4th Circuit Appeals Decision for the 2^nd Amendment  by Tom Reynolds

The 4^th District US Circuit Court of Appeals, in Hirschfield and Marshall vs BATFE et al, ruled that 18 years old have 2^nd Amendment rights, including the right to buy a firearm.  The summary of the decision by Judge Richardson explains it well.  The emphasis (underlining) is added by SCOPE to emphasize important points.

“When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft over inclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.

The following is the background on the case, taken directly from the judgment.  It reflects a common story that we often use to justify private ownership of firearms. 

“Prospective handgun buyers sued the Bureau of Alcohol, Tobacco, Firearms and Explosives seeking an injunction and a declaratory judgment that federal statutes prohibiting Federal Firearm Licensed Dealers from selling handguns and handgun ammunition to 18-, 19-, and 20-year-olds (and the federal regulations implementing those statutes) violate the Second Amendment.

Nineteen-year-old Natalia Marshall had good reason to seek protection. She had been forced to obtain a protective order against her abusive ex-boyfriend who, since the issuance of the order, had been arrested for unlawful possession of a firearm and controlled substances. He was released on bail but never came to court, leading to the issuance of a capias for his arrest. Along with the threat from her ex-boyfriend, Marshall works as an equestrian trainer, often finding herself in remote rural areas where she interacts with unfamiliar people. Having grown up training with guns, she believes that a handgun’s ease of carrying, training, and use makes it the most effective tool for her protection from these and other risks. But because Marshall was 18 when she tried to buy a handgun, a federal law prevented her from buying from a licensed dealer who would perform a background check to verify that she was not a felon or other prohibited person. She preferred using a licensed dealer because they tend to have a wider supply, a good reputation, and a guarantee…She is now 19 and remains unable to buy a handgun from a federally licensed dealer for self-defense.”

The 4th Circuit Court hears appeals from the nine federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.  Its decision applies to all federal courts in its district.  It does not apply to the other eleven circuit courts in the United States but its decision may influence the decisions in those courts.  

The Feds remaining option is to appeal this to the Supreme Court.  Since they are on the taxpayer’s “dime”, the cost of an appeal is no object.  The Supreme Court has the option of reviewing it or not.

2022 REDISTRICTING  by Tom Reynolds

    Last week, the Independent Redistricting Commission (IRC) announced it would host eight public listening sessions across the state prior to redrawing state legislative and congressional district lines, a process which takes place every ten years to reflect population changes. The sessions are a result of a 2014 public referendum in which millions of New Yorkers voted in favor of a Constitutional Amendment assembling the IRC in the hopes of ensuring fair and honest guidelines for the upcoming 2022 redistricting effort.

     The listening sessions will only be held virtually.

    Each virtual meeting will begin at 2 p.m. and the schedule for the first round of hearings is as follows:

•  Tuesday, July 20 in Nassau and Suffolk counties;

•  Thursday, July 22 in Queens County;

•  Monday, July 26 in Bronx and New York counties;

•  Thursday, July 29 in Kings and Richmond counties;

•  Monday, August 2 in the Mid-Hudson Valley and Capital Region;

•  Thursday, August 5 in the North Country and Mohawk Valley;

•  Monday, August 9 in the Southern Tier and Central New York; and

•  Thursday, August 12 in the Finger Lakes and Western New York.

• Whether the new district lines would result in the prohibited denial or abridgment of racial or language minority voting rights;

• To the extent practicable, districts containing as nearly as may be an equal number of inhabitants;

• Districts must consist of contiguous territory and shall be as compact in form as practicable;

• Districts cannot be drawn to discourage competition, or for the purpose of favoring or disfavoring incumbents; and

• The maintenance of existing districts, pre-existing political subdivisions, including counties, cities, towns, and communities of interest.

    The first redistricting draft proposal will be made public on September 15; additional hearings will then be scheduled.

    More information about the regional redistricting meetings and how to participate virtually or submit testimony is available on the IRC’s website.

    The Independent Redistricting Commission was created through an amendment to the New York State Constitution which went into effect on January 1, 2015. This amendment created the Commission and set forth its composition and overall mission.  The amendment was approved by the voters of New York State in November 2014.

    The following is how it is supposed to work:

     Every decade beginning in 2020, a 10-member bipartisan commission shall be established, with eight members appointed by New York's four legislative leaders (two appointments per leader), and the remaining two members appointed jointly by the first eight members. The Commission is required to create a plan for the re-drawing of the State legislative and congressional districts, and must take into account various State and federal constitutional and statutory requirements, including:

Approval of a redistricting plan by the Commission shall require a vote in support by at least seven members, including at least one appointed by each of the legislative leaders.  If no plan is able to garner seven votes prior to the submission deadline, the Commission shall submit the plan that received the most votes to the Legislature, along with a record of the votes taken.

The Commission shall submit its redistricting plan to the Legislature on or before January 1, 2022, or as soon as practicable thereafter, but no later than January 15, 2022. Legislative approval of the redistricting plan shall require a vote of at least two-thirds of the members of both the Senate and the Assembly.

If the Legislature fails to approve the plan, or the Governor vetoes the plan and an override by the Legislature fails, the Commission shall be notified and within 15 days of the notification (but no later than February 28, 2022), a second plan shall be submitted to the Legislature for approval. Should the Legislature fail to approve a redistricting plan as submitted by the Commission, the Legislature shall provide amendments deemed necessary and, if approved, submit such legislation to the Governor for action on the measure.

Black and Firearms  by Tom Reynolds

The leftist gun grabbers love to brand their opponents with terms like racist and use it to destroy anyone and anything they can link to racism.  They, of course, give the Democrat Party a pass on this even though that party supported and protected outright racism and now it promotes the racism of low expectations; blacks can’t figure out how to get a picture ID, for instance.

What the gun grabbers don’t admit – or perhaps don’t know in their tunnel vision view of history – is that blacks needed guns to protect themselves from real racists.  Harriet Tubman carried a handgun on her Underground Railroad expeditions and a rifle at other times during the Civil War.  Ida B. Welles-Barnett said, “A Winchester rifle should have a place of honor in every black home”. Those two understood the need for a firearm for protection.

So, which party wants to disarm both blacks and whites so they can’t protect themselves?

The following is a link to a three minute video that all the gun grabbers should watch – but won’t.

Black conservative leaders discuss how the NRA was created to protect freed slaves

David Chipman Part 3  by Tom Reynolds

David Chipman has a history of working with high-profile gun control groups,.  He is the controversial nominee to head the Bureau of Alcohol Tobacco Firearms and Explosives (BATFE). Chipman also has a history of undiplomatic comments about guns, gun owners and how to enforce gun laws and is staunchly opposed by most Republicans.  His nomination did not get the approval of the Senate committee; there was an 11-11 tie which followed party lines.  Without committee approval, the nomination would be dead unless Senator Schumer moves to “discharge the nomination” which means to remove the committee from the process and take the nomination directly to the full Senate for Confirmation.

Schumer intends to do that.

There are two opportunities to stop the nomination by majority vote: defeat the vote to discharge the committee; defeat the nomination itself.  (Unfortunately, Vice President Harris has a tie breaking vote in a 50-50 tie.)  Although both NY Senators will vote wrong on this and approve both motions, there is some hope of defeating this awful nomination.

The reliably unreliable Republican Senator Susan Collins of Maine, who has voted for many of the president's nominees, said she will vote against the "unusually divisive" Chipman. She said this is because he is "an outspoken critic of the firearms industry and has made statements that demean law-abiding gun owners."   (This helps keep intact the 50 Republican votes needed.)

Sen. Lisa Murkowski, R-Alaska, another Republican swing vote, has not announced a position on Chipman's nomination. (It’s hard to believe that one state could produce such totally opposite female Republican politicians as Murkowski and Sarah Palin.)  Murkowski’s yes vote on Chipman, or a yes vote from any other Republican, would be a big boost to Chipman's chances. If Murkowski votes to not confirm him, at least one Democrat would need to break the Democrat lock step in order to block Chipman's confirmation.  (Let’s hope Murkowski feels the heat from Alaskan gun owners.)

Several Democratic Senators in pro-gun states may (or may not) vote against his nomination.  Montana Senator John Tester “will continue to review David Chipman’s record and testimony to ensure he would support our brave law enforcement officers and respect Montanans’ Second Amendment rights."  (Tester’s commitment to law enforcement is a bit questionable since he also believes that defunding the police is “bad messaging”.  Not wrong, just bad messaging.)  Montana Republican Attorney General Austin Knudsen led a letter signed by 21 Republican state attorneys general urging a “no” vote on Chipman and reminded Tester that Montana expects him to protect gun rights.

Several other moderate Democrats from red or purple states haven't taken public stances on the nomination. This group includes Sens. Joe Manchin, D-W.Va., Kyrsten Sinema, D-Ariz., Maggie Hassan, D-N.H., and Angus King, I-Maine.  Recent polling conducted by Cygnal about Chipman’s nomination shows he is strongly opposed by a majority of likely voters in Arizona, Maine, West Virginia and Montana.

Manchin was asked about Chipman's nomination last month and acknowledged that "there's a lot of controversy," according to Politico. "I really am undecided," he said.

Democratic senators have managed to confirm multiple individuals who Republicans unanimously opposed. The only Biden nominee who saw a hearing and then failed to get confirmed was Neera Tanden, the former nominee to run the Office of Management and Budget.  Manchin announced his opposition to Tanden after her confirmation hearing and before her committee vote, largely citing her caustic Twitter history that included broadsides against a number of senators. 

Gun Owners of Maine’s Legislative Scorecard on gun issues rated Angus King a D saying, “As a US Senator, Angus King has voted to ban large capacity magazines and voted against concealed carry reciprocity.  He has endorsed a package of gun control measures by gun control champion Senator Chuck Schumer, including universal background checks”.  (He doesn’t seem like a likely prospect to defect from the Democrat Party Line.)

Arizona’s other Democrat Senator Mark Kelly has a glaring conflict of interest. Kelly is the co-founder of gun control organization Giffords and the Giffords Law Center, which still employs Chipman as a senior policy adviser. It would seem that Kelly has an obligation to recuse himself and not vote, but that would likely sink Chipman’s nomination.  (In D.C., they don’t like ethics interfering with politics.)

Chipman’s approval to head BATFE would be a major blow to the 2^nd Amendment and a major arrow in Joe Biden’s quiver of anti-2A arrows.

FBI Statistics  by Tom Reynolds 2019 is the most recent year with complete data on deaths by firearms from both the US Department of Justice and the US Center for Disease Control.  (Can you imagine making personal decisions, today, based on two years old information?  Welcome to the government!)  But it is interesting that the numbers have been fairly consistent over the past few years. Here are the numbers for 2019.

The left-wing media and Democrat politicians will condemn guns and say there are 40,000 gun deaths every year.  But the devil is in the details.  Less than 4,000 homicides are related to incidents where there was neither suicides nor gang involvement nor police involvement.  Those 4,000 homicides are 4 tenths of 1% of all gun owners.  The biggest impact on gun related homicides would come if politicians focused on gang violence instead of lawful gun owners. The above statistics give you factual numbers to rebut the wild anti-gun claims of the left.  Of course, the left only believes in emotions and not facts.  The left wants more gun control laws which will only stop legal gun owners from possessing firearms.  You’ve heard it many times before, “criminals don’t obey laws”.  Look at the numbers from another aspect, the radical left wants to force all gun owners to buy liability insurance; the worst being Sheila Jackson Lee’s HR127 which would force all gun owners to pay an $800 yearly premium.  But, Liability Insurance does not cover suicides or unlawful acts; this would eliminate the 24,380 suicides and the 14,205 other homicides (unlawful acts) from eligibility for liability claims, even if they had bought the insurance - and it’s doubtful if gang members have legal weapons and insurance.  Police generally are covered by their government body and perhaps by their union, so they don’t need it.  That leaves only the 344 civilian justified uses and the 438 accidents eligible for insurance coverage.  It’s estimated that there are 100 million gun owners in the USA.  Only 1 in 130,000 gun owners would be able to use the insurance related to a gun death.  (For comparison purposes, 1 in 40 car owners use their insurance.) The left gets a “twofer”: price guns out of the reach of most gun owners and raise taxes.  To be completely fair, the liability insurance would cover acts where a gun was involved but no one was killed.  It’s estimated that there are 500,000 to 2 million of these incidents every year where a gun owner uses a firearm in self-defense. (Doesn’t necessarily shoots.)  100 million gun owners paying $800 each is $80 billion in taxes.  Self-defense be damned, what a pot of gold for trial lawyers; criminals can sue gun owners for using their guns in self-defense. Did I mention, trial lawyers are amongst the biggest contributors to the Democrat Party?  Connect the dots and follow the money.

Random thoughts and Hypocrites  by Tom Reynolds

President Biden, when rolling out a set of executive orders on gun control, said that "no amendment is absolute.”  (No amendment?  Absolutely none?)  If Joe were right, things could potentially get embarrassing.

• Amendment 13 says, “Neither slavery nor involuntary servitude, shall exist within the United States”. 
• Amendment 15 says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”      
• Amendment 19 says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. 
• Amendment 26 says, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."
• Amendment 14 says, “No person shall be a Senator or Representative in Congress…or hold any office, civil or military, under the United States…having previously taken an oath, as a member of Congress, or as an officer of the United States…to support the Constitution of the United States, shall have…given aid or comfort to the enemies thereof.  (Apparently, John Kerry slides in under the heading of the 14^th not being absolute.)

Pushing the argument that the 2^nd Amendment only protects weapons that were privately held when the Constitution was approved, Joe Biden said that a private individual couldn’t own a cannon at the time of the American Revolution. But, in the 1740s, there are records of Benjamin Franklin helping organize artillery companies while stressing that they were made up completely of volunteers and armed at their own expense.  During the course of the Revolution, approximately 1,700 letters of Marque were issued to privateers to fight the British. The privateers had almost 15,000 cannons – all privately owned. (Maybe that’s why they were called privateers?)

Remember when, in the past, today’s journalists were referred to as reporters?  It’s an accurate change to now call them journalists.  Reporters are supposed to report facts while those who journal are recording their thoughts and feelings. 

The “Green” movement in the Democrat Party wants to fight “Climate Change” by raising taxes.  The Democrats’ Kamala Harris and AOC blame the immigration crisis on Climate Change.  Following their thinking, (thinking?) isn’t it then logical that raising taxes will also solve the immigration crises?  It’s as logical as believing that raising taxes will change the weather. 

The January 6^th demonstration in Washington and subsequent events at the Capitol have been called an “Insurrection”.  But, no one who was arrested has been charged with insurrection or treason.  According to the left-wingers, guns can commit crimes without human intervention so they also believe there can be an insurrection when no one “insurrects”.

Joe Biden re-introduced his extreme gun control agenda by advocating for a ban on modern sporting rifles and reminding lawful gun owners that the federal government has nuclear weapons. Biden said. "If you think you need to have weapons to take on the government, you need F-15s and maybe some nuclear weapons”.  Biden has called the January 6th storming of the Capitol the “worst attack on our democracy since the Civil War.” No one who participated in that “attack on our democracy” has been charged with weapons possession.  (Mighty poor planning on the insurrectionists’ part.)

Article 1 Section 9 of the Constitution says, “No Tax or Duty shall be laid on Articles exported from any state”.  Article 1 Section 10 of the US Constitution says, “No State shall…lay any Imposts or Duties on Imports or Exports …”  Some states from which people are fleeing are trying to pass laws to tax / punish people leaving their state.   California, for example, wants to state tax people for 10 years after they “export themselves” from the state.  California’s example must be enticing to NY State which is driving gun manufacturers out but would love to still tax them. 

Remember when Hollywood actresses said they would only do nudity if it was essential to the script? In a famous scene from Gone With The Wind, Rhett picks up Scarlett and carries her up the stairs two at a time.  Does anyone not know what happened when they got to the top of the stairs?  In today’s Hollywood, they wouldn’t turn on the camera until they reached the top of the stairs.

Hollywood Democrats decry the “Hollywood Blacklist” of the 1940’s and 50’s, which kept suspected – and real - communists from working in Hollywood (the propaganda capital of the world).  Today, being a communist would be a positive on their resume’ and patriotic Americans are likely to be blacklisted.  But no one in Hollywood sees any hypocrisy in this. 

Black Lives Matter co-founder – and avowed socialist - Patrisse Khan-Cullors has been on a multi-million dollar real estate buying spree.  Should anyone be surprised?  Capitalism has three basic classes: rich, middle class and poor with middle class being the largest.  Socialism has two basic classes: rich and poor with poor being the largest, by far, and rich being restricted to only the politically connected.  Given that Democrat politicians have been worshipping at the BLM altar, Khan-Cullors definitely fits into the latter.

Critical race Theory wants to define America as racist.  We’ve had a black President and a semi-black Vice President.  If you follow sports (or the list of black millionaires), the names Russell Wilson, Lebron James, Steph Curry, Kevin Durant and, of course, Tiger Woods will be familiar for having annual earnings in eight figures.  Colin Kaepernick has a $20 million Nike endorsement and he doesn’t even play, anymore.  Black actors Tyler Perry, Bill Cosby, Will Smith and Samuel L. Jackson all are reported to be worth over $200 million.  If Americans are racists, we suck at it.

Constitutional Amendment 16 says, “The Congress shall have power to lay and collect taxes on incomes…”  It was passed in 1913.  Remember all those 100 year anniversary celebrations in 2013?  Yeah, neither do I.

Chipman and BATFE (continued)  by tom Reynolds

Yesterday, SCOPE wrote about David Chipman’s nomination to head the BATFE and a conflict of interest for Senator Mark Kelly of Arizona.  Bearing Arms just wrote about another conflict of interest, this one for Chipman, himself:

“Many scandals and conflicts of interest around Biden’s pick (David Chipman) to lead the ATF are circling. His current and past ties to gun control groups, his connection to the Waco massacre while with the ATF, him losing his gun while an ATF agent, etc… etc… etc… All valid concerns, but we have something much more concrete that can’t be denied in any way, shape or form. It would also be a massive conflict of interest for him if he were to be nominated to lead the ATF”.

“What are we talking about”?

“His wife.”

“A few days ago, we published an article on our website that details some information we found regarding David Chipman’s wife, Tara. We found that she donated over $21,000 to federal democrat candidates in the 2020 election, is vocally hostile to the GOP, and shockingly (sarcasm), she is a proponent of gun control. So, why is this a big deal and what does it have to do with ATF director nominee David? Well, Tara, his wife, currently works at ATF HQ and is the head of the Secretariat Division for the entire ATF! In fact, she is listed in the DOJ Correspondence Management Handbook as the main contact for all Department of Justice related inquires that involve the ATF. This information was obtained via FOIA in late 2019. We also published an article on this find and added a little bit more to it (including how she thinks Ashli Babbitt was a terrorist and anyone that is against her death is a terrorist).”

“So, not only would David be her boss if he’s confirmed, we would have a husband and wife duo (the head of the ATF and the “gatekeeper“ of the ATF) running the show for a lot of things for the bureau. Tara also had been very supportive of her husband‘s efforts while employed as a lobbyist for Giffords. In fact, late last year, she was helping him fundraise for the organization.”

The Swamp keeps feeding at the government trough – where taxpayer’s dollars go to die.

Of course, these archaic conflict of interest rules, like the US Constitution, don’t apply to those on the left opposed to the 2^nd Amendment.

Alternatively, she could resign and take up painting as a late in life change of careers (like Hunter Biden) and sell those paintings to Michael Bloomberg or other anti 2A billionaires that try to influence BATFE.  

Let your Senators know that you know what’s going on.  This is getting so outrageous that even Schumer and Gillibrand may not be able to ignore it.

Email Schumer

Email Gillibrand

Chipman and BATFE  by Tom Reynolds

David Chipman is the worst possible nominee to head the Bureau of Alcohol Tobacco Firearms and Explosives (BATFE); he is firmly in the corner of gun grabbers and it would be impossible for him to even-handedly administer BATFE.  Apparently, there has been enough political opposition to him that the Democrats are regrouping. 

The best and simplest description of Chipman’s place in the Biden administration was written in the National Review by David Harsanyi, who observed, “We now have an energy secretary who is against affordable energy, a transportation secretary who is against efficient travel, and perhaps soon an ATF director who wants to gut Second Amendment protections.”   

The following is from Ammoland and spells out the status of his nomination:

The Judiciary Committee has delayed voting on the nomination of retired federal agent-turned-gun control advocate David Chipman one week, until Thursday, June 24, and during that time, grassroots Second Amendment activists are expected to be flooding Capitol Hill with messages of opposition.

“Between now and next Thursday,” suggested Jason Ouimet, executive director of the National Rifle Association's Institute for Legislative Action, “(gun owners) ought to be contacting their Senators. They don’t want a partisan person like David Chipman running ATF.”

Ouimet spoke…expressing alarm that a nominee with Chipman’s background would be considered for the job of running the government’s Bureau of Alcohol, Tobacco, Firearms and Explosives. NRA has opposed the Chipman nomination from the beginning, stating, “Chipman has a long history of gun control advocacy that disqualifies him from leading the agency charged with enforcing federal gun laws.”

“The person who runs ATF ought to be somebody who can put politics aside, work with industry, gun owners and law enforcement,” Ouimet said.  Chipman, however, has worked for the gun prohibition lobby in the years since retiring from the ATF, which is responsible for enforcing the nation’s federal gun control laws.

Quimet expects a solid party-line vote in the Judiciary Committee, which is evenly divided with 11 members from each side of the aisle. It is when, or if, the nomination gets to the full Senate where each vote will hang in the balance, and a tie would be decided by Democrat Kamala Harris, in her role as president of the Senate.

And this, also from Ammoland, which gives a possible reason why the Democrats need to regroup.  Without Kelly’s vote, the Democrats only have 49 for confirmation.

Yesterday, the Arizona state House of Representatives issued a proclamation opposing the nomination of David Chipman to be the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives and asking Senator Mark Kelly (of Arizona) to recuse himself from a confirmation vote…Senator Kelly is co-founder of the national anti-gun group that currently employs David Chipman. As such, Chipman cannot be trusted to uphold the constitutional rights of law-abiding Americans, and Senator Kelly voting on his confirmation is a conflict of interest.

Obviously, our NY Senators are firmly in the gun grabbers camp, but it doesn’t hurt to show them that they are going too far.  (Neither of them is on the Judiciary Committee but they will have a vote if it comes to the Senate floor.  And, obviously, Schumer has influence.)

Email Schumer

Email Gillibrand

And if you know someone in another state, ask them to contact their Senator.

2^nd Amendment Cases, From Coast To Coast  by Tom Reynolds

Several 2^nd Amendment cases are in the news lately and, strangely, some are positive and come from two of the most anti-gun states, California and New York

U.S. District Court Judge Roger Benitez struck down California’s 30-year-old ban on Modern Sporting Rifles (MSRs) in his ruling on Miller v. Becerra (also known as Miller v. Bonta).  Judge Benitez compared California’s litigation stance to similar  views professed by Oakland’s police chief - that crime victims shouldn’t arm themselves, but be willing victims who can later testify against their attackers.  Benitez replied, “Of course, a dead victim is a lousy witness.”

Benitez cited the Supreme Court’s unanimous Caetano v. Massachusetts ruling which overturned a ban on stun guns.  In it, SCOTUS basically said: if 200,000 stun guns are enough to meet the standard of being in “common use”, then the millions of modern multi-purpose semiautomatic rifles are clearly worthy of “common use” protection; Caetano had also ruled that advancing technology does not negate 2nd Amendment protection; it rejected  as “bordering on the frivolous” the argument that only those arms in existence in the 18th century are protected by the Second Amendment.

Judge Benitez scrutinized the evidence the state offered in support of California’s “assault weapon” ban, found it inadequate, and declared California’s laws banning common “assault weapons” (like the AR-15) unconstitutional. Benitez wrote that California’s ban on such firearms “has had no effect” on shootings in the state” and that “California’s experiment is a failure.”

Judge Benitez’s ruling was made in this June and includes an automatic 30-day stay of his order. This gives the state time to appeal to the Ninth Circuit Court of Appeals, which the California Attorney General (Bonta) has already promised to do. 

In another case, Duncan v Becerra, a three-judge panel of the Ninth Circuit struck down three California state laws on Large Capacity Magazines (LCM’s):

1. a bill passed by the Legislature making it illegal to own magazines that hold 10 or more bullets;

2. a voter-passed ballot measure that requires people to get rid of such LCM’s that they already own or face being charged with a misdemeanor or infraction;

3. a 2000 law which made it illegal to sell or buy LCM’s.

The court held that: firearm magazines are protected arms under the Second Amendment; that LCMs are commonly owned and typically used for lawful purposes and are not “unusual arms” that would fall outside the scope of the Second Amendment; that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness; that there was no persuasive historical evidence in the record showing that LCM  possession  fell  outside the realm of Second Amendment protection.

The panel further held that “Strict Scrutiny” was the appropriate standard to apply and, under it: the law struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home; and that the near-categorical ban of LCMs substantially burdened core Second Amendment rights.

The laws were originally struck down by U.S. District Judge Roger Benitez (yep, him again) who said that the law “turns millions of responsible, law-abiding people trying to protect themselves into criminals.”  His decision was appealed to the three-judge panel which upheld his decision.  California is now appealing the three-judge decision to the entire Ninth Circuit (en banc).

In Rupp v. Becerra, US District Court Judge Josephine Stanton upheld the California Assault Weapons Control Act that makes it a crime to manufacture, sell, import or transfer hundreds of popular semi-automatic firearms with a pistol grip or adjustable telescoping stock.  The law also includes a ban on transfers or gifts between parents, grandparents, and children. 

California gun owners who legally owned such a rifle before December 31, 2016 had to register by July 2018; failure to register is a crime.  Rupp said that the registration process violated the plaintiffs’ Second Amendment rights, as well as their due process rights, specifically, as it related to the act of registering an “assault weapon.”  One of the requirements before registering is that applicants must state (under penalty of perjury) the date of acquisition of their firearm in their application for registration of their rifle.  Many individuals legally own their weapons, but failed to retain their original paperwork, and thus, could not complete the form without guessing as to the date or location of purchase.

In her decision, Judge Stanton went into great detail to explain that the plaintiffs (Rupp) were not in a position to sue for relief since, essentially, none of them had actually committed perjury yet by attempted to register.  The judge also wrote, “Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right."  She also suggested that if semiautomatic rifles like the AR-15 were outlawed, California gun owners "would be left with myriad options for self-defense”.

The case is appealed to a three-judge panel of the Ninth Circuit Court and has been fully briefed

Here in New York the Supreme Court of the United States has agreed to hear the case of NYS Rifle and Pistol Association v Corlett.  The case will be heard this Fall.  The key question is, “Can the government prohibit law abiding, ordinary citizens from carrying handguns outside of their home”.  Anti-2A lawyers have been trying to argue that the Heller and McDonald decisions only covered guns in the home and not outside the home.

The Second Circuit ruled that the New York law is constitutional. The current composition of the Supreme Court makes a pro-Second Amendment decision look very possible.

Miller v Becerra / Bonta,  Duncan v Becerra and Rupp v Becerra) are all likely to be delayed by the Ninth Circuit pending the Supreme Court’s decision on NYSRPA v Corlett.  So, the Corlett decision could topple a number of dominos.

The Becerra cited in these cases is former California Attorney General Xavier Becerra who is currently serving as Secretary of Health and Human Services in the Biden administration and whose nomination was criticized for his lack of health care experience.  Judge Roger Benitez, who issued pro 2A rulings, was appointed by President George W. Bush.   Judge Josephine Stanton, who issued the anti-2A ruling was appointed by President Barack Obama.  Just sayin’.

Plan B (continued)  by Tom Reynolds

Monday, SCOPE wrote about “Plan B”, the anti-gun left’s strategy to work around the 2^nd Amendment with the goal of getting rid of private gun ownership.  Specifically, to make the cost of owning a firearm unaffordable for most Americans.  But Plan B doesn’t just stop with making firearms unaffordable.

Joe Biden is pushing - and Congressman Adam Schiff has introduced - a bill to repeal the “Protection of Lawful Commerce in Arms Act” (PLCAA). The PLCAA,  “Prohibits a qualified civil liability action from being brought in any state or federal court against a manufacturer or seller of a firearm, ammunition, or a component of a firearm that has been shipped or transported in interstate or foreign commerce, or against a trade association of such manufacturers or sellers, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief resulting from the criminal or unlawful misuse of a firearm.”  (Under PLCAA, you can’t sue a gun manufacturer just because the gun was used in a crime, any more than you can sue a car manufacturer because a car was used in a crime.)

The left is deceptive in their justification for repealing PLCAA. Assemblywoman Pat Fahy, a Democrat from Albany, echoed a common Democrat talking point, “Right now, only one industry in the United States enjoys blanket immunity from civil liability under federal law for negligence in the use of their products; the gun industry." Read her statement closely and it is flatly untrue.  This law is not “blanket immunity” against all civil suits, it’s immunity against a very narrow range of civil suits; for instance, gun manufacturers can be sued if they produce a faulty product, just as any other manufacturer could be sued under the same circumstances.  PLCAA was passed because the anti-gun left was trying to harass gun manufacturers out of business with nuisance law suits when a gun was used in a crime - and anti-2A judges were allowing it to happen.  The cost of defending against hundreds of lawsuits would be prohibitively expensive and drive companies out of business.

There are other back door attempts to circumvent the 2^nd Amendment:

HR1004 would require liability insurance to purchase a firearm.  We discussed the financial impact of this on Monday in HR127.  It should be noted that, thanks to the efforts of Andrew Cuomo, it is very difficult – if not impossible for most people - to get gun related liability insurance in New York State.  This law would require insurance that the ordinary gun owner will not be able to purchase in NY State. (That is called “Catch 22”.)  Not to mention that it would require having insurance in order to exercise a constitutional right, which sounds … unconstitutional.

HR0647 would prohibit “A Federal firearms licensee from transferring a long gun to a person who the licensee knows or has reasonable cause to believe does not reside in…the State in which the licensee’s place of business is located”.  No interstate purchases of long guns.  All Cuomo and the NY City Democrats have to do is increase regulations and close down NY gun retailers to the point where there are only a few in NY State, making it extremely difficult to get a long gun. 

We also have the issue of the ammunition shortage and its rising prices.  It’s difficult to buy enough ammo to maintain proficiency and, as far as self-defense goes, a gun without ammunition is only a club.  What is causing the ammo shortage?  It’s reasonable that the initial causes of the shortage were factory shutdowns because of the China Virus and the unexpected rise in gun purchases (with related ammo purchases for the gun.) Certainly, many gun owners are buying extra ammunition - when they can get it.  Manufacturers claim there is no increase in government ammo purchases causing the shortage.  However, it is also being reported that the Pentagon is destroying or using up $1.2 billion in “excess” ammo.  (Why not sell it?)  Not to promote conspiracy theories but, whatever the cause, the Democrats’ Plan B has gotten an unexpected boost from the ammo shortage and we need to keep watch that they do not further exploit it.

HR0405 would prohibit lead ammunition being used on federal lands.  If there is already a shortage of lead ammo, think about how hard it would be to buy non lead ammo.

A7771 was introduced by Democrat Assemblywoman Chantel Jackson (a Sheila Jackson Lee wannabe).  Jackson proposes: requiring a person to apply for a hunting license prior to the purchase of a shotgun or rifle; requiring taking a five hour gun safety course and exam; passing a shooting range test with 90% accuracy; providing notarized proof of a passed drug test and mental health evaluation; providing proof of purchase of firearm and ammunition safe storage depositories; and passing a criminal background check.

My dad had a saying, “Ten minutes after a law is passed there are 10,000 lawyers looking for a way around it”.  Certainly, that is the case following the Supreme Court decisions of “Heller” and “McDonald”.  The above are a few examples of those efforts.  The left’s “Holy Grail” is no private gun ownership and they will not let something like the Constitution or the Supreme Court stand in their way.