earlier in the day to block a central pillar of the Trump administration’s policy requiring asylum seekers to wait in Mexico while their cases wind through U.S. courts.

The three-judge panel told the government to file written arguments by the end of Monday and for the plaintiffs to respond by the end of Tuesday……….

Government attorneys said immigration lawyers had begun demanding that asylum seekers be allowed in the United States, with one insisting that 1,000 people be allowed to enter at one location.

“The Court’s reinstatement of the injunction causes the United States public and the government significant and irreparable harms — to border security, public safety, public health, and diplomatic relations,” Justice Department attorneys wrote…….

The “Remain in Mexico” policy, known officially as “Migrant Protection Protocols,” took effect in January 2019 in San Diego and gradually spread across the southern border. About 60,000 people have been sent back to wait for hearings, and officials believe it is a big reason why illegal border crossings plummeted about 80% from a 13-year high in May.

Appeals court rules House can’t subpoena Don McGahn to testify

A federal appeals court in Washington, D.C., ruled Friday that former White House counsel Don McGahn doesn’t have to comply with a House subpoena to testify.

The opinion curtails Congress’ ability to force members of the executive branch to appear before committees for questioning.

The U.S. Circuit Court of Appeals for the District of Columbia’s opinion overturned a lower court’s decision in November that McGahn must testify in the House’s impeachment investigation………

The U.S. Circuit Court of Appeals for the District of Columbia’s opinion overturned a lower court’s decision in November that McGahn must testify in the House’s impeachment investigation….

‘Big Loss for Planned Parenthood’: Court Upholds Trump Admin’s ‘Protect Life’ Rules

A US appeals court has upheld Trump administration rules that prevent taxpayer money from being used for abortions.

The rules forbid clinics that receive federal funds through the Title X program from making abortion referrals and from sharing space with abortion providers. In other words, the Title X money is only supposed to used for health care needs, not to promote abortion.

In a 7-4 ruling, the 9th Circuit Court of Appeals dismissed arguments that the rule forces doctors to violate medical morals by withholding information from patients, Court News reports.

Title X funds are designed to help pay for family planning, cancer screenings, testing for sexually transmitted diseases, and other services, particularly for low-income patients. The “Protect Life” rule forbids grant recipients from using the funds to “perform, promote, refer to, or support abortion as a method of family planning.”

Planned Parenthood – America’s top abortion provider – announced last summer that it was pulling out of the federal family planning program rather than abide by the Trump administration rule the keeps participants from referring patients for abortions. At the time, critics said it was proof that Planned Parenthood is more concerned with performing abortions than providing actual health care for women.

US Department of Justice spokesperson Mollie Timmons said the agency was “pleased” by the new ruling.

“Congress has long prohibited the use of Title X funds in programs where abortion is a method of family planning and HHS’s recent rule makes that longstanding prohibition a reality. We look forward to continuing to defend this vital rule against all challenges.”

Pro-life advocates are commending President Donald Trump for keeping his campaign promise to defund Planned Parenthood.

SAF Seeks Record SCOTUS Review of Fourth Gun Rights Case

Attorneys for SAF and its lawsuit partner, the California Gun Rights Foundation, filed a brief to the high court on Friday. They are suing on behalf of plaintiff Lori Rodriguez. Her firearms were seized in 2013 after her husband was taken to a hospital on a mental health issue. A San Jose police officer at the time advised Rodriguez he had authority to seize all firearms in the residence, including those belonging solely to her, which were all locked in a California-approved safe. The guns were seized without a warrant, and over Rodriguez’s objection.

Political Cartoons by Tom Stiglich

Sotomayor issues blistering dissent, says Republican-appointed justices have bias toward Trump administration

Supreme Court Associate Justice Sonia Sotomayor issued a scathing rebuke of the court’s decision to allow the Trump administration to enforce its “public charge” rule in the state of Illinois, limiting which non-citizens can obtain visas to enter the U.S.

From the U.S. Citizenship and Immigration Services (USCIS):

Introduction

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits.

Sotomayor accuses the other justices of ‘pro-Trump’ bias?
I accuse her of anti-American bias.

Yeah, a $150 million lawsuit tends to concentrate the corporate mind

McClatchy Moves to Dismiss Devin Nunes’ Lawsuit, but Judge Grants Him Discovery

The McClatchy Company, a news media company that is being sued for defamation by House Intelligence Committee Ranking Member Devin Nunes (R-CA), moved to dismiss the lawsuit in court on Wednesday, but the judge in the case rejected the request — an interim win for Nunes.

McClatchy filed a motion to dismiss Nunes’ complaint, which was filed in Virginia’s Sixteenth Judicial Court, arguing that the Delaware-based company does not fall under the jurisdiction of Virginia because it has no significant business in the state.

However, Judge Cheryl V. Higgins did not grant McClatchy’s motion to dismiss the case but has granted Nunes discovery on the question. That means that McClatchy must prove that it does not have significant ties to Virginia by answering questions and providing information on assertions from Nunes. Higgins said the court may have to hear witness testimony on the question as well.

So………..

Newspaper giant McClatchy files for bankruptcy

WASHINGTON — McClatchy, one of the nation’s largest newspaper publishers, filed for bankruptcy protection Thursday, another harbinger of America’s deepening local-news crisis.

The Chapter 11 filing will allow the Sacramento-based company to keep its 30 newspapers afloat while it reorganizes more than $700 million in debt, 60 percent of which would be eliminated. If the plan wins court approval, control of the 163-year-old family publisher would be turned over to hedge fund Chatham Asset Management, its largest creditor. The company has obtained $50 million in financing from Encina Business Credit to maintain operations while it undergoes bankruptcy proceedings.

On Point: Fix the Foreign Intelligence Surveillance Court, and Punish the Crooks Who Abused It

Two months have passed since Dec. 9, 2019, the day Justice Department inspector general Michael Horowitz exposed the profound damage done to a judicial institution vital to successfully defending America in a world of complex threats: the Foreign Intelligence Surveillance Court, or FISC.

The damage done to American public trust in the court is not incidental. Trust is a source of strength, among friends or in the world’s most powerful nation. Trust promotes cooperation, which enhances systemic strength. When trust disappears, expect discord seeding division and weakness.

The FISC was created to protect a citizen’s constitutional rights while permitting intelligence community surveillance of legitimate suspects. To protect necessary cloak-and-dagger secrets, the FISC meets in secret. A secret court in a free society requires two things: (1) legitimate existential threats to citizens and assets: (2) trust in security agency professionalism and integrity, and trust in the judgment of the court judges.

Unfortunately, the abuse of the FISC by corrupt members of U.S. security and legal agencies — specifically within the FBI and DOJ — may have squandered that trust forever. Evidence is emerging that other corrupt actors, perhaps in the CIA, conducted illegal surveillance.

With the documented abuse acknowledged, America needs an FISC-type legal tool to combat covert threats like terrorism, transnational crime and enemy espionage. Twenty-first-century digital and financial connectivity, and commercial jet transportation, reduce police and Pentagon response time.

A FISC with integrity must also protect an American citizen’s constitutional rights from crooks and crony government. Horowitz discovered premeditated fraud on the FISC by a DOJ attorney. In 2016, the attorney “altered” email from “the other U.S. government agency” (CIA) and submitted a fraudulent application for a warrant to the court. So the FISC approved the warrant.

The target: Carter Page, a Naval Academy graduate and a former Trump presidential campaign associate. Spying on Page — an innocent man — opened a door to spying on President Donald Trump.

Following Horowitz’s report, the FISC’s then-presiding judge, Rosemary Collyer, issued a public order regarding the Page application and the FBI’s lack of “candor”: “The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court.”

Collyer should chastise herself as well. She and her colleagues failed to responsibly question the application. The FBI alleges a Naval Academy grad associated with a presidential campaign in an election year is a Russian asset? Judge, wake the hell up. Page was actually a CIA asset.

Trump administration Attorney General William Barr knows the court is a national security asset and wants to save it. On Feb. 6, he put his personal reputation on the line and issued a memo requiring the FBI to have him sign off on FISC applications. Harvard Law School professor Alan Dershowitz pegs the FISC’s structural weakness: Alleged perpetrators have no defender. So assign a lawyer to question government evidence.

To restore public trust, the individuals who abused the court must be investigated, arrested, tried, convicted and sent to prison. They committed an array of crimes — including criminal mishandling of classified material. The FISC is a classified court.

In the past, the public expected responsible reporters to scrutinize government operations. In the FISC saga, contemporary mainstream media served as a PR tool for crooked cops and spies. So-called elite press outfits like The New York Times and The Washington Post unquestioningly touted intelligence leaks that have proven to be false.

Though mainstream media outlets take scant notice, angry calls to disband the court have not faded. The decibels will increase when federal prosecutor John Durham’s investigation into the origins of the Russia collusion hoax becomes headline news.

I wager Durham will expose crony government at its worst — dirty government officials, bureaucrats and agents who are politically exploiting and criminally manipulating the U.S. national security structure to harm their political opponents.

We shall see.

 

Magazines over 10 rounds were well-known to the Founders
Third Circuit case challenges NJ magazine confiscation statute

Did the Framers of the Second Amendment consider the possibility that Americans might own firearms with a capacity greater than 10 rounds? Certainly yes. Such arms had been invented two centuries before the Second Amendment, and by 1791, repeating arms, including those capable of firing more than 10 rounds, were well-known in the United States. The history is explained in a Third Circuit amicus brief I coauthored last week.

Case background: In 2018, the New Jersey legislature prohibited the possession of magazines holding more than 10 rounds. The details of the statute are explained here by NJ firearms attorneys Scott Bach and Evan Nappen. The day the governor signed the legislation, the Association of New Jersey Rifle and Pistol Clubs sued the New Jersey Attorney General, asking for a preliminary injunction. District Court filings are available here. District Judge Peter G. Sheridan denied the preliminary injunction in September 2018. 2018 WL 4688345 (Sept. 28, 2018).

On expedited appeal, a 2-1  panel of the Third Circuit upheld the denial of the preliminary injunction in December 2018. 910 F.3d 106. Circuit Judge Patty Shwartz wrote the opinion, joined by Judge Joseph A. Greenaway, Jr. (Both are Obama appointees. Judge Shwartz’s seat was previously held by President’s Trump’s sister Marion Trump Barry; Judge Greenaway replaced Samuel Alito.) Judge Stephanos Bibas (former U. Penn. prof., appointed 2017 by Trump) dissented, writing “the majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.” 910 F.3d at 133–34.

After remand to the district court, the District Judge ruled that there was nothing more to do, since the Third Circuit majority had disposed of all issues. Plaintiffs disagreed, and the case has now returned to the Third Circuit for briefing.

Amici: The amici on the brief include seven professors who are experts in Second Amendment law: Royce Barondes (Missouri), Robert Cottrol (George Washington),
Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). Organization amici are the Firearms Policy Coalition, Firearms Policy Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute (where I work). The lead attorney on the brief was Joseph Greenlee, joined by me and by Prof. George A. Mocsary (U. Wyo. law school). Some of the material in the brief is covered in more detail in my article The History of Firearms Magazines and of Magazine Prohibition, 78 Albany Law Review 849 (2015).

Earliest repeating arms: A  repeater is a firearm that can fire more than one shot without having to be reloaded. The first known repeating firearms date back to between 1490 and 1530, with guns that fired 10 consecutive rounds. A 1580 gun could fire 16 shots. Once the user pressed the trigger, these guns would continue to fire until the ammunition was exhausted.

Seventeenth century: By the 1640s, major improvements in repeating arms had been developed. Now, the user could fire just one shot by pressing the trigger, and then fire more shots by pressing the trigger repeatedly. Danish rifles invented by Peter Kalthoff had ammunition capacities ranging from 6 to 30 rounds. During the seventeenth century, Kalthoff repeaters were copied by gunsmiths from London to Moscow.

At about the same time, the Lorenzoni revolver was invented in Italy, with a typical capacity of 7 shots. Like semiautomatic firearms (invented 1885), the Lorenzoni could self-reload. To fire the next shot, the user did not have to move a lever, bolt, or pump; the Lorenzoni could fire as fast the user could press the trigger–similar to modern revolvers or semiautomatics. The Lorenzoni was manufactured far and wide–including in New England. Famed diarist Samuel Pepys was much impressed with a demonstration he saw in London in 1664.

Early America: The Kalthoffs and Lorenzonis were not the only repeaters made during the century. For example, in the mid-1600s, some American repeaters were manufactured with revolving cylinders to hold the ammunition. Unlike the revolvers perfected by Samuel Colt in the 1830s, these revolvers required the user to rotate the cylinder by hand after each shot.

The French in North America had their own repeaters. For example, in 1690 the Comte de Frontenac “astonished the Iroquois with his three and five shot repeaters.” 1 Charles Winthrop Sawyer, Firearms in American History 29 (1910).

Eighteenth century: Before the industrial revolution, firearms manufacture was artisanal, with guns being made one at a time by gunsmiths. Repeating arms have more parts than single-shot guns, and the parts must fit more closely than in a single-shot. Accordingly, the necessary expertise and labor time to manufacture repeaters meant that repeaters were only affordable for the wealthier minority of the population.

Growing prosperity in the eighteenth century enabled more Americans to buy repeaters. Lorenzoni variants were popular, particularly 9 or 10 shot versions made by London gunsmith John Cookson, and by a New England gunsmith of the same name. In 1722, Boston gunsmith John Pim impressed some local Indians with an 11-shot repeater that he manufactured and sold. “[L]oaded but once,” it “was discharged eleven times following, with bullets, in the space of two minutes, each which went through a double door at fifty yards’ distance.” Samuel Niles, A Summary Historical Narrative of the Wars in New England, in Mass. Hist. Soc. Collections, 4th ser., vol. 5, at 347 (1837).

During the Revolution, inventor Joseph Belton demonstrated a 16 shot long gun. Witnesses, including Gen. Horatio Gates and scientist David Rittenhouse, were impressed, and the Continental Congress negotiated with Belton for a large order, but Belton wanted more money than Congress could afford.

Also during the Revolution, the British introduced their six-shot Ferguson Rifle (which might have made a difference in the war, if the British had manufactured enough of them) and the Nock Valley Gun (which shot seven rounds at once).

Early Republic: By the time the Second Amendment was ratified, the state-of-the-art
repeater was the Girandoni air rifle, which could shoot 21 or 22 rounds in .46 or .49 caliber. Although powered by compressed air, the Girandoni was ballistically equal
to a powder gun, and powerful enough to take an elk with a single shot. Many air guns of the time were equally powerful.

Originally invented for Austrian army sharpshooters, the Girandoni was manufactured in Russia, Germany, Switzerland, England–and Pennsylvania. Meriwether Lewis bought a Pennsylvania model, and carried on the Lewis and Clark Expedition. The gun is mentioned 22 times in Clark’s journal–usually in the context of the expedition showing off the gun to Indians, making the implicit point that the expedition could defend itself against a larger group.

Early nineteenth century: The 1820s brought a new type of repeaters: Isaiah Jennings’ 15-20 shot models, which were copied by Reuben Ellis for a military contract later in the decade.

Double-barreled guns (like today’s double-barreled shotguns) had long been popular, but the first repeating arms that could fire several shots and that were broadly affordable to the middle class were the pepperbox handguns of the 1830s. They held the ammunition in rotating barrels, one round per barrel. The most common pepperboxes held 4 to 8 rounds, while some held up to 24. The 12-shot Bennett and Haviland Rifle used a similar system.

Colonel Samuel Colt improved everything with his revolvers. Colt’s handguns only needed one barrel, while the ammunition was stored in a revolving cylinder.

Since the War of 1812, the federal armories at Springfield, Massachusetts, and Harpers Ferry, Virginia, had been working hard at learning how to mass produce firearms with interchangeable parts. The Springfield Armory worked closely with private entrepreneurs, gaining their knowledge and broadly disseminating its own knowledge. The federal armories became the foundation of “the American system of manufacture”–a term that caught on globally when Samuel Colt displayed his revolvers at the Crystal Palace Exhibition in London in 1853-54.

The government-led advances in firearms manufacturing helped made firearms, including repeaters, increasingly affordable. The American system of manufacture first spread from firearms to sewing machines and eventually to grain reapers, typewriters, bicycles, and automobiles. The prosperity created by the American system created a virtuous cycle in which Americans got richer and spent more money on manufactured goods, and the growing sales of the manufacturers led to improvements that continually increased quality and reduced price.

Mid-nineteenth century: By the 1850s, all sorts of repeating arms were being sold in America, including 21-round pinfire revolvers, 12 shot/6 chamber revolvers, the 15-round Hall rifle, the 38 or 60 shot Porter Rifles, and the 42 shot Ferris Wheel pistol.

But the most successful developments began with a collaboration of Daniel Wesson (later, of Smith & Wesson) and Oliver Winchester. They combined the recently-invented metallic cartridge (which holds the bullet, gunpowder, and primer in a metal cylinder) with the lever action (in which the user reloads the next round of ammunition by pulling a lever up and down). The lever action had been invented centuries before in England, but was not broadly affordable until the American system of manufacture.

The first Wesson and Winchester gun was the 30-shot Volcanic Rifle; introduced in 1859, it had reliability problems. The problems were solved in the successor model, the 16 shot Henry Rifle of 1861, which could fire its full capacity in 11 seconds. By 1862, Union solders were using Henrys in the Civil War.

Then as now, repeaters make self-defense possible for an individual who is attacked by a group. One of he most famous testimonials for the Henry came from Captain James M. Wilson of the 12th Kentucky Cavalry, who used a Henry Rifle to kill seven of his Confederate neighbors who broke into his home and ambushed his family. Wilson praised the rifle’s 16-round capacity: “When attacked alone by seven guerillas I found it to be particularly useful not only in regard to its fatal precision, but also in the number of shots held in reserve for immediate action in case of an overwhelming force.” H.W.S. Cleveland, Hints to Riflemen 181 (1864).

By the time the Fourteenth Amendment was before Congress, the Henry had been improved into the Winchester Model 1866 rifle, which could hold up to 18 rounds, depending on caliber. It was a major commercial success, especially in the West. The Model 1866 was succeeded by the Model 1873, with capacity from 6 to 25. Both Winchesters have deservedly been called “the gun that won the West.” The Model 1892 (15 rounds) was a favorite of Annie Oakley, and, later, of John Wayne.

As an alternative to the lever action, the pump action (the user pushes and pulls a slide underneath the barrel to load the next round) came on the market in the last quarter of the century, most famously with the 15-round Colt Lightning of 1884.

The next year brought the first functional semiautomatic firearm, the Mannlicher Model 1885. Before the end of the century, numerous models of semiautomatic pistols were on the market; some of them had magazines over 10 rounds, such as the Luger M1899, with an optional 32 round magazine.

As always, repeaters were essential for defense against group attacks. That is why anti-lynching crusader Ida B. Wells and other civil rights activists urged black people to buy repeating rifles for defense against lynch mobs. For the same reason, the Florida legislature in 1893 enacted the first American controls on particular types of firearms, after a repeating rifle was used to deter a lynch mob.

Magazine controls: In the 1920s and early 1930s, alcohol prohibition gave a tremendous boost to organized crime and intergang warfare. Starting in 1927, six states enacted laws regarding ammunition capacity: Rhode Island, Michigan, Minnesota, Ohio, California, and Virginia. None of these laws banned possession; some required a license or registration, or banned in-state sales, or simply forbade altering a firearm to change its original capacity (while allowing purchase of manufactured firearms with any capacity). A 1932 congressional statute for the District of Columbia banned semiautomatic firearms with a capacity of over 12.

All of the state laws were later repealed. The Heller case suggested that “longstanding” gun control laws have a better chance to be found constitutional than novel laws; to be “longstanding,” a law must be “long” and “standing,” and none of the repealed state laws qualify, since they are no longer standing. 1 Shorter O.E.D. 1625 (1993) (“adj. Of long standing; that has existed a long time, not recent.”). No magazine ban currently in force is older than the 15-round limit enacted by New Jersey in 1990. And three decades is hardly enough to be longstanding, considering that DC’s 1975 handgun had been in effect for 33 years until the 2008 Heller decision.

In sum, guns with ammunition capacity greater than 10 rounds have existed since the sixteenth century, were well-known to the Founders (including the Continental Congress), and were mass market consumer items by the time of the Fourteenth Amendment. Although the Second Amendment’s protection is not limited only to the types of arms that existed in 1791, the Second Amendment does protect the types of arms that did exist in 1791, and those included arms with ammunition capacity greater than 10.

Maglula Sues Amazon

Very eeenteresting. But how do you keep a bond-fide retailer from selling them online on Amazon, or eBay? I know, the article says that Amazon removed all the advertisements, but how many of them were actually for counterfeit items? I know several stores have an online ‘storefront’ on both Amazon and eBay.

Maglula filed a lawsuit on Dec. 12, 2019 against Amazon.com, alleging the online goliath was engaged in, “… trademark counterfeiting, trademark infringement, copyright infringement and unfair competition under federal, state and/or common law arising from Defendants Amazon.com, Inc.’s, and Amazon Service, Inc.’s, (collectively ‘Amazon’) unauthorized use of Maglula’s trademarks and copyrights in connection with the advertising, distributing, displaying, offering for sale, and/or selling of unlicensed, infringing an/or counterfeits of Maglula’s innovative loaders and unloaders…”

Maglula is an Israel-based company, established in 2001, that specializes in convenient and reliable magazine-loading devices. Its UpLula has become one of the industry’s most popular accessories because of the pocket-sized item’s ability to reduce the effort and time required to fill or unload pistol magazines. Shooting Illustrated covered one of its most recent introductions tailored for bullpup fans; the Maglula Steyr AUG StripLULA Magazine Loader.

By Jan. 13, Amazon.com removed all of Maglula’s products and alleged counterfeits from its website, including the UpLula. The products do, however, remain for sale on some authorized online retailers with poor copies offered elsewhere. The firm asks customers to keep in mind, “Maglula Ltd. does not sell online. Please shop for genuine loaders at local gun shops and web-stores you trust, and from: Academy Sports + Outdoors, Bass Pro Shops, Brownells, Cabela’s, Cheaper Than Dirt, Dick’s Sporting Goods, Gander RV & Outdoors, Midway USA, Shop Ruger, Scheels, Sportsman’s Warehouse, [and] Turner’s Outdoorsman.”

Prior to the case the company warned on its website that, “Low-quality Chinese knockoffs of our patented UpLula universal pistol magazine loaders are often offered for sale on Amazon, eBay and elsewhere.” It recommends, “If you suspect receiving a knockoff loader, please take a few pictures of the packaging and loader and send it to info@maglula.com. We’ll let you know knockoff or genuine.” Photos of some of the counterfeits are also posted.

The problem’s not new or limited to the firearm industry. In 2016, for example, Apple filed a lawsuit [PDF] against Amazon.com that claimed, among other things, the company purchased 12 power adapters from the online goliath that, “…were identified in the Amazon.com listings as genuine Apple products, often using Apple’s copyrighted marketing images. Upon careful examination of the products, Apple determined that, although the products bore the Apple Marks and were sometimes in packaging bearing Apple’s copyrighted works, the products were not genuine Apple products at all, but were counterfeit.”

Official estimates in 2017 put the value of counterfeit product sales online annually at $1.7 trillion. Since 2000, seizures of contraband products by U.S. Customs and Border Protection have increased 1,000 percent.

 

McConnell Triumphant: Immediately After Impeachment Acquittal Files Cloture On More Judges To Remake Judiciary

On Wednesday, Senate Majority Leader Mitch McConnell wasted no time after the Senate acquitted President Trump in his impeachment trail, immediately filing cloture on a number of judges as he continued his relentless march toward remaking America’s judiciary with a conservative bent.

The judges included
Andrew Lynn Brasher to be U.S. Circuit Judge for the Eleventh Circuit,
Joshua M. Kindred to be U.S. District Judge for the District of Alaska,
Matthew Thomas Schelp to be U.S. District Judge for the Eastern District of Missouri,
John Fitzgerald Kness to be U.S. District Judge for the Northern District of Illinois, and
Philip M. Halpern to be U.S. District Judge for the Southern District of New York.

In March 2019, Politico reported that McConnell was intent on moving as quickly as he could to get conservative judges confirmed:

The Senate is on track to confirm the 34th Circuit Court judge of Trump’s presidency in the next week and the GOP has three more ready for floor action; that would give Trump roughly 20 percent of the Circuit Court seats in the country after just two years in office. At this rate, McConnell and Trump could leave few, if any, vacancies there for a potential Democratic president in 2021.

Even more alarming for Democrats, the GOP is also preparing to pull the trigger on the “nuclear option” and change Senate rules once again with a simple majority to allow much quicker confirmation of lower court judges in the coming months. …

Trump currently has 128 District Court vacancies to fill, and each one can take multiple days under current rules if any senator demands a delay; if Republicans change the rules, Trump could conceivably fill most of those over the next 20 months.

Speaking with radio host Hugh Hewitt in December, McConnell stated:

Just to put it in perspective, President Obama appointed 55 Circuit judges in 8 years. President Trump with our Senate confirmation has done 50 in 3 years. So the pace is dramatic. What these men and women have in common is they’re all young, they’re all smart. A heavy percentage of them have been Supreme Court clerks. They’ll be on the court for a very long time, and what they have in common is what Justice Scalia used to say – the job of a judge is to follow the law and the Constitution.

You would think that wouldn’t be such a quaint notion, but among Democratic appointees, that’s been their approach. President Obama tipped his hand when he said he wanted to appoint judges who had empathy. Well, that’s great if you’re the litigant for whom the judge has empathy, not so good if you aren’t.

Florida justices skeptical of proposed assault weapons ban
One of the justices called one of the provisions “prohibitively misleading.”

TALLAHASSEE — Florida Supreme Court justices on Tuesday cast a skeptical eye on a constitutional amendment banning assault weapons, with the chief justice calling part of it “prohibitively misleading.”

The proposed amendment, drafted after the 2018 Parkland massacre, would outlaw a variety of weapons and require current owners to register them with the state. Organizers missed the deadline to go before voters this fall and they’re now aiming for 2022.

Lawyers for Attorney General Ashley Moody and the National Rifle Association argued Tuesday that the amendment is overly broad and applies to far more weapons than AR-15s and other semi-automatic rifles, which the public commonly views as “assault weapons.”

NRA attorney George Levesque said the ban could even apply to even pellet guns and paintball guns.

“The average voter is not going to appreciate that and they’re going to be confused by that,” Levesque said.

But justices largely glossed over those arguments, focusing instead on one particular sentence in the ballot summary.

The sentence says the amendment “exempts and requires registration of assault weapons lawfully possessed prior to this provision’s effective date.”

The lawyer who crafted that language, Jon Mills, said it meant that current owners of assault weapons were exempt from the ban, but that they had to register their weapons. When the person died, they could not hand them down to a family member or anyone else. The weapon would have be turned over to authorities.

But Chief Justice Charles Canady read it differently. The sentence, he said, says the weapon itself is exempt from the ban, he said, meaning that the weapon could be transferred to another person after the ban takes effect.

“I don’t know how anybody could get an idea from that that when the person who possessed it trundles off this earth, then all of a sudden that weapon becomes illegal and is no longer exempt,” Canady said. “If it means that, if I’m reading it correctly, then that is prohibitively misleading.”

Mills said that interpretation was “completely nonsensical,” noting that if that were true, the amendment would allow someone to buy up thousands of assault weapons before the ban takes effect, then sell them after it takes effect.

“It says what it says,” Canady responded. “I didn’t write this.”

Before constitutional amendments go before voters, justices have to decide whether the proposals deal with only a single subject and has a fair ballot summary. If justices decide the summary is misleading, organizers would have to start over.

The amendment would ban all “assault rifles,” which it defines as “semiautomatic rifles and shotguns capable of holding more than 10 rounds of ammunition at once, either in fixed or detachable magazine, or any other ammunition-feeding device.” It does not apply to handguns.

“It seems to me that the chief purpose of this amendment is to eliminate long guns in the State of Florida within a generation,” Justice Ricky Polston said.

Mills said that it only applies to semi-automatic long guns. Bolt-action rifles, which require the user to pull a lever in between each shot, would be permitted.

The committee gathering signatures for the amendment is Ban Assault Weapons Now, whose chairwoman, Gail Schwartz, lost her nephew, Alex Schachter, in the 2018 Parkland massacre. The gunman was wielding an AR-15-style rifle.

SAF CHALLENGE TO ILL. NON-RESIDENT CCW PROHIBITION GETS BACKING FROM STATE AG’s

BELLEVUE, WA – Eighteen state attorneys general have joined in an amicus brief to the U.S. Supreme Court supporting a Second Amendment Foundation petition for writ of certiorari seeking high court review in the case of Culp v. Raoul, which challenges the refusal by Illinois to take applications from non-residents for an Illinois carry license.

Plaintiffs are asking the Court to determine “Whether the Second Amendment right to keep and bear arms requires that the State of Illinois allow qualified non-residents to apply for an Illinois concealed carry license.” SAF is joined by the Illinois State Rifle Association, Illinois Carry and several private citizens. They are represented by attorney David G. Sigale of Wheaton.

The amicus brief, submitted by Missouri Attorney General Eric S. Schmitt, is joined by attorneys general from Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

While Illinois statute says the State Police “shall by rule allow for nonresident license applications from any state or territory of the United States with laws related to firearm ownership, possession, and carrying, that are substantially similar to the requirements to obtain a license” in Illinois.

“However,” the petition for review says, “that right to concealed carry is denied, in a discriminatory and arbitrary manner, to the law-abiding and qualified persons in 45 states, who are prohibited from even applying for an Illinois concealed carry license (“CCL”), regardless of their qualifications. Therefore, Illinois’s prohibition on virtually all non-residents obtaining a concealed carry license for self-defense violates the Petitioners’ rights under the Second Amendment.”

“We’re grateful to the 18 attorneys general for joining the amicus, on behalf of the residents of their respective states,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The right to bear arms does not end at the Illinois state line, and untold numbers of citizens from other states have occasion to travel to or through Illinois and they should not be expected to leave their right of self- defense at the border.”

INJUNCTION GRANTED AGAINST PENNSYLVANIA STATE POLICE’S POLICY RELATING TO “PARTIALLY-MANUFACTURED FRAMES AND RECEIVERS”

Today, Chief Counsel Joshua Prince of the Firearms Industry Consulting Group and Attorney Adam Kraut, Director of Legal Strategy at Firearms Policy Coalition, were successful in the case of Landmark Firearms, LLC, et al. v. Evanchick, 694 M.D. 2019, in obtaining an injunction against the Pennsylvania State Police’s implementation and enforcement of its “policy” regarding what it refers to both as “partially-manufactured frames and receivers” and “80% receivers.”

In a 17 page decision, Commonwealth Court Judge Kevin Brobson found that the Pennsylvania State Police, in implementing and enforcing its policy, violated the due process rights of Pennsylvania residents and businesses, as well as, businesses from other states. Specifically, the Court declared

With respect to Petitioners’ due process claim in Count III and their claim in Count IV that the PSP Letter is void on the ground of vagueness, however, the Court concludes Petitioners have demonstrated a substantial legal question.

The Court continued on to specifically declare

The Court agrees with Petitioners that there is a substantial legal question as to whether PSP’s new policy regarding partially manufactured receivers is impermissibly vague.

As the Court explained

The term frame or receiver is not defined in the UFA, PSP has not promulgated any regulations to define what constitutes a frame or receiver, and PSP is no longer following the ATF’s lead regarding what constitutes the frame or receiver of a weapon. Rather than clarify, the new PSP policy adds confusion by introducing a new term” partially manufactured receiver”-and a new form-Form SP 4-121-into the mix of gun regulations without an explanatory bridge tying them back to the UFA.
Guidance to the firearms industry and the public on this change in policy is critical. The only document that currently sets forth PSP’s change in interpretation is the PSP Letter. That letter merely sets forth the blanket statement that partially manufactured receivers are considered firearms with respect to certain sections of the UFA, without providing a definition of the term partially manufactured receiver; a description or examples of the products that PSP believes, under its new interpretation, fall within the sweep of the statutory definition of firearm; or any guidance as to how this new term will be interpreted and applied by PSP going forward. The mere mention of the AG Opinion is not enough to provide fair notice or warning to the public as to how sellers or purchasers of this undefined class of unfinished receivers may comply with the UFA and avoid criminal prosecution. Due process demands more.

…

All of this-(1) PSP’s failure to explain how its new policy on partially manufactured frames or receivers differs from its prior policy and that of the ATF, such that those subject to the UFA have fair notice of PSP’s change in policy; (2) PSP’s failure to tether its new policy to the text of the UFA, particularly the term “frame or receiver” in the relevant definition of firearm; (3) the introduction of a new term, partially manufactured receiver, as opposed to simply defining what a “frame or receiver” is under the UFA as including what PSP now seeks to capture; and ( 4) the deployment of a new form to be used with respect only to sales/transfers of a subclass of firearms, which lacks any level of specificity, where PSP regulations provide for a specific form to be used in all firearms transactions under the UFA sows confusion within the industry and the public.

Thereafter, the Court acknowledged that the PSP’s “Policy” constitutes per se irreparable harm, that an injunction returns the parties to the status quo, and that the “public policy of this Commonwealth does not favor such vague laws.”

As such, the Court issued the following Order:

AND NOW, this 31st day of January, 2020, Petitioners’ Application for Relief in the Nature of a Preliminary Injunction is GRANTED. Colonel Robert Evanchick, Commissioner of the Pennsylvania State Police (PSP), and his agents, servants and officers, are enjoined from implementing or enforcing PSP’s new policy addressed to partially manufactured receivers, as currently set forth in PSP’s Letter of January 9, 2020, until final disposition of the Petition for Review, including appeals.

As specified in the Order, the preliminary injunction will not issue until we pay a $100.00 cost bond, which will be paid on Monday.

The forgoing bringing this to mind:

A 9th Circuit dissent by Judge Alex Kozinski:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

Neil Gorsuch Issues rebuke to Activist Judges and Nationwide Injunctions

Apropos of the previous item about immigration:

In the 5-4 decision allowing the rule to go into effect, Justice Gorsuch issued a concurring opinion rebuking activist judges and their rush to apply “nationwide injunctions” against Trump administration policies. Edited for easier reading and deleting some case cites

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the grant of stay.
On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws.
Approximately 10 months and 266,000 comments later, the agency issued a final rule.
Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it concurring to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results.

The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia.
The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally.
But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits.
Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit.
And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If all of this is confusing, don’t worry, because none of it matters much at this point.

Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.

The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.
Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois.
But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem.
The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.
Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.
Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place.
But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III………….

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice.
As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.
Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal.

Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years.
And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.

The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decision making process.

The rise of nationwide injunctions may just be a sign of our impatient times.
But good judicial decisions are usually tempered by older virtues.
Nor do the costs of nationwide injunctions end there.
There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.
Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.

The risk of winning conflicting nationwide injunctions is real too.
And the stakes are asymmetric.
If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.
A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.
And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari.

What in this gamesmanship and chaos can we be proud of?

I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.