{"id":98759,"date":"2023-12-23T09:41:59","date_gmt":"2023-12-23T15:41:59","guid":{"rendered":"https:\/\/milesfortis.com\/?p=98759"},"modified":"2023-12-23T09:41:59","modified_gmt":"2023-12-23T15:41:59","slug":"98759","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=98759","title":{"rendered":""},"content":{"rendered":"

The Great Legal War Over Your Freedom<\/a><\/p>\n

Since the U.S. Supreme Court decided\u00a0New York State Rifle & Pistol Association v. Bruen<\/em>\u00a0in 2022, the lower courts have been either trying to apply, or to resist, its directive to decide the validity of restrictions on the basis of the text of the Second Amendment and historical analogues from the time of the Founding. According to the ruling, an activity is presumed to be protected if it involves keeping and bearing arms by the people. The burden is then on the government to find historical precedents to show that a restriction is part of the nation\u2019s history and tradition.<\/p>\n

The Fifth Circuit Court of Appeals applied\u00a0Bruen<\/em>\u00a0to the federal ban on gun possession by a person subject to a domestic violence restraining order (DVRO) and found it to violate the Second Amendment. State DVROs are often issued with little pretense of an adversary hearing or are mutually agreed upon in divorces without knowledge that it evokes a federal gun ban.<\/p>\n

The Supreme Court agreed to hear the case,\u00a0U.S. v. Rahimi<\/em>, and a barrage of amicus briefs have been filed on both sides. Mr. Rahimi faces several state charges involving actual violence, dwarfing the federal possession charge. The amicus brief of the National Rifle Association put it this way: \u201cRahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties\u2014if the allegations against him are ultimately proven true with sufficient due process. But constitutional safeguards cannot be set aside to obtain those ends.\u201d<\/p>\n

Consider the supposed historical analogues cited by Biden\u2019s Justice Department and its amici\u2014discriminatory laws disarming Catholics, slaves and \u201ctramps\u201d; confiscation of arms by oppressive British monarchs and by our own patriots in the American Revolution (there was a war going on, after all); and wholly irrelevant laws against gun sales to children and intoxicated persons. The Court heard oral arguments in the case on Nov. 7, 2023.<\/p>\n

The Third Circuit, in\u00a0Range v. Merrick Garland<\/em>, held the federal ban on gun possession by felons to be unconstitutional as applied to a person convicted of a minor, non-violent offense.\u00a0 Again, no laws in the Founding era disarmed persons who were not dangerous. The government is asking the Supreme Court to hear that case after it decides\u00a0Rahimi<\/em>.<\/span><\/p>\n

When it decided\u00a0Bruen<\/em>, the Supreme Court directed the Fourth Circuit to reconsider its upholding of Maryland\u2019s \u201cassault weapon\u201d ban in\u00a0Bianchi v. Frosh<\/em>. That court had held that ordinary AR-15 semi-automatic rifles are not really different from machineguns and are \u201cweapons of war most useful in military service,\u201d even though no military force in the world issues them as service rifles.<\/p>\n

The Fourth Circuit got right on it, holding its oral argument on Dec. 6, 2022. A year later, crickets. Still no decision. Is it really so hard to apply\u00a0Bruen<\/em>\u2019s simple tests, or would the court not like the result?<\/p>\n

<\/p>\n

Another \u201cassault-weapon\u201d case is pending in the Seventh Circuit, involving the recent ban passed by the state of Illinois and similar ones passed by Illinois localites. In the\u00a0Bevis\u00a0<\/em>case, a Chicago court denied a preliminary injunction based on the \u201cparticularly dangerous\u201d nature of ordinary AR-15s. In\u00a0Barnett v. Raoul<\/em>, the District Court for the Southern District of Illinois issued a preliminary injunction based on the Supreme Court\u2019s \u201ccommon-use\u201d test, but the court of appeals reversed it. So, the Illinois ban remains in limbo.<\/p>\n

Now on to the reliably anti-gun Ninth Circuit. When it decided\u00a0Bruen<\/em>, the Supreme Court told the Ninth, flat out, to reconsider\u00a0Duncan v. Bonta<\/em>, in which the Ninth upheld California\u2019s magazine ban. The court could have easily invalidated the ban, but instead sent it back down yet again for reconsideration by District Judge Roger Benitez. After a trial, Judge Benitez again held the magazine ban unconstitutional, this time in a 71-page opinion, and issued a permanent injunction against its enforcement.<\/p>\n

The Ninth Circuit, en banc, stayed the injunction except as to the possession ban on magazines lawfully acquired before the lower court\u2019s order. Dissenting, Judge Lawrence VanDyke wrote, \u201cThe story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion.\u201d<\/p>\n

When it decided Bruen,\u00a0the U.S. Supreme Court directed the Fourth Circuit to\u00a0<\/span>reconsider its upholding of Maryland\u2019s \u201cassault weapon\u201d ban\u00a0in Bianchi v. Frosh. The Fourth Circuit held its oral argument on December 6, 2022. A year later, crickets. Still no decision.\u00a0<\/span>Is it really so hard to apply Bruen\u2019s simple tests?<\/span><\/span><\/p>\n

The Ninth Circuit also remanded\u00a0Miller v. Bonta\u00a0<\/em>back to Judge Benitez, who earlier found California\u2019s ban on \u201cassault weapons\u201d violative of the Second Amendment. The judge again invalidated and enjoined the prohibition on such commonly possessed rifles, and the state is off to the Ninth. D\u00e9j\u00e0 vu all over again.<\/p>\n

California bans the retail sale of semi-automatic pistols that do not have a chamber-load indicator, a magazine-disconnect mechanism and microstamping capability (a futuristic design in which the firing pin imprints the identity of the pistol on the primer when fired). In\u00a0Boland v. Bonta<\/em>, Judge Cormac Carney of the Central District of California issued a preliminary injunction against all three requirements. Predictably, the Ninth Circuit stayed the injunction, except for the part applicable to microstamping. Perhaps to moot the microstamping issue for now, the California legislature recently amended the requirement to apply only to semi-automatic pistols manufactured after Jan. 1, 2028.<\/span><\/p>\n

There has been a major development regarding prohibitions on the sale and carrying of firearms by young adults aged 18 to 20. The issue should be a no-brainer, given that the Second Amendment protects the right of \u201cthe people\u201d to keep and bear arms, the Militia Act of 1792 required male citizens aged 18 to 44 to acquire and carry firearms and young adults are eligible for military service. Despite that, Florida law bans the sale of a firearm by a licensed dealer to a person aged 18 to 20.<\/p>\n

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, in\u00a0NRA v. Bondi<\/em>, upheld Florida\u2019s law. Contrary to\u00a0Bruen<\/em>, it ignored the lack of any such sales restriction at the Founding and relied on a handful of late 19th<\/sup>-century laws as analogues. This method would be unthinkable as applied to any other guarantee in the U.S. Bill of Rights.<\/p>\n

Just hours after the\u00a0Bondi<\/em>\u00a0decision was announced, a judge withheld issuance of the mandate in the case (a procedure that would have made the decision final), and later a majority on the court voted to vacate the panel decision and rehear the case en banc.<\/p>\n

Just after the panel decision in\u00a0Bondi<\/em>, the U.S. District Court for the District of Minnesota, in\u00a0Worth v. Harrington<\/em>, held that young adults aged 18 to 20 are protected by the Second Amendment in obtaining permits to carry handguns. The state has appealed that decision to the Eighth Circuit.<\/p>\n

Turning to the subject of the right to carry handguns regardless of age,\u00a0Bruen<\/em>\u00a0invalidated New York\u2019s law that issued permits to a favored few and held that law-abiding citizens generally are entitled to carry without showing a special \u201cneed.\u201d Seeking to nullify that decision, New York enacted laws banning permit holders from carrying a firearm in most public places, including public transit, churches and synagogues and public parks. To carry a gun into a business open to the public, a sign must be posted inviting gun owners; otherwise, carrying there is a felony. That turns upside-down the normal rule requiring a \u201cno-trespassing\u201d sign to exclude persons for whatever reasons.<\/p>\n

In\u00a0Antonyuk v. Hochul<\/em>\u00a0and in\u00a0His Tabernacle Family Church v. Nigrelli<\/em>, and other cases, district courts held the New York ban likely to violate the Second Amendment and issued preliminary injunctions against its enforcement. The Second Circuit court of appeals summarily stayed the injunctions without explanation. While the Supreme Court denied a motion to vacate the stay in\u00a0Antonyuk<\/em>, Justice Alito admonished the Second Circuit to expedite the appeal.<\/p>\n

The Second Circuit held oral argument in the cases on March 30, 2023. And since then? Again, crickets. Despite the hundreds of pages of legal history set forth in the district court opinions, and the existence of a fundamental constitutional right at stake, the court of appeals has remained silent.<\/p>\n

As if to snub\u00a0Bruen<\/em>, New Jersey enacted a similar ban to that of New York. In a\u00a0230-page\u00a0<\/em>opinion, the district court issued a preliminary injunction against enforcement of several of its provisions in\u00a0Koons v. Platkin<\/em>. The Third Circuit granted a stay of the injunction against enforcement of the provisions that are claimed to be about \u201csensitive places,\u201d such as parks and public gatherings. It left the injunction in place against the requirement that a permit holder must keep a handgun unloaded and in the trunk of a motor vehicle, and the ban on carrying a firearm into a business open to the public unless a \u201cWelcome Gun Owners\u201d sign is posted.<\/p>\n

\"Hunter<\/p>\n

Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has been attempting to foist new, far-reaching regulations upon American gun owners. In violation of the separation-of-powers under which Congress makes the law and the executive branch enforces the law, the ATF purports to expand its reach on its own.<\/p>\n

The first regulation seeks to expand the definitions of \u201cfirearm\u201d and \u201cframe or receiver\u201d in the Gun Control Act (GCA) to include partially machined raw material that the GCA doesn\u2019t restrict. In\u00a0VanDerStok v. Garland<\/em>, the U.S. District Court for the Northern District of Texas vacated the entire set of regulations, the Fifth Circuit substantially approved, but the Supreme Court allowed the regulation to go into effect for now. After that, the district court issued a preliminary injunction against enforcement of the regulations against the plaintiffs in the case.<\/p>\n

While\u00a0VanDerStok<\/em>\u00a0focuses on the attempt by the ATF to exceed its authority under the GCA, Second Amendment rights are implicated by the attempt of bureaucrats to restrict the right to keep and bear arms in a manner not condoned by Congress, much less by the text and history of the Second Amendment.<\/p>\n

In the second ATF regulation change, after years of classifying pistols with stabilizing braces as pistols, the ATF promulgated a regulation classifying them instead as short-barreled rifles under the National Firearms Act. In\u00a0Mock v. Garland<\/em>, the Fifth Circuit held that the rule is likely invalid and temporarily enjoined its enforcement. Concurring, Judge Don R. Willett wrote, \u201cRearward attachments, besides making a pistol less concealable, improve a pistol\u2019s stability, and thus a user\u2019s accuracy. Accuracy, in turn, promotes safety.\u201d<\/p>\n

Back in the district court, Judge Reed O\u2019Connor enjoined enforcement of the pistol-brace rule as applied to the plaintiffs, their customers and members of the association that is party to the suit. Besides violation of the Administrative Procedure Act, the regulations were found to violate the Second Amendment. Pistols with braces number as many as seven million and are \u201cin common use,\u201d which\u00a0Heller<\/em>\u00a0held to be one aspect of the test. The Second Amendment protects \u201cmaking common, safety-improving modifications to otherwise lawfully bearable arms,\u201d as well as \u201cthe right of personal gunsmithing.\u201d<\/p>\n

The third change involves the ATF proposing new regulations seeking to expand the definition of \u201cengaged in the business of dealing in firearms\u201d in a way that would require untold numbers of ordinary gun owners to get dealer licenses. In the GCA, Congress defined the term to require \u201cdealing in firearms as a regular course of trade or business to predominantly earn a profit,\u201d excluding occasional sales. The ATF has now made up a list of actions that create a presumption that one is engaged in the business, such as \u201crents … temporary physical space to display … firearms they offer for sale, including … a table or space at a gun show.\u201d<\/p>\n

So while the Biden administration\u2019s \u201czero-tolerance\u201d policy seeks to drive actual dealers out of business\u2014guns are too available, you know\u2014the proposed regulation seeks to make as many as possible get dealer licenses. The motive is clear: \u201cuniversal background checks\u201d couldn\u2019t get through Congress, so they want to force people who aren\u2019t actually dealers to get licenses and do checks anyway. To exercise the right to buy and sell a gun occasionally, you\u2019ll have to get a license, keep records and be subject to inspection by the ATF. That cannot be consistent with the Second Amendment, and litigation will definitely break out once final regulations are adopted.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Great Legal War Over Your Freedom Since the U.S. Supreme Court decided\u00a0New York State Rifle & Pistol Association v. Bruen\u00a0in 2022, the lower courts have been either trying to apply, or to resist, its directive to decide the validity of restrictions on the basis of the text of the Second Amendment and historical analogues … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,23,9,50,24,8],"tags":[],"class_list":["post-98759","post","type-post","status-publish","format-standard","hentry","category-bureaucraps","category-courts","category-enemies-foreign-domestic","category-goobermint","category-rights","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/98759","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=98759"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/98759\/revisions"}],"predecessor-version":[{"id":98760,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/98759\/revisions\/98760"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=98759"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=98759"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=98759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}