According to legal sources, it seems the Ninth Circuit has issued an order for an en banc hearing in Peruta. It might be the bit of pessimist in me, but I doubt this is good news for gun owners in the Ninth Circuit.
If you’re an attorney or just interested in firearms laws, then you shouldn’t miss the National Firearms Law Seminar at the NRA annual meeting.
I have to say that this year’s program really stands out for the combination of nationally known speakers, as well as the practical topics covered a bit more in-depth by some of the lawyers working on Second Amendment issues you may not have heard about yet.
For one, the lunch speaker is Glenn Reynolds of Instapundit fame. Having heard him speak before, I can say that he always delivers a really good presentation that informative as well as entertaining. The program notes that his lunch speech will look at “the transformation of the Second Amendment from an ‘embarrassing’ outlier to the Bill of Rights, to a provision that, like other parts of the Bill of Rights, protects identifiable individual rights in court.” Massad Ayoob will be giving a presentation on armed self-defense, highlighting mistakes “by the shooter at the scene, and by defense counsel in court.” That should be quite interesting, even for the non-attorney.
In my opinion one of the most interesting topics looks like it could end up being the session on the Brady Campaign’s recent litigation strategy against individual FFLs. The description of this talk by Cord Byrd notes that they have been “utilizing state laws including negligent entrustment, negligence per se and public nuisance to circumvent the protections afforded by the Protection of Lawful Commerce in Arms Act.” Then you have the always wonderful Sarah Gervase who packs so much practical information for attorneys into her topics each year talking about civil rights actions in firearms cases for this year’s Nashville seminar.
Registration is online, and there are discounts for various folks – law students, those who only want to attend the lunch speech by Glenn Reynolds, just a half day, and even for non-attorneys. There’s pretty much no way that you won’t walk out of the sessions learning something new if you choose to attend.
Even as someone who isn’t a practicing attorney and who doesn’t do the legal analysis for the blog, there’s usually something I pick up that gives me so much more context and understanding about the cases we hear about during the next year. More importantly, as I’ve met many people who maybe had a little minor offense, often nothing related to firearms at all, when they were 18 who are still paying a penalty with their firearms rights when they are 68 over the years, I’ve realized how invaluable it is that defense attorneys should know at least something about this area of law and how it impacts their clients.
I’m a little late on this news, because I had originally wanted to read the opinion, but I did not end up finding the time. The magazine restrictions by Sunnyvale, California were upheld in the 9th circuit last week. All these stories are basically the same: a lot of judges hate the Heller decision, because they don’t particularly like the Second Amendment, so they will use any reasoning they can to gut it.
While this case will no doubt be appealed, I’m not certain if I feel comfortable taking a magazine case to the Supreme Court, for fear it’ll lose. I’d rather get more case law first, and at least get lower courts out of the mindset of open resistance to the will of the Supreme Court on the Second Amendment.
The Supreme Judicial Court of Massachusetts rules that a stun gun is a “dangerous and unusual” weapons, and thus not protected by the Second Amendment, so banning them is fine. No need for a Second Amendment analysis, as there is just no right at issue here.
We acknowledge that stun guns may have value for purposes of self-defense, but because they are not protected by the Second Amendment and because a rational basis exists for their prohibition, the lawfulness of their possession and use is a matter for the Legislature.
How long is the Supreme Court going to let lower courts thumb their noses at them? The next level of appeal for this is the Supreme Court of the United States. Maybe it might be worth trying a non-firearm case. Also, note, the Court here only recognized there was a Second Amendment right to a gun in the home. That’s it. It’s like they never even bothered to read the rest of the decision, which recognized the right as not being one limited to the home.
Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms. This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe Huffman for the tipoff.
The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.
The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.
The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunate tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.
Despite today’s ruling, I’m fairly certain that most Federal Firearm Licensees are not going to sell to out of state buyers until they have guidance from ATF telling them it’s OK to do so. I don’t know whether or not that guidance will be forthcoming, and the government is almost certain to appeal the ruling and ask the Court of Appeals to stay the judges injunction until the appeals court rules. So celebrate, because we did win a victory, but don’t run off to a neighboring state to buy a handgun just yet. The current ruling enjoins the federal government from enforcing that provision of the Gun Control Act, but they could be permitted to enforce it again in the not too distant future. FFLs will wait until this case is fully litigated before beginning sales of handguns to out-of-state residents.
I saw someone ask whether this ruling would mean the approved handgun roster in Massachusetts would become dead letter in effect, if not in law. Keeping in mind I’m a lay person and not a lawyer, by my reading of the law, it may. Massachusetts law allows for purchasing firearms out of state, provided that you register them within seven days. The law about selling only handguns on their roster only applies to Massachusetts licensed dealers. So a New Hampshire dealer, not being a Massachusetts licensee, would not violate Massachusetts state law by selling an unapproved handgun. Federal law requires that the sale not violate the laws of either state. In this case it does not. California is another story, since it prohibits residents from buying out of state. Of course, all Massachusetts would have to do is, in the definition of licensee, add federally licensed dealers, and then out-of-state dealers would be forced to comply. So in short, it could endanger the handgun roster, but I’d be surprised of the legislature doesn’t change the law to preserve it. Of course, given the lack of guidance from ATF, chances are no out-of-state dealer would be willing to sell an off roster gun to a MA resident.
While private sales were not specifically challenged in this case, because of how federal law is worded, 922 (a)(3), which prohibits interstate transfers between non-licenseees, had to be struck in order to allow interstate sales through an FFL after 922(b)(2) was struck, since it would have been illegal to bring a firearm back after you purchased it. However, 922 (a)(5) was not enjoined, so it remains illegal to sell a firearm to someone from out of state, and so under conspiracy would also be illegal to buy from a seller if you’re not a resident of the same state as the seller. Again, I would ensure that everyone is aware that just because they are enjoined today does not mean they will be enjoined tomorrow, so there would be risk in conducting any interstate transfer that wouldn’t have been legal yesterday.
UPDATE: I’ve revised this post to incorporate some new information, and to make it more accurate. I’d also note on the scope of the ruling, Dave Hardy says that it’s unclear. I had previously thought it was worded such that it applied nationally, but then was told by someone who is an attorney that it would only apply in the 5th circuit. But Dave Hardy isn’t so sure.
One of Alan Gura’s cases, Mance v. Holder just won in district court. This case challenged the ban on interstate transfers of handguns through an FFL. You can find the opinion here.
In the absence of any evidence of founding-era thinking that contemplated that interstate, geography-based, or residency-based firearm restrictions would be acceptable, the Court finds that the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.
To obtain a handgun from an out-of-state FFL retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one. Restricting the distribution channels of legal goods protected by the Constitution to a small fraction of the total number of possible retail outlets requires a compelling interest that is narrowly tailored.
The court applied strict scrutiny, and despite the government’s attempts to argue they needed the restriction in order to prevent criminals from circumventing state guns laws, the judge wasn’t buying it. What’s also very interesting is that he argues that the Brady Act changed the game for the GCA ’68 restrictions, with the idea that in an era of instant background checks, some GCA requirements cannot stand up to strict scrutiny.
Pursuant to the Brady Act, before an FFL may sell or deliver a firearm to a non-FFL, he must complete a criminal background check through the National Instant Criminal Background Check System (“NICS”) to ensure the purchaser is legally entitled to obtain and possess the firearm. 18 U.S.C. § 922(t). States may also create a Point of Contact (“POC”), who acts as a liaison to NICS, to run the background check and receive notice of anticipated firearms purchases by its citizens. See 28 C.F.R. §§ 25.1-.2, 25.6(d). In other words, to complete a background check, the FFL contacts either (1) the state POC, if there is one; or (2) NICS, if the state has not designated a POC. See id. Current law therefore ensures potential purchasers can legally acquire and possess a firearm under state and federal law, and those states that desire to receive notice of firearms purchased by its citizens simply establish a POC.
Obviously, none of this infrastructure existed in 1968. Yet, in this case, it appears Defendants rely on statistics from the 1968 Senate Report to support the continued need for an in-state FFL in every out-of-state handgun transaction.
That could be used to build further cases.
The current law relating to rifles and shotguns provides an example of a narrowly tailored law, especially when it is taken together with instant electronic background checks, face-to-face meeting requirements, state POCs, and published compilations of state and local firearms laws.12 In short, the current statutory scheme presents less restrictive alternatives to achieve the goals that Congress identified in 1968, rendering the federal interstate handgun transfer ban not narrowly tailored.
The court then further argues that even if they applied intermediate scrutiny, the government’s case still fails, and that happens because this court applies intermediate scrutiny correctly, rather than using the concept to institute a standard that is barely, if any more demanding than rational basis scrutiny.
Based on the foregoing, it is ORDERED that Defendants’ Motion to Dismiss for lack of standing (ECF No. 15) is DENIED. It is FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 21) is GRANTED, and Defendants’ Motion for Summary Judgment (ECF No. 15) is DENIED.
Accordingly, the Court DECLARES that 18 U.S.C. § 922(a)(3), 18 U.S.C. § 922(b)(3), and 27 C.F.R. § 478.99(a) are UNCONSTITUTIONAL, and Defendants are ENJOINED from enforcing these provisions. The Court will issue its final judgment separately.
SO ORDERED on this 11th day of February, 2015.
I’m sure it will take a while for FFLs to get updated on this, but unless the government appeals the ruling, and the decision is stayed or reversed, the 11th of February will go down as the day we won Interstate sales of handguns through FFLs. This is a great win for us, and one which I would like to congratulate and thank Mr. Gura and his plaintiffs.
The Seventh Circuit heard oral arguments in an assault weapons case. From the questioning in this article presented by the article, it looks to me like Judge Easterbrook isn’t very fond of the common use test.
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
I think it’s important to consider what the court was trying to accomplish with that presumption, which is that commonly used firearms are deserving of protection. I don’t think too much more needs to be read into than that, which is what I think the attorney for the plaintiff was trying to stick to. The argument Easterbrook is asking, I think, can be left for another case.
But I agree with Easterbrook that the common use test, and “longstanding prohibition” doctrine is imperfect, and was largely an effect of trying to exclude machine guns from protection. I think the test should be whether the arm in question is in common use by police as well. One should not just look at commonness in the civilian population. Any gun control law that has a police exception to it should automatically be treated with strong suspicion by the courts, and any arm that is part of ordinary police equipment should be unequivocally protected for civilians as well. That would include pistols, shotguns, semi-automatic rifles, and the standard capacity magazines that go with them. It would also include body armor, chemical sprays, tasers, and batons. It might even include true assault rifles, as they become ever more common in police inventories. I think such an evaluation would create a far more equitable balance between the people and the state than a narrow understanding of the common use test.
The case of Tyler v. Hillsdale, from Michigan, filed in federal court challenging the prohibition on individuals with who have been involuntarily committed or adjudicated mentally defective, as applied to the plaintiffs circumstances. There’s a reason that Dave Hardy is calling this a major case, because I believe this could result in Congress having to restoring funding (denied since 1992) the relief from disabilities program, since the Circuit Court ruled that his rights could not hinge on whether or not a state has implemented its own relief from disabilities program as enacted through the NICS Improvement Amendment Act of 2007.
Note that this is an as applied challenge to the prohibition, not a facial challenge, meaning it’s still presumptively constitutional to prohibit individual with a mental health commitment or adjudication from obtaining firearms. Mr. Tyler, the plaintiff in this case, had a very brief mental health crisis after a messy divorce, and has been fine for years since. The Circuit Court ruled that a lifetime prohibition was a violation of his rights under the Second Amendment.
Violence Policy Center was originally the driving force behind the FOPA restoration of rights provision getting defunded by Congress back in 1992. Sugarmann managed to accomplish this by pointing out cases where felons had their rights restored, then went on to commit heinous crimes. He’s been trying a similar tactic with his “Concealed Carry Killers” campaign. So this ruling will undoubtedly make Josh Sugarmann a very sad panda.
h/t to Robb Allen for the icon.
No, they didn’t throw out Malloy’s new gun control law, but it’s still very good news. The Connecticut Suprem Court has ruled that Connecticut’s law making transport of firearms between residences is unconstitutional per the Second Amendment. The decision was 7-0, so not even close! They squashed a conviction for someone who was arrested, tried and found guilty on two counts of having weapons in a motor vehicle. He spent 15 months in prison. Now he’ll have his gun rights back.