Arms and the Law

He's arguing the unconstitutionality, under Bruen, of the federal ban on possession of guns by illicit drug users.

SAF, GOA, and California Rifle and Pistol are bringing suit challenging California's carry permit procedures, in terms of delay and cost, and unavailability to non-residents. Sounds like they did a very good job of picking plaintiffs!

A very good discussion over at the Volokh Conspiracy.

Another win for FPC!

Josh Blackman has them, over at the Volokh Conspiracy. The government wisely chose the Rahimi case. It involves a violent goon, and the prohibited person category hardest to justify under text, history, and tradition. They want to challenge Bruen, or at least cut back on its teachings, and Rahimi was the perfect case for that.

Josh points out there is another case pending on cert (vote likely to be taken later this month), which is the converse. In the Range case, the prohibited person was such due to a conviction for welfare fraud, years ago. The Third Circuit upheld a Second Amendment as-applied challenge to the statute. If the Supreme Court grants cert, there could be an interesting interplay between the two cases.

Today the US Supreme Court granted certiorari in two gun-related cases: Garland v. Cargill, which challenges the ATF "bump stock" regulation, and NRA v. Vullo, which seeks to hold NY liable for taking regulatory actions in retaliation for NRA's political stances.

Cargill will be interesting. For quite some time the courts have given "Chevron deference" to an agency's interpretation of ambiguous statutes. Some members of the Court have challenged that, as abdication of the Court's responsibilities. Cargill is a fine vehicle for challenging that, since ATF reversed its position on bump-stocks (I seem to recall more than once). How does a court defer to agency positions that are completely opposed to each other? Did the meaning of Congress's enactment somehow change, without Congress touching it?

SAF and GOA, and others, get a 9th Circuit ruling that strikes down California's ban on gun advertising that might appeal to minors. Since it was commercial speech, the majority applied intermediate scrutiny; the concurrence argues that since it involved viewpoint discrimination, strict scrutiny should apply.

SAF, Crossroads of the West, and others get a preliminary injunction against a California law forbidding gun shows at government-owned facilities. The judge finds that the law violates both the First and the Second Amendments, as incorporated.

The Dep't of Commerce has stopped issuing most firearm export permits for 90 days, with no explanation given. In response, Global Defense has started this petition.

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.