frontlines

May 6, 2020 by Karen Lugo
Once freedoms were surrendered, [Chief Justice William] Rehnquist warned, they would be even easier to take away when a future crisis or greater good came calling.

• The very orders that citizens across this land were protesting have been delivered wrapped in lack of transparency: forbidding only some assemblies; preferring big box stores; shutting down churches and gun stores but not liquor or cannabis stores; motor-boating prohibited but sailing is not; vacation rentals banned but not lodges; among many more disparities.

• It is vital that "We the people" keep on overseeing this process to ensure that the attempted power grabs -- for instance by those who would use this crisis to "restructure things to fit our vision" -- continue to be judged as intolerable acts.
  
  Shutting down America has caused many to ask who suspended the Bill of Rights. The re-opening of this country would do well to include close attention to righting wrongs that may -- deliberately or inadvertently -- have been inflicted on the US Constitution.

At the end of Chief Justice William Rehnquist's life, one of his great concerns was the government's use of crisis power at the expense of civil liberties, a concern he shared with law students during his last summer constitutional survey course in Cambridge, England.

"The Chief'", as he was respectfully known, revealed how deeply troubled he was with historical episodes that justified denial of constitutional rights. He pressed the students -- some of them future judges, government attorneys, state attorneys general -- to suggest alternatives that might better preserve civil liberties. Once freedoms were surrendered, Rehnquist warned, they would be even easier to take away when a future crisis or greater good came calling.

This spring, Americans have been enrolled in a "flatten the curve" regime, but when the government's justification for home confinement shifted to some vague prescription for safety, the constitutional supports for unreasonable confinement dissolved.

The government's promise to "make us safe" started to take on god-like proportions, based merely on the circumstance that government has the power to enforce irrational edicts. Worse, within that promise, there was no recognition of the increasing collateral damage on the other side of the equation: businesses, families, fortunes, and the generally ill who still needed doctors. There is also the looming burden of debt to be shouldered by future generations.

Now that America is pushing back on the coronavirus, there is healthy attention to the excess of some government orders. Complaints of constitutional violations cover almost the entire range of First to Fourteenth Amendment overreaches.

It is the disregard for due process -- the essential insurance policy against constitutional breaches -- that should alarm Americans. Due process is an important shield against tyranny -- especially of the local kind.

Due process is the general promise to citizens that government may not take life, liberty or property without proper notice and hearings. This protection implies, as courts have instructed, that laws are clear, that the hearing process is transparent, and that government is accountable.

The very orders that citizens across this land were protesting have been delivered wrapped in lack of transparency: forbidding only some assemblies; preferring big box stores; shutting down churches and gun stores but not liquor or cannabis stores; motor-boating prohibited but sailing is not; vacation rentals banned but not lodges; among many more disparities.

Stay-at-home orders and state quarantine blockades also were directed at wide swaths of territory and whole states rather than targeted "hot zone" areas.

When edicts are written in a careless, overbroad, or vague fashion, local authorities may be given, or assume, too much power. Some places, such as Florida, had border checkpoint instructions that provided for a two-week quarantine for "any person who had spent time in an area of substantial community spread." Such an instruction does not inform law enforcement -- or returnees or travelers into Florida -- who may be deprived of liberty.

Americans are right to protest when executive orders pick winners and losers while "not thinking of the Bill of Rights." Many of these orders make petty criminals of understandably confused violators.

While we have all learned much about the expansive Tenth Amendment's state police powers to oversee health and safety matters during a crisis, there are still limits. Emergency orders must have a legitimate connection to a justifiable government goal, they must not be arbitrary, and must not target any group in discriminatory way.

Courts are already affirming complaints of government overreach in cases that concerned the First Amendment's freedom of religion and assembly. The federal government and Texas Attorney General issued proclamations, amid a flurry of gun store restrictions, defending Second Amendment right to purchase a firearm.

Business owners in Pennsylvania are already appealing to the U.S. Supreme about "arbitrary and capricious" definitions that categorize "life sustaining businesses", while excluding others.

The lawyers at the American Freedom Law Center have filed a lawsuit against the governor of Michigan's irrational Executive Order 2020-42. Our "liberties are not conferred or granted by government to then be rescinded at the will and whims of government officials." Even more fundamental is that "These God-given liberties are possessed by the people, and they are guaranteed against government interference by the United States Constitution."

It is vital that "We the people" keep on overseeing this process to ensure that the attempted power grabs -- for instance by those who would use this crisis to "restructure things to fit our vision" -- continue to be judged as intolerable acts.

Karen Lugo, a constitutional law attorney, is a former member of the California Advisory Committee to U.S. Civil Rights Commission.

DECEMBER 12, 2019 by Don Smith, Wayne County SCOPE chapter chair
Joe, I read your article on “red flag” laws in the D&C’s December 11 edition. May I share some thoughts with you on the subject?

There’s a lot to dislike about red flag laws.

Relatively few people may take issue with the idea of taking guns away temporarily from people who may be dangerous. The problem is that the bar for taking away someone’s guns–depriving them of personal property without due process–is so ridiculously low.

John Lott wrote at the Washington Times about some of the problems with these laws:

Weld County Sheriff Steve Reams in Colorado made news Monday over his willingness to go to jail over his refusal to enforce what will soon be the state’s new “Red Flag” law.

Given the news media plays these laws, also known as Extreme Risk Protection Orders, as being so sensible, Sheriff Reams looks like a kooky right-winger. After all, who could be against taking away guns from people who are a danger to themselves or others?

But the laws are more complicated than usually discussed in the press. Depending upon the state, anyone from a family member, intimate partner, ex, house or apartment mates, or police can file a complaint. Under Colorado’s proposed law, anyone can make a phone call to the police. They don’t even have to be living in the state. There is no hearing. All the judge has before them is the statement of concern.

As in the Tom Cruise movie, “Minority Report,” all you have to do is figure out who is going to commit the crime. At least the “PreCrime” division in the movie had the help of psychics.

It has always been possible to take away someone’s guns, but all 50 states have required testimony by a mental health expert before a judge. Hearings could be conducted very quickly in urgent cases, But gun control advocates argue that it’s important to not even alert the person that his guns may be taken away. Hence, the 5 a.m. police raids. 

When people really pose a clear danger to themselves or others, they should be confined to a mental health facility. Simply denying them the right to legally buy a gun isn’t a serious remedy. If you think that you are any more likely to stop criminals from getting guns than illegal drugs, good luck. The same drug dealers sell both and are a major source of guns. And there are other weapons such as cars. 

I happen to agree with Lott. Recall the raid in Maryland ended badly for the occupant at about 5:15 a.m. He was killed by the police. Guns are not the only choiceof those determined to commit nefarious acts. Great Britain now finds knives have replaced guns as the tool of choice.

If people are a threat, they’re a threat. Treat them accordingly. A process already exists to deal with them. While I have issues with some those laws and how they’re applied, they are already on the books. New layers of “feel good” laws will offer little in the way of combatting violence.

Every section of the NY Mental Hygiene Law requires the presence of “imminent danger” prior to confiscation of someone’s firearms. I should say every section except Section 9.46 which was included in the so-called “SAFE” Act. It’s purpose, as with Red Flag laws, is to simplify confiscation by government agencies.

The anti-gunners are desperately trying to get these bills passed in every state despite the low probability of their effectiveness. How long until people start using these explicitly to punish individuals?

Well, there may already be cases of that.

Lott writes:

In the first nine months after Florida passed its Red Flag law last year, judges granted more than 1,000 confiscation orders. In the three months after Maryland’s law went into effect on Oct. 1, more than 300 people had their guns taken away. In one case in Anne Arundel County, a 61-year-old man died when the police stormed his home at 5 a.m. to take away his guns. Connecticut and Indiana have had these laws in effect for the longest time and have seen large increases in confiscation orders as time has gone by.

The data from Suffolk County is suspect also. Why does it account for 50% of the 170 ERPOs reported by you? I would also question the Indiana and Connecticut results from the Indianapolis University study. The 34 year time frame does not coincide with the recent presence of Red Flag laws. 

There are some unconfirmed reports that the man killed in Maryland was served with an extreme risk protective order because a family member disagreed with him politically. Those stories are unconfirmed in part because Maryland law essentially seals the records to protect the identity of those making the reports.

These ill conceived laws make it possible to accuse someone on a mere ‘hunch’ and then have the law protect the accuser despite lack of evidence. The accuser has no skin in the game and nothing to lose. 

More than a bit ridiculous, wouldn’t you agree?
Don Smith, Chairman, SCOPE of Wayne County

James A. Gagliano | May 04, 2020 12:45 PM

The time has come to cease affording the FBI’s Crossfire Hurricane team generous benefit of the doubt. A steady stream of unflattering revelations, beginning with a report by the Justice Department's inspector general into egregious FISA abuses last December, has relentlessly pounded the reputation of my former agency. Now, further irrefutable proof emerges that a small cabal of FBI headquarters decision-makers was hellbent on undoing a presidency.
Horowitz: “We did not reach that conclusion.”
Hawley: “Because I could have sworn — in fact, I know for a fact that I’ve heard that today from this committee. That’s not your conclusion?”
Horowitz: “We have been very careful in the connection with the FISAs for the reasons you mentioned to not reach that conclusion in part, as we’ve talked about earlier, [because of] the alteration of the email, the text messages associated with the individual who did that, and our inability to explain or understand, to get good explanations so that we could understand why this all happened.”
Strzok: “I called Bill and relayed what we discussed. He agrees.”

I know it sounds strange to hear me make such an accusation. I’m the guy who long attempted to thread the needle, accounting for honest human frailties, trusting that mistakes should not always be chalked up to malice or sinister intent. Cautious skepticism was a default mindset that served me well across a quarter century as an FBI investigator. That condition failed me here because one thing is clear.

Michael Flynn got railroaded.

Careful examination of fresh facts related to Flynn pleading guilty to Title 18 U.S. Code § 1001 (essentially, lying to a federal agent) provides an eye-popping and clear-cut case of investigative inconsistencies and partisan political bias. At the request of defense attorney Sidney Powell, who is seeking to have the retired lieutenant general’s plea withdrawn, additional evidence related to the Flynn case has recently been released by the prosecution. According to Flynn’s defense team, some uncovered FBI notes illustrate a concerted effort by former FBI Director James Comey's team to set Flynn up.

The notes in question are handwritten and appear to outline the Crossfire Hurricane team’s objectives for the planned interview with Flynn at the White House, just days after the inauguration of President Trump. They are clearly initialed by then-FBI Assistant Director for the Counterintelligence Division Bill Priestap. I know Bill from our overlapping assignments in the FBI’s New York office. He is an experienced, honorable, and well-respected lawman.

But one passage fairly leaped off the page at me:

“What's our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired? If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it.”

It almost appears as if Priestap is attempting to memorialize his own opposition to the Flynn ambush. As in, who would ever chronicle that type of stratagem knowing it might one day be considered Brady material or be subject to a Freedom of Information Act request? It defies credulity. But in Priestap’s defense, he was full-on sailing against the wind.

Then-FBI Deputy Director Andrew McCabe essentially called the shots in Crossfire Hurricane. The FBI is charged with enforcing federal law. Nowhere in our identified mission and priorities exists a goal to set a perjury trap or, absent evidence of a prosecutable crime, get someone fired. Why even consider this an objective?

To borrow a line from comedian Jeff Foxworthy: If this doesn’t bother you, you might be a party-over-country partisan.

Since the FBI was already in possession of the transcript of Flynn’s telephone call with Russian Ambassador Sergey Kislyak, what exactly was to be gained by the interview? Nothing except the potential to jam him up and get him removed as national security adviser. It was never going to charge him for violations of the Logan Act or the Foreign Agents Registration Act. Even Robert Mueller’s team could have done so. It passed. These laws are seldom, if ever, enforced. Just ask the lobbyists on K Street.

Even Comey once believed Flynn not to have misrepresented facts to the FBI. The fired former director, who enjoys a cozy relationship with the Washington Post, was awarded “Two Pinocchios” by the paper’s fact-checker after a denial in an interview with Fox News’s Bret Baier, who asked him if he had ever “[told] lawmakers that FBI agents didn’t believe former national security adviser Michael Flynn was lying intentionally to investigators?”

Which leads us back to the ubiquitous Peter Strzok and Lisa Page. After McCabe circumvented established channels, forgoing calls to DOJ or the newly emplaced White House counsel or chief of staff, Flynn became a ripe target. After assuring the new national security adviser that he didn’t need an attorney present, McCabe dispatched two agents to the White House.

During a conversation with MSNBC's Nicole Wallace in 2019, Comey smugly recounted this episode of personally sending Strzok and an FBI supervisory special agent, Joe Pientka, to meet with Flynn. According to Comey, this tactic was “something ... I probably wouldn't have done or gotten away with in a more organized investigation — a more organized administration."

So Strzok (famously fired for his partisan text exchanges with Page), along with the FBI official who overruled case personnel and ordered that the Flynn case remain open after recommendations that it be closed for lack of any evidence, had his opportunity.

What happened next infuriates me.

The Flynn FD-302 interview notes appear to have been manipulated by Strzok and Page. Pientka was apparently the note taker. Consistent with FBI protocols, Strzok, as a party to the interview, can certainly discuss recollections with Pientka prior to the final document being approved by both. But somehow, Page, the DOJ attorney who was not present at the interview and was not an FBI agent, was involved in the edits.

Strzok advises Page, in a newly released batch of text exchanges between the two, that he was “trying to not completely rewrite” the FD-302, “so as to save [redacted] voice.” The redacted name is most likely Pientka. Strzok wants the document to appear to be voiced by the other agent. But only after he and Page can craft the words to make Flynn appear guilty of lying to the FBI.

As retired FBI agent Thomas Baker points out in the Wall Street Journal:

“Worse still, the FD-302 that was eventually provided to the court wasn’t that of the agents’ interview of Mr. Flynn. It was instead an FD-302 of an interview of Mr. Strzok, conducted months later, about his recollections of the original interview. Truly bizarre.”

The uncomfortable truth is that the cases focusing on Trump (Crossfire Hurricane) and Hillary Clinton (Midyear Exam) were handled inconsistently. The Clinton investigation (which Obama-era Attorney General Loretta Lynch famously suggested be referred to as a "matter," not an investigation) was not handled aggressively or in keeping with the standards of the apolitical ethos of the FBI.

As former Rep. Trey Gowdy sarcastically described the stark differences between the hyperaggressive tactics employed against Flynn and the ludicrous preconditions that the FBI generously conceded to in order to interview Clinton in 2016:

“She had a medium-sized law firm in the room with her. They gave the questions to her lawyer before they interviewed her, and they most assuredly told her there’s a consequence for lying. None of which they did for Michael Flynn.”

So again, I ask: Why did the same crew of FBI investigators handle these two consequential investigations of political candidates in very different fashions if not for the rather obvious injection of political bias in decision-making?

Many have batted down that suggestion, arguing that Michael Horowitz’s report cleared the FBI’s Crossfire Hurricane team of partisanship. That is patently false.

Here’s Horowitz in exchange with Sen. Josh Hawley on Dec. 18, 2019:

Hawley: “Was it your conclusion that political bias did not affect any part of the Page investigation, any part of Crossfire Hurricane?”

Horowitz was referring to DOJ attorney Kevin Clinesmith, who materially altered an email to misrepresent information to the Foreign Intelligence Surveillance Court. You will also recall the text message whereby he defiantly exhorted, “Viva la Resistance.” Not much political bias to speak of there, right?

The final nail in the coffin of those who pretend political bias did not influence the FBI’s decisions in 2016 and 2017 is a text exchange between Strzok and Page on Feb. 25, 2016, discussing how to approach the Clinton interview:

Page: “One more thing: She might be our next president. The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more DOJ than FBI?”

Compare that to Priestap's quote: “What’s our goal? Truth/Admission or get him to lie, so we can get him fired?”

The contrast is stunning. No plausible explanation exists here other than rank partisan, political bias.

I’ll say it again: Michael Flynn got railroaded.

James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John's University. Gagliano is a member of the board of directors of the Law Enforcement Legal Defense Fund.

May 04, 2020, Pamela Helming

New York State Senator Pam Helming today joined local leaders to call for the reopening of area sportsmen's clubs. Recently, Governor Cuomo authorized the reopening of marinas and golf courses. However, other recreational opportunities that can be done with social distancing, such as clubs that offer  target, skeet, trap and sporting clays shooting have not been reopened. Many of the opportunities these clubs provide can be done with even greater social distancing than golf or boating.

“This is a common sense issue. Everyone, including our local sportsmen's clubs are putting public health first. Many of the activities these clubs offer, including target shooting and sporting clays courses allow for even greater social distancing than launching a boat from a marina or playing a round of golf. Area clubs are committed to protecting public health and allowing them to partially reopen would provide an important opportunity for parents and grandparents home with children to pass the traditions of the shooting sports and teach the next generation safe firearms handling practices. This is an important issue that our local elected officials are engaged with and I am proud to stand side by side with them in supporting our sportsmen and women,” said Senator Pam Helming. 

“Reopening shooting sports clubs is another step in a return to safe, recreational activities.  As various facets of public life prepare to reopen, it is important to proceed in such a way that the public feels re-assured that the activities can be engaged in safely, responsibly and in adherence to recommendations and guidelines established by our Public Health Officials.  Engaging in Shooting Sports is an activity enjoyed by so many of our residents and is a great way to safely participate in outdoor activity, learn and perfect skills and enjoy some leisure time and fresh air while still abiding by social distancing mandates,” said Canandaigua Town Supervisor Cathy Menikotz. 

“As concerned citizens of New York, we all look forward to being as fairly treated as equal to the golfer, boater/fishermen, and all outdoor enthusiasts and having the State of New York and the Governor thoughtfully restore our ability to participate in our chosen sports activities and practice our Constitutional rights.  As we open our outdoor shooting ranges and course facilities, we would assure those concerned that we would comply with all social distancing and hygiene requirements to help bring this state and national pandemic to its’ eventual conclusion,” said Daniel T. Pitler, President Canandaigua Sportsmen’s Club, Inc.

“As is often the case, we find ourselves with more questions than answers dealing with our new reality as we cope with the world's current pandemic. The main question that we, as NYers have is "When can we get back to our normal lives?". Whatever that new normal may look like, there are bound to be some changes and we understand that. We as a sportsman's organization, like other businesses, cannot stay on "lockdown" for an indeterminate time. In an effort to move forward, we ask that our organizations be afforded the same opportunity as other recreational businesses have been given, to open our ranges back up to our membership and guests. In doing so, proper person to person distancing, as well as adherence to suggested health guidelines would be a priority, and very much attainable. I believe I speak for many men and women, including our high school team members, who safely engage in our sport year after year. The 2nd Amendment is held in high regard by many upstate NYers, and we eagerly look forward to using our facilities, as intended, in a safe and healthy manner,” said Rick Bills, Hol-Field Rod and Gun Club

“On behalf of Ontario Rod and Gun Club Officers, Board of Directors, and our four hundred (400) members, we request to fully reopen our club to sport shooting, training classes and events. We will follow the guidelines and social distancing.as advised by health professionals,” said Steve Verdi, Chairman of the Board, Ontario Rod & Gun Club. 

“The Shooting Sports are activities that are enjoyed by all types of people. Young and old, male and female, athletes and non athletes. Enjoying the outdoor shooting sports whether competing or just plinking is a very healthy way to escape the current stress and anxiety that the COVID pandemic is creating. Concentrating on the “bird” when breaking clays or zeroing in on the bullseye takes strict attention and concentration along with safe gun handling practices to truly be successful. These outdoor activities are one of the safer, if not the safest, social distancing sports out there. Let’s reopen these Sportsmen’s Clubs and get our children, parents, grandparents, aunts and uncles out of their homes in a safe environment enjoying the shooting sports once again,” said Jeff Gallahan, Manchester Town Supervisor. 

“People are looking for safe recreational activities in this period of social distancing.  To allow golf courses and marinas to open with proper distancing, but not shooting clubs like the Canandaigua Sportsmen’s club is just ludicrous. This seems like a political decision, rather than a practical one and once again shows our governors disdain for the second amendment and proves he is out of touch with our part of NYS,” said Jared Simpson, Canandaigua Town Councilman.

10:30 am on May 4, 2020 by Cam Edwards
After considering nearly a dozen different Second Amendment-related cases in conference on Friday, the Supreme Court released its list of orders from the conference this morning. The bad news is that the Court has not yet accepted any of the cases, but the good news is that they haven’t dismissed any of the cases either.  Instead, the Court has carried over all of the cases, which means they’ll once again be heard in conference on May 14th.

There was a lot of speculation last week that the Court would quickly agree to hear at least one of the challenges, after justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh all stated that the Supreme Court needs to hear a Second Amendment case sooner rather than later to address lower courts’ misreading or unwillingness to abide by the Heller and McDonald decisions. The justices made their statements in opinions in the New York State Rifle & Pistol Association v. New York City case, which the court declared moot after New York City changed the gun transportation law that was being challenged.

While it’s disappointing that the Court didn’t take up a case immediately, it’s not exactly cause for alarm. There is likely a lot of discussion among the four justices that have expressed a desire to hear a Second Amendment-related case (or cases) about which of the cases are ripe for review.

Here’s a quick look at each of the cases currently in conference. Note that more than half of the cases before the Court deal with onerous carry laws that prohibit the average citizen from exercising their right to bear arms.

Mance v. Barr is a case challenging the ban on interstate sales of handguns.

Pena v. Horan is a challenge to California’s microstamping law, which took effect in 2012 and has curtailed not only the availability of new models of handguns, but has caused existing models of handguns to be barred from being sold in the state.

Rogers v. Grewal, Cheeseman v. Polillo, and  Ciolek v. New Jersey all deal with challenges to New Jersey’s carry laws and “justifiable need” requirement for a carry permit, while Malpasso v. Pallozzi takes on similar requirements in the state of Maryland.

Culp v. Raoul challenges an Illinois law barring residents from 45 other states from applying for a non-resident concealed carry license, while Wilson v. Cook County takes on the Illinois county’s ban on modern sporting rifles.

There are also two cases out of Massachusetts being considered by the Court; a challenge to Massachusetts’ carry laws called Gould v. Lipson Worman v. Healey and a challenge to the state’s ban on so-called assault weapons.

Finally, there’s Beers v. Barr, a case dealing with the lifelong prohibition on firearms for those who’ve been involuntarily committed to a mental institution.

It’s not unusual for a case to be re-listed several times before being accepted by the Court. In fact, NYSPRA v. NYC was heard in conference three times before it was accepted. Which of these cases will ultimately be heard by SCOTUS is still unknown, but I’d say the odds are good that at least one of these cases will be accepted in the not-too-distant future.

By TREVOR BURRUS,  May 1, 2020 11:35 AM
The Supreme Court should and will take a Second Amendment case very soon, and Senator Sheldon Whitehouse (D., R.I.) won’t be happy. When Whitehouse basically threatened the Supreme Court over a recent Second Amendment case, perhaps he didn’t realize that he could get what he wanted and still lose the fight. This week, although the Court dismissed as moot the case that had Whitehouse in a tizzy, the Court is reviewing a slew of Second Amendment petitions that he’ll like even less.avel restrictions for permitted gun owners and the first Second Amendment case the Court had taken in a decade. After the justices agreed to hear the case, New York City and New York state, fearing a decision that would strengthen the Second Amendment, moved quickly to change the law to keep the Court from issuing a decision. This is a form of strategic mooting, because courts generally don’t hear controversies that are no longer “live” because there is no relief a court can give if the law has already been changed. And while strategic mooting is fairly common, it’s an unsavory form of gamesmanship with the Court’s docket.

New York City asked that the case be removed from the docket, and Whitehouse, joined by four other senators, wrote an infamous amicus brief urging the Court to dismiss the case. Whitehouse didn’t just confine his arguments to the legal question of mootness. He came within a hair’s breadth of outright accusing the Court’s Republican-appointed justices as being shills for the NRA and the Federalist Society. His shocking brief closed with what many interpreted as a threat to restructure the Court if the justices didn’t go along with his request. “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

On Monday, the justices, by a 6-3 vote, dismissed the case as moot. The same day, they added ten held-over Second Amendment petitions to the Court’s calendar. These are petitions that were being held pending the Court’s decision in the New York case. The justices will discuss these petitions Friday, with decisions likely to be released on Monday.

Five of the petitions challenge various states’ “good reason” restrictions on the right to carry a weapon outside the home. Eight states issue carry permits provided that the applicant meets certain objective criteria (e.g. a criminal background check) as well as the vague subjective criterion that the applicant demonstrates a justified need to carry a firearm, often determined by a local sheriff. This has long been thought unconstitutional, and with good reason: No other constitutional right can be conditioned on the subjective determination of a local official. I wouldn’t want a Sheriff Sheldon Whitehouse determining whether I can carry a gun.

Another petition challenges California’s microstamping requirement, which requires new pistols to stamp the casing with an identifiable mark for better tracking. Problem is, no gun manufacturer has figured out how to do this. It’s akin to a law saying people have a right to free speech only if they’ve turned lead into gold.

There are also a couple of petitions challenging so-called “assault weapons” bans and high-capacity magazine restrictions, and a petition challenging the federal ban on interstate firearm sales, which for some reason irrationally applies to handguns but not rifles.

The Court needs to take a Second Amendment case soon, whether it’s one of these cases or another. In the ten years since the Court took a Second Amendment case, the lower courts have floundered to figure out what the decisions in Heller and McDonald mean. The Ninth Circuit has made a habit out of rubber-stamping almost any restriction on firearms. For example, the court upheld California’s ten-day waiting period law as it applied to those who passed the background check in fewer than ten days and were already owners of a firearm or even had a concealed carry permit.

The Seventh Circuit, on the other hand, struck down Chicago’s ban on shooting ranges in the city — correctly reasoning that if the purpose of the Second Amendment is to allow guns for self-defense, then that entails the ability to practice with the gun. In response to the Seventh Circuit’s decision, the city created an elaborate set of regulations for shooting ranges that left only 2.2 percent of the city even theoretically available for shooting ranges. The Seventh Circuit struck those down too.

There’s a wide variance between the circuits where seemingly any gun law is okay and those, like the Seventh, that take the Second Amendment seriously. One of the Court’s most important jobs is to rectify that variance. They’ll soon take a case to do that, and Senator Whitehouse will again be unhappy.

Good evening,

These are trying times for the Second Amendment in New York State and throughout the nation. This week, the United States Supreme Court mooted NYSRPA’s challenge to a New York City firearms law. The decision was per curiam (no single Justice authored the decision) and the vote was 6-3, with Justices Kavanaugh and Roberts siding with the majority.

While we hoped that this case would not be mooted, and in it the conservative majority on the U.S. Supreme Court would once and for all settle New York State’s failure to respect the doctrine of stare decisis (precedent of previous legal decisions) and hold that Second Amendment challenges must be viewed in light of strict scrutiny analysis, the Court did not agree.

Justice Kavanaugh filed a concurring opinion expressing his concerns that states like New York are not enforcing the Heller precedent. In his concurring opinion, Justice Kavanaugh wrote, “I also agree with Justice Alito’s general analysis of Heller and McDonald. And I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

There are ten such petitions for certiorari pending before the Court. And that brings us to what happened today. In a rare move on the same day the NYSRPA decision was issued, the U.S. Supreme Court distributed all ten cases for conference this morning, Friday, May 1, 2020. This means that the court is considering re-taking the issue in a new, and potentially better case in the upcoming October 2020 term at the end of this year. Virtually all of these cases pose better Second Amendment issues than NYSRPA’s failed attempt to narrowly strike down a New York City law. Better yet, Justice Kavanaugh hinted his concerns at raising the level of scrutiny used in Second Amendment Analysis.

The potential cases are listed below, as follows:

Mance v. Barr – Whether the federal ban on interstate handgun sales violates the Second Amendment or the due process clause of the Fifth Amendment.

Rogers v. Grewal – In a challenge to New Jersey’s handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.

Pena v. Horan – In a challenge to a California law banning most commonly used handguns, the petition asks the justices to weigh in on the scope of the Second Amendment.

Gould v. Lipson – In a challenge to Massachusetts’ handgun carry permit scheme, whether the Second Amendment protects the right to carry a handgun outside the home for self-defense; and whether the government can condition the right to carry a handgun outside the home on the showing of a special need to carry a firearm.

Cheeseman v. Polillo – Challenge to New Jersey handgun carry permit scheme.

Ciolek v. New Jersey – Challenge to New Jersey handgun carry permit scheme.

Worman v. Healey – Challenge to Massachusetts ban on the possession of assault weapons and large-capacity magazines.

Malpasso v. Pallozzi – In a challenge to Maryland’s handgun carry permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense.

Culp v. Raoul – Whether the Second Amendment requires Illinois to allow nonresidents to apply for a concealed-carry license.

Wilson v. Cook County – Challenge to Cook County’s (Chicago, IL) ban on assault rifles and large-capacity magazines, as well as to the Second Amendment analysis used by the U.S. Court of Appeals for the 7th Circuit to uphold the ban.

Orders on this conference are expected on Monday, May 4, 2020 at 9:30 a.m. You can expect to receive a follow-up email from us that morning providing you with an update on the Court’s decisions late Monday morning. There is reason for hope. It takes four Justices to decide to grant certiorari on a case. Three dissented from the NYSRPA decision and we expect that they will vote to hear at least one Second Amendment case. We also take Justice Kavanaugh at his word that one of the currently pending Second Amendment petitions for certiorari should be granted. That brings the total to four justices. That is why we have hope. We have all the legal resources and help imaginable at our disposal to join these cases as amici. Where there is help, there is hope.

We are all in the together. The 1791 Society and GOA-New York have decided to work together in the filing of amicus curiae briefs (friend of the court) on any and all cases that the U.S. Supreme Court takes on this matter. We will also be filing an amicus curiae brief on the California ammunition case currently pending before the U.S. Court of Appeals for the Ninth Circuit.

Meanwhile, it is imperative that we all work together to get quality, up to date information to gun owners throughout the state. Please pass this information along to your family, friends, neighbors, colleagues. We are not asking for money, we are asking that you help us distribute quality information to others so that they can understand what is going on.

If you have any legal questions or any other questions regarding our strategy going forward, please send all inquiries to: the1791society@outlook.com

Have a great weekend. We will see all of you on Monday.

Cordially,
Frank J. Panasuk
Bill Robinson
Carl Leas

April 29, 2020, by Dave Workman

In the process of once again kicking the legal can down the road on a Second Amendment case, the U.S. Supreme Court may have opened the door to finally take another case dealing with the right to keep and bear arms, thanks to a remark by Associate Justice Brett Kavanaugh in his short concurrence with the majority.

“I share JUSTICE ALITO’s concern,” Kavanaugh writes, “that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

It's not that some courts may be applying the two rulings improperly, it sometimes seems the lower courts are deliberately ignoring the decisions, some activists have suggested.

It took one look at Kavanaugh's comment for Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, to suggest, “SCOTUS mooted the New York case as the old law is no longer valid, but invited hearing another case pending before the high court to insure that lower courts adhere to the Heller and McDonald rulings made previously by the high court. We’ve got four ready-made cases now on the table just waiting for acceptance.”

Not in recent memory, if ever, did one organization—especially a gun rights group—have four “ready-made” cases on the table just waiting for the high court to accept one, or more, for review.

In the ten years since the Supreme Court ruled 5-4 in the landmark case of McDonald v. City of Chicago—a SAF case, incidentally—the court under Chief Justice John Roberts has been reluctant, if not downright unwilling, according to some critics, to take another Second Amendment case. Some in the gun rights community are convinced it is because the high court knows there is only one correct ruling that might come out of any case, and it would expand the right to keep and especially bear arms outside the home. Politically, that could be a nightmare for the states of California, Connecticut, Maryland, Massachusetts, New Jersey and New York, and maybe other jurisdictions because of their restrictive gun control laws.

The now-defunct New York City ordinance forbidding travel outside the city limits with a legally-owned handgun at the heart of New York Rifle & Pistol Association v. City of New York was a glaring example. Mooted Monday and remanded, the lawsuit challenged a regulation that—as the history of this bizarre case illustrates—was so egregious it begged for nullification.

While NBC News declared the Supreme Court’s decision was a “defeat for gun rights advocates,” many of those advocates say that’s nonsense. The city’s mad scramble to change the law almost instantaneously after the high court accepted the case is tantamount to an admission the city knew all along its regulation was unconstitutional and thus had to be changed before the court declared it so. That is a victory apparently in too good a disguise for NBC because a government was so terrified of a high court ruling it changed a law to dodge a legal bullet.

But what of these four SAF cases mentioned? Gottlieb, in a prepared statement, contended that all four could serve the purpose Kavanaugh addressed.

“We hope,” Gottlieb said, “that one or all of these cases gets heard and gives notice to lower courts that they can no longer thumb their noses at the prior rulings that protect Second Amendment rights.”

Let’s take a look.

Lori Rodriguez, et al. v. City of San Jose – This one appears to have potential, because the high court recently instructed the City of San Jose to respond to a writ of certiorari from the Second Amendment Foundation “on or before May 20.” That’s a signal the court is interested in this case, which alleges unlawful confiscation of legally-owned firearms and refusal to return those guns.

Plaintiff Lori Rodriguez’ firearms were seized seven years ago after her husband was taken to a hospital on a mental health issue, according to SAF. At the time, a San Jose police officer advised Rodriguez he had authority to seize all firearms in the residence, including those belonging only to her. Those guns were all locked in a California-approved safe. The guns were taken without a warrant, and over Rodriguez’s objection.

“If the city thought they could just ignore this case and make it go away, they’re wrong,” Gottlieb said.

Remarkably, Gottlieb has noted, even though the courts recognize that Lori Rodriguez could legally purchase new firearms, San Jose authorities simply refuse to return the guns she already legally owns. Last summer, the Ninth Circuit Court of Appeals upheld a lower court’s decision to grant summary judgment to the defendants, ruling the defendants were allowed to seize her guns under a concept called “community caretaking.”

“This case is a travesty,” Gottlieb declared at the time. “Lori Rodriguez is not a criminal, nor is she prohibited by law from owning firearms. Yet she’s essentially been robbed by the City of San Jose and its police department, with the cooperation of lower courts, including the Ninth Circuit Court of Appeals.”

“Mrs. Rodriguez has at all times complied with California’s many gun control laws, including those requiring locked storage,” said plaintiff’s attorney Don Kilmer when the case was first submitted for Supreme Court review. “But the City of San Jose outrageously continues to refuse to return the constitutionally protected property they unlawfully took from her years ago. Governments have no reason and no right to take guns from law-abiding people who are legally eligible to keep and bear arms.”

Pena v. Horan – SAF is partnered with the Calguns Foundation in a challenge of the California Unsafe Handgun Act (UHA). When the case was submitted, SAF issued a news release stating, “It could be a critical wake-up call to lower federal courts that continue to employ what they call an ‘interest-balancing approach’ to deciding gun control cases because that strategy is forbidden by the 2008 Heller decision.”

As explained by SAF, the UHA generally prohibits the manufacture, import or distribution of handguns that do not meet the state’s extremely restrictive design requirements under the state penal code. The result, as the plaintiffs contend in their petition for high court review, is that the state is gradually achieving a handgun ban because they cannot meet the impossible requirements, which include microstamping. That technology is not offered by any handgun manufacturer because it cannot be practically implemented, the petition notes.

“The landmark Heller ruling cannot become just a footnote in history,” Gottlieb said last year, “but that appears to be the ultimate goal if such laws as California’s are allowed to stand. We are hopeful that the Supreme Court, with the benefit of fresh perspectives from two new associate justices, agrees that it is time to once again visit the Second Amendment and further restore its rightful place as a cornerstone of the Bill of Rights.”

Gottlieb may have hit the bull’s eye with that observation. When both justices Neil Gorsuch and Kavanaugh were nominated to Supreme Court vacancies, anti-gun Democrats and gun prohibition lobbying groups were furious in their opposition. They did not want two presumably pro-Second Amendment jurists added to the court.

Culp v. Madigan – SAF has established a considerable amount of legal precedent at the expense of the State of Illinois, and this could be another step. Joining SAF in this case are the Illinois State Rifle Association, Illinois Carry, Inc., and ten individual plaintiffs, all residing of other states and who are licensed to carry in those states. Under Illinois statute, only residents from states with “substantially similar” requirements to obtain a carry license are allowed to apply for non-resident licenses.

“This lawsuit,” said plaintiffs’ attorney David Sigale when the case was filed, “is brought because it is unfair that otherwise qualified people from states outside Illinois, who work and travel in Illinois are barred from obtaining means to defend themselves in public solely based on their state of residence. We expect to correct that.”

According to court documents, “This is an action pursuant to 42 U.S.C. § 1983 for deprivation of civil rights under color of law, which seeks equitable, declaratory, and injunctive relief challenging the State of Illinois’s prohibition on virtually all otherwise qualified non-Illinois residents from obtaining a concealed carry license, pursuant to Illinois Compiled Statute (ILCS).”

All of the plaintiffs in this case have already gone through background checks in their home states to qualify for resident concealed carry permits/licenses.

Wilson v. Cook County – SAF and the Illinois State Rifle Association are supporting this case financially but are not named plaintiffs. Matthew D. Wilson and Troy Edhlund are suing Cook County, Illinois over “Whether the Second Amendment to the United States Constitution allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are “in common use at [this] time” and are not “dangerous and unusual.”

Essentially, this is a challenge of Cook County’s ban on so-called “assault weapons.” Sigale is again the attorney on this one.

Mance v. Barr – This case dates back to 2014 when Eric Holder was attorney general in the Obama administration, and was originally known as “Mance v. Holder.” Historically, it’s something of a first because SAF is not a plaintiff, but its sister organization, the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), wears that mantle. SAF is providing financial support.

The case challenges the federal law prohibiting cross-state handgun purchases. With the advent of the National Instant Check System (NICS), there should be no reason why any qualified citizen, regardless of state of residence, should not be able to purchase a handgun legally in another state. Essentially, if a person clears a background check in his or her home state, they would clear a

NICS check in a different state because their status would not change simply by crossing a state line.

At the time this case was filed, Gottlieb observed, “It is overreaching, if not downright silly, in today’s environment with the federal instant background check system to perpetuate a prohibition on interstate handgun purchases that has outlived its usefulness.”

Fredric Russell Mance, Jr., for whom the case is named, is a Texas firearms dealer. Tracey Ambeau Hanson and Andrew Hanson, are residents of Washington, D.C., and wanted to purchase a handgun from Mance.

Rights activists contend it is high time for another Second Amendment ruling from the high court. They argue that the “right to bear arms” cannot possibly mean this right only applies to the confines of one’s home or business, else it is no right at all.

As Judge Richard Posner, writing for the majority in Moore v. Madigan, 7th District Court of Appeals, observed, “The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home. And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”

April 30, 2020, by Dean Weingarten, Ammoland Inc. 

The restrictions Canada has placed on obtaining, keeping, and using firearms failed entirely in the recent mass murder case in Nova Scotia. I refrain from using the murderer's name.

Canadian restrictions on gun ownership failed. The murderer had plead guilty to an assault charge in 2002. He paid a $50 fine, and served probation for nine months. He then had a lifetime ban on owning firearms.  From nypost.com:

Authorities said Wortman did not have a police record, but information later emerged of at least one run-in with the law. Nova Scotia court records confirm he was ordered to receive counseling for anger management after pleading guilty to assaulting a man in the Halifax area on Oct. 29, 2001.

The guilty plea came on Oct. 7, 2002, as his trial was about to begin. He was placed on probation for nine months, fined $50 and told to stay away from the man, and also prohibited from owning or possessing a weapon, ammunition or explosive substances.

Mass shootings are relatively rare in Canada. The country overhauled its gun control laws after Marc Lepine shot 14 women and himself to death at Montreal’s Ecole Polytechnique college in 1989. Before the weekend rampage, that had been Canada’s worst mass shooting.

Authorities have not released much information about what firearms the murderer used in his killings. We know he took one handgun and magazines from the RCMP officer he killed. The standard-issue handgun for the RCMP is the Smith & Wesson 5946 9mm. It is a stainless steel, double action only version of the S&W model 59 series. The magazine holds 15 rounds of ammunition.  It has been reported the killer used one handgun and several long guns. From the CBC.ca:

Investigators are trying to piece together how Gabriel Wortman was able to obtain the handgun and long guns he used last weekend in a deadly rampage through rural Nova Scotia, including how some made it across the Canada-U.S. border.

Police have traced one of Wortman's weapons back to Canada, but believe the others may have been obtained in the United States, the RCMP revealed on Friday.

It is unlikely the killer used any “military style” semi-automatic rifles, because, if he had, it would have been reported. It would be in Prime Minister Trudeau's interest to have it reported.

In the former Soviet Union, people deduced what was happening by what was *not* said.  I suspect, eventually, we will know precisely what firearms were used; at the moment, it may suit the PM's purpose for that information to be withheld.

PM Trudeau is pushing for a ban on “military style firearms”, although they are seldom used in crime in either the United States or Canada. Handguns have been tightly controlled in Canada since 1935. It is common for those who push for a disarmed population to use an unrelated crime to push for controls which would have had no effect on the crime being used.

Those who wish a disarmed population are never satisfied. They cannot admit their policies were wrong; a failure always results in a call for more restrictions.

The murderer was a fairly successful denturist (someone who makes dentures), and is reported as owning several properties in Nova Scotia. His business had been shut down during the Coronavirus restrictions, for the previous month before the murders.

It has been reported he and his girlfriend argued at a party, that they then returned home; the argument became violent. The denturist tied up or restrained the girlfriend in some way. She escaped and hid in the woods.  Then the killer starts his killing spree.  The exact timing is not yet known.

There has not been any official speculation as to whether business losses from the Covid19 shutdown or the knowledge that the girlfriend escaped, were triggers for the killing spree.  The Royal Canadian Mounted Police continue to investigate.

Strong restrictions on the ownership of firearms have proved ineffective in preventing violence by a person who has assets and is not concerned with losing them. The murderer burned down his own home at the start of the spree. He had plenty of money to accumulate unregistered guns over his life.

Mass killers often do not expect to survive their rampage, although some do.

Reducing the number of legal firearms seems to have little effect on the acquisition of firearms for illegal purposes.

India and China have had strict firearms control in effect for many decades. The Small Arms survey shows tens of millions of illegal firearms in both countries.

Brazil has had strict firearms controls, and a relatively small number of legal guns, yet it has had a very high murder rate with firearms.

In Australia, a jeweler, with similar skills to a denturist, made over a hundred submachine guns for the black market.  Similar submachine guns have been made in Canada, and all over the world.

Home and small shop manufacture place a physical limit on how effective gun control can be

by Frank Miniter, Editor in Chief - Monday, April 27, 2020
In a disappointing decision, the U.S. Supreme Court called New York State Rifle & Pistol Association v. New York City moot.

This was the first significant Second Amendment case the high court had heard in a decade. Instead of handing down a ruling, a majority of justices took the dodge New York City’s lawyers offered them: They declared that the gun-control laws in question had already been changed by the city and state of New York, and therefore the challenge is made irrelevant.

The justices did this after, in a “friend-of-the-court” brief last fall, five U.S. senators, all Democrats, threatened the U.S. Supreme Court by writing: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

The issue behind this case’s central complaint was that New York City’s police commissioner forbade most licensed gun owners (those with “premises permits”) from taking their guns to ranges and second homes outside city limits.

After the U.S. Supreme Court accepted this case, New York City repealed this rule, though it gave itself a lot of discretion in how to apply it; for example, it’s unclear whether a person when traveling out of the City with a licensed gun can even stop to fill their gas tank.

Then, last fall, the Court declined to call the case moot. This, at the time, gave hope to anyone who cherishes their American freedom; after all, President Donald J. Trump’s nominees, Justices Neil Gorsuch and Brett Kavanaugh, might just vote to expand access to Second Amendment rights.

Instead, the case ended up being ruled “moot” anyway.

In calling the case “moot,” a majority of the justices ruled: “On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City’s old rule. The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.”

So the high court punted at a time when some lower courts have been all but disregarding the U.S. Supreme Court’s previous landmark Second Amendment decisions—District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

In a concurring opinion to this decision, Justice Brett Kavanaugh, after agreeing with the Court’s decision to call this case “moot,” wrote: “I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

Justice Samuel Alito’s dissent to this decision is so sharp, it would make the late Justice Antonin Scalia proud.

“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced. Twelve years ago in District of Columbia v. Heller … we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago … established that this right is fully applicable to the States. Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed. We have been asked to review many of these decisions, but until this case, we denied all such requests,” wrote Justice Alito.

Quoting Chafin v. Chafin (2013), Justice Alito noted that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”

Justice Alito then said the central part of this case, the “premises license,” is still very much a live constitutional issue. He shows this by outlining what a New York City resident must endure to hopefully receive a premises license enabling them to shoot at a range, not to carry concealed.

First of all, the New York City Police Department will only issue a premises license to someone the bureaucracy thinks has a “good moral character.” Then, New York City “residents must submit their applications in-person at One Police Plaza in Manhattan. An applicant must pay a fee of $431.50; must provide proof of age, citizenship, and residence; and must produce an original Social Security card,” writes Justice Alito.

In this lengthy process, an applicant must undergo a police investigation and provide detailed information on past employment, criminal history, health questions and more. The applicant must even “explain where and how he or she will safeguard the handgun when not in use, and furnish the name and address of a New York State resident who will take custody of the handgun in the event of the applicant’s death or disability.”

The gauntlet goes on and on in a bureaucratic pummeling that the City can use to deny an applicant for any whim or asserted rationale whatsoever.

“The NYPD may revoke a premises license at any time, including for such things as laminating the license. And a license expires after three years, so a licensee who wants to continue to possess a gun in the home after that time must file a renewal application,” writes Alito.

Clearly, New York City is not treating the Second Amendment as a right that’s specifically protected in the U.S. Bill of Rights. They are treating it as a legal privilege they can restrict or outright takeaway whenever and however they like.

That, by itself, is an affront to the U.S. Supreme Court’s Heller and McDonald decisions, yet the U.S. Supreme Court called it “moot.”