Arms and the Law

At PJ Media, Kevin Downey has a post on the issue. 33 in 22 days, that made the press, and at 3+ million per year, a few hundred thousand that did not.

"EVERYTOWN STATEMENT ON TEMPORARY RESTRAINING ORDER AGAINST THE PROTECT ILLINOIS COMMUNITIES ACT

SPRINGFIELD, Ill. - Everytown for Gun Safety and the Illinois chapter of Moms Demand Action, a part of Everytown for Gun Safety's grassroots network, released the following statement regarding the temporary restraining order issued by a state court judge against the Protect Illinois Communities Act, a critical gun violence prevention legislative package signed into law by Governor J.B. Pritzker earlier this month.

"We strongly disagree with the court's decision which focused on meritless claims of procedural defects in the passage of the law and included a gross misreading and misapplication of the recent U.S. Supreme Court case interpreting the Second Amendment," said John Feinblatt, president of Everytown for Gun Safety."

Opinion here. The local officials challenging the law argued that they had some mysterious "immunity" against state law because they were legislators. It doesn't work like that...

Story here. The charges will involve involuntary (negligent rather than intentional) manslaughter. I wonder that they didn't charge second degree murder, a killing that can include gross negligence: "if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another."

Story here. The four cases will be argued on March 20. As the article notes, the Alito-Thomas concurrences in the earlier motion to stay may be functioning as a shot off the Second Circuit's bow. "Treat these matters with care, we're willing, even eager, to grant cert. on them."

Online here. As a guy who did admin law for ten years, I like it! It raises a novel point. It argues that, in the rule making process, notice and comment and final rule, ATF should be required to consider the Bruen standards. In most rule makings, nobody worries about constitutionality, but rule makings about firearms are arguably different. I know that when, eons ago, my friends at Interior promulgated a rule about protests on the White House sidewalk, the entire rule making centered on the First Amendment.

Unsigned ruling here. Justices Alito and Thomas add their opinion:

"I understand the Court's denial today to reflect respect for the Second Circuit's procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today's order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal."

Nation Devastated As Congress Resumes Functioning. Well, we had a few days of peace.

Houston police ask customer who shot robber to come forward. I'm sure the victims who saw him will be unable to describe him well, so why volunteer?

Its response in the Supreme Court, in that case where the Court may be looking to rebuke both New York and the Second Circuit. It'd be a good response if this were the ordinary appeal, which it is not.

Mark Smith makes an interesting point, worth any 2A litigator's memorizing.

One of the tests mentioned in Heller, which took it from Miller, is whether the firearm at issue is one that is in "common use." (I disagree with this test, BTW. Miller just mentioned in passing that the early militia was expected to turn out with the firearms in common use at the time. That's a statement of historical fact, not a legal test. As a test, it turns circular -- if an arm is tightly restricted from its early history, it'll never be in common use).

Smith points out that in ATF's rule making on receivers, the agency states that the AR-15 is one of the most popular guns in America. Yes, that may be very useful in court.

His review of the decision striking down the NY ban on guns in churches, even if the church in question is good with that.

Has New York officially pissed off the Supreme Court?

Short version: right after Bruen, NY passed a law imposing even more onerous restrictions on carry. GOA challenged it, and the trial court ruled in their favor and issued a temporary restraining order against enforcing many portions of the statute.

NY appealed to the 2nd Circuit, which set aside the TRO (this is quite unusual; appellate courts don't like to get involved with TROs, they want to hear appeals from final judgements rather than preliminary orders).

GOA appealed to the US Supreme Court (which is even less likely than a Circuit to get involved in a TRO), and the Supreme Court ordered NY to show cause by Januryar 3 why the Supremes shouldn't overrule the 2nd Circuit.

I agree with his view: this can only mean the Supreme Court is seriously POed at NY, and willing to jump in, on something it would almost certainly turn down, to tell NY and the 2nd Circuit that the Justices have their eyes on them and are willing to slap them down NOW, not at the end of a 2 year appellate process.

This is one of Stephen Stamboulieh's cases.... he's already made his mark as a 2A litigator, and has a lot of energy!

Alabama and Georgia will allow permit-less concealed carry in 2023. I'd bet it'll have the same effect as going permit-less did here in Arizona, which is not much. Anyone who wanted to carry concealed was already doing so (with or without a permit). Those who had permits kept on renewing them, for reciprocity or for ease of purchase at gun shows.

Right here. Read it all, this is great material, probably best I've seen on the topic.

Today is it, and it brought a memory to mind. I wasn't in DC at the bicentennial of the Constitution, but I knew it was a big affair. A committee headed by the Chief Justice to organize it, celebrations, a huge parade with entries from all over the country, etc.

I was in DC for the bicentennial of the Bill of Rights, in 1991. I had expected something big... but it was nothing.

Then it occurred to me--DC is a company town, and the company is the federal government. If it wasn't for that, DC would be a small backwater port town, far out-shadowed by the better port at Baltimore. The Constitution created and empowered the federal government. The Bill of Rights restrained it. It is understandable that for the government, the Constitution is greatly to be celebrated, while the Bill of Rights is a minor thing indeed.

The Reload reports on the results of a Freedom of Information Act request. CDC originally had released a list of studies claiming that the annual number of defensive gun uses was anywhere from 60,000 to 2.5 million, the latter being the finding of Gary Kleck, after a very detailed and well-designed survey. But antigun organizations asked CDC to delete references to the Kleck study ("[T]hat 2.5 Million number needs to be killed, buried, dug up, killed again and buried again.") and the CDC complied.

Here's another tidbit: the CDC actually asked about defensive gun use in several surveys, but after the data was collected, confirming Klick's estimate of 2.5 million, decided to say nothing about it.

"repeatedly debunked?" If that refers to Hemmenway's article criticizing it, Kleck in reply took him apart. It was as complete a demolition of an academic article as I have ever seen.

Opinion here. It doesn't get down to the issue until p. 25. The judge sounds skeptical with regards Bruen.

His op-ed here. Since the author is a law prof, with experience in security, his opinion may carry some special weight.

New York's expanded "sensitive places" carrying prohibition: SAF and FPC blocked that with a preliminary injunction. The state has moved for a stay pending appeal, and they have opposed that.

SAF and FPC also challenged California's legislation making anyone challenging a gun law liable for attorney's fees if the government wins (while not making the government subject to fees if it loses), and the California AG declined to defend the law.

Gun Owners of America has brought so many challenges, and is winning in so many, that I'll just give a link here to their list. I should give specific mention to their challenge to Oregon's recent and repressive laws, on which they won a temporary restraining order, the state took an emergency appeal to the state Supreme Court, and the state failed.

All these are preliminary rulings, but the direction of the tide is clear.