Arms and the Law

A judge in the Southern District of New York has just struck down the New York permitting requirement of "good moral character."

"In sum, having considered Defendants' proffered historical materials, and applying the standard set in Bruen, the Court determines that the magnitude of discretion afforded to New York City licensing officials under subsections (a)(2) and (a)(9) of Section 10-303 of the New York City Administrative Code and the pre-December 16, 2022 versions of Sections 3-03 and 5-10 of Title 38 of the RCNY, empowering them to evaluate an applicant's "good moral character" and "good cause" in deciding whether to permit that applicant to exercise his or her Second Amendment rights, is not constitutionally permissible under the Second and Fourteenth Amendments."

And for the posting to which he responded.

Steve Halbrook has a nice one at the Volokh Conspiracy.

All but the government's reply have been filed, and can be seen here. I haven't read all, but two stand out of those I have read. The brief of the Bronx Defenders Union and the National Association of Criminal Defense Lawyers, here, documents how little due process is given by courts issuing restraining orders. David Kopel's brief, here, does a good job of explaining how the Court can get out of the trap planned by the government.

The government must have seen, early on, that Rahimi was the perfect vehicle to attack Bruen. The defendant is a repeat violent criminal, but had no felony record (yet) so the bar on those subject to a DV restraining order was the only provision affecting him. That bar is probably the hardest to reconcile with "text, history, and tradition." Hard cases make bad law, and the government picked about the hardest one for Bruen.

Opinion here. The court enters a PI against the Maryland "sensitive place" restrictions on private property, places that sell alcohol, and demonstrations.

They've recently released a book, "To Trust the People with Arms: The Supreme Court and the Second Amendment," and will be presenting on it at the Ohio Statehouse in Columbus(and remotely, on Zoom) on October 12, 4:30 PM Eastern Time. You can register here.

It's being sponsored by Capital University Law School, and should be good for two free hours of MCLE. I'll be signing up, every reason in the world to get Second Amendment CLE hours!

The FB says it happens but rarely, but John Lott shows it's more like a third to half the cases, and 63% in areas where lawful carrying is allowed.

9th Circuit case, here. Case dismissed as moot, but it's illustrative of abuse potential. California law forbids firearms possession by anyone subject to ANY form of restraining order (domestic or not). This couple had a crazy neighbor, who filed for a restraining order on the basis that the couple's security cam was invading her privacy. Some sloppy judge granted it, and so they wound up as prohibited possessors for years.

Right here.

Interesting -- one charge is possession by a prohibited person, a user of unlawful drugs, but the other two are of lying on the 4473. There has been some dispute over whether the drug user prohibited person category is unconstitutional under Bruen, but questions are now also posed (1) is it constitutional to punish false statement under Bruen and (2) would it make any difference if the false statement concerned a prohibited person status that was unconstitutional?

In Junior Sports Magazines v. Bonta, it today struck down a California ban on on advertising firearms in ways that might be attractive to minors.

Some contend that section 3 of the 14th Amendment, which bars former insurrectionists from public office, bars Donald Trump, and there is major legal debate on the issue.

Attorney Don Kilmer points out that §3 also allows Congress to remove that bar by a 2/3 vote, and in 1872 Congress did so as to all but a handful of offices, not including the presidency. 17 Stat. 142.

Story here.

A review of three books on the Second Amendment, in the Wall Street Journal. The reviewer is not impressed with them, nor am I.

Two imprisoned for smuggling guns to Mexico. They used a pedestrian crossing. Each had two AK-type rifles taped to their body. A little obvious.

Report here. It's been that way for 48 consecutive months.

When I first was getting involved with the gun rights issue (early 1970s), as I recall gun sales were about 3 million a year. Today it's over 12 million. The antis' time has passed.

In Garland v. Vanderstock, Firearms Policy Coalition, joined by Second Amendment Foundation, sued to challenge several aspects of ATF's "ghost gun" receiver regulations. The district court granted an injunction against enforcement of the entire regulation. The government appealed to the Fifth Circuit and asked it to stay the injunction. The Circuit stayed only part of it, ruling that the government hadn't shown it was likely to succeed on the rest.

The government has now appealed that ruling to the Supreme Court. It moves the Court to vacate the stay and, if necessary, treat the motion as a petition for certiorari before judgment (i.e., before the Fifth Circuit rule on the appeal).

Here. His business dealings come in at page 27, the judge starts getting involved at 45, the constitutionality of the gun charge is raised at 91, and at 92-93 the judge asks about a strange provision that says if Biden breaches the plea agreement he must be given the opportunity to cure the breach and a hearing before the judge before anything is done.

Ha! Apparently he wanted even more than he was getting, which was two very serious tax charges dropped to misdemeanors, and the gun charge given diversion and eventual dismissal. He also wanted immunity for charges of failure to register as an agent of a foreign government.

More thoughts, from a defense attorney.

"So, this was either astounding incompetence or corruption on DOJ's part. I think it is corruption. This looks like a wink and a nod deal (as @shipwreckedcrew has noted) where DOJ would have plausible deniability if the judge asked no questions and accepted the deal."

On the duality of the Second Amendment.

Story here. If anyone wonders why robbery rates there are high, take the case of one robber mentioned:

"MPD arrested 19-year-old Isaiah Matthews on Tuesday after police said he stole a victim's car keys at gunpoint on D Street SE.

But Matthews has a criminal record that includes prior misdemeanor assault and threats offenses for which he wasn't kept behind bars for long.

His threats offense earned him a 120-day sentence in January that was suspended as long as he could fulfill his one-year probation, according to court records. Matthews became delinquent soon after, and he wasn't ordered to serve out the remaining 90 days of his sentence until he was arrested in April.

Matthews was released from jail earlier this month before being rearrested Tuesday on robbery charges."