Tag: 2nd amendment

Prosecutors of 6-Year-Old Shooter’s Mother Claim Gun-Owning Pot Users Are ‘Inherently Dangerous’

On Wednesday, a federal judge sentenced Deja Taylor, a 26-year-old Virginia woman whose 6-year-old son used her pistol to shoot a teacher last January, to 21 months in prison for owning a gun while using marijuana. In June, Taylor pleaded guilty to violating 18 USC 922(g)(3), which makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of a “controlled substance” to possess a firearm. She also admitted that she falsely denied drug use on the form she filled out when she bought the pistol, a felony punishable by up to 10 years in prison.

“This case is not a marijuana case,” Assistant U.S. Attorney Lisa McKeel wrote in the government’s sentencing memorandum. “It is a case that underscores the inherently dangerous nature [of] and [the] circumstances that arise from the caustic cocktail of mixing consistent and prolonged controlled substance use with a lethal firearm.”

McKeel is partly right: Strictly speaking, this is a firearm case, not a marijuana case. Yet there would be no firearm case without federal marijuana prohibition. And while the evidence indicates that Taylor was neither a model gun owner nor a model cannabis consumer, her federal firearm offenses do not hinge on the details of her behavior. Survey data suggest that millions of Americans are gun-owning cannabis consumers, meaning they are guilty of the same felony that earned Taylor a prison sentence, even if they pose no danger to anyone. As a federal appeals court recently noted, that situation is hard to reconcile with “the right of the people to keep and bear arms.”

According to the National Survey on Drug Use and Health, over 60 million Americans used illegal drugs (mainly marijuana) in 2021. Based on surveys indicating that roughly one-third of American adults own guns, we can surmise that something like 20 million people violated Section 922(g)(3) that year. Yet on average, federal prosecutors file just 120 charges under that provision each year. In other words, only a minuscule percentage of the potential defendants will ever become actual defendants.

It is no mystery why Taylor ended up being part of that tiny minority. First, her marijuana use attracted official attention as a result of the investigation that followed her son’s January 6 assault on Abigail Zwerner, a teacher at Richneck Elementary School in Newport News, who underwent five surgeries to repair the damage that the bullet he fired did to her hand and lung. Second, that investigation also revealed a pattern of irresponsible conduct, which was not legally necessary to prosecute Taylor’s firearm offenses but surely played a role in the decision to pursue a federal case.

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He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says.

The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to “felons,” but that shorthand is misleading. The provision, 18 USC 922(g)(1), actually covers anyone convicted of “a crime punishable by imprisonment for a term exceeding one year.” That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005. Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams’ Second Amendment rights, a federal judge ruled on Tuesday. U.S. District Judge John Milton Younge’s decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this “prohibited person” category, which includes many Americans with no history of violence.

Back in 1995, Bryan Range pleaded guilty to fraudulently obtaining $2,458 in food stamps by understating his income. He returned the money, paid a $100 fine and $288 in court costs, and served three years of probation. But although he did not initially realize it, that Pennsylvania misdemeanor conviction also carried a lifelong penalty under Section 922(g)(1): permanent loss of his Second Amendment rights. Even though Range did not serve any time behind bars, his crime theoretically was punishable by up to five years in prison.

Applying the constitutional test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen, the 3rd Circuit concluded that disarming Range was not “consistent with this Nation’s historical tradition of firearm regulation.” Writing for the majority, Judge Thomas M. Hardiman noted that laws restricting gun rights based on criminal records were not enacted until relatively recently.

The first such federal law, the Federal Firearms Act of 1938, applied only to violent crimes such as murder, manslaughter, rape, kidnapping, robbery, and assault with a deadly weapon. In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison. “We are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of ‘longstanding’ for purposes of demarcating the scope of a constitutional right,” Hardiman wrote.

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Wealthy LA father who pulled gun on masked intruders as they tried to break into his luxury home while his baby was inside reveals he has been STRIPPED of his firearm permit ‘because he yelled at cops when they arrived’

A Los Angeles father who pulled a gun on masked intruders when they tried to break into his luxury home has revealed he has been stripped of his firearm permit.

In a video for the National Rifle Association, Vince Ricci said his concealed carry license was ‘revoked’ after he was attacked by two men at his $2million house.

‘After successfully defending my home and my family and my five-month-old child, California has now decided to suspend my Second Amendment [rights],’ Ricci said.

The entrepreneur, who is the CEO of a photo studio, told Fox News the sheriff’s office called him on Thursday telling him it was due to him ‘yelling’ at officers.

He had previously blasted the LAPD for ‘sloppy police work’, including their alleged negligence in picking up casings scattered near his home as evidence.

DailyMail.com has reached out to the LAPD for comment.

On November 4 just after Ricci returned home to his gated LA home, two armed men jumped his fence and tried to force their way into his house.

Footage of the gunfight revealed the moment in which he is approached by one of the masked assailants at about 7.30pm.

In a swift attempt to defend himself, his wife, five-month-old and the nanny inside Ricci reached for his gun and started a shootout with the intruders.

Obtaining a concealed carry permit in California is more difficult than other states with Ricci telling Fox News Digital it took him months to process it.

In California residents over the age of 18 can legally carry firearms on private property and residences without a permit or license.

‘My situation is unique because it happened at my front door, all on camera,’ he said. ‘But this happens time and time again all over the country…

‘People sweep it under the rug because it doesn’t behoove their political agenda. The fact is, evil will always exist.’

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Biden’s Justice Department Says Marijuana Consumers Are ‘Unlikely’ To Store Guns Properly In Latest Defense Of Federal Ban

The Biden administration has once again found itself in federal court defending a ban preventing people who use marijuana from buying or possessing firearms, arguing that historical precedent “comfortably” supports the restriction and that cannabis consumers with guns pose a unique danger to society, in part because they’re “unlikely” to store their weapon properly before using marijuana.

In a brief submitted to the U.S. Court of Appeals for the Third Circuit on Wednesday, attorneys for the Justice Department responded to a series of prompts from the judges, asserting that the firearm ban for marijuana consumers is justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.

The federal government has repeatedly affirmed that those analogues, which must be demonstrated to maintain firearm restrictions under a recent Supreme Court ruling, provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.

For the case before the Third Circuit, the government is defending the ban against Erik Matthew Harris, who was convicted of violating the federal statute prohibiting the possession of a firearm by a person “who is an unlawful user of or addicted to any controlled substance.” As the Daily Caller first reported, Harris’s legal representation also submitted a supplemental brief to the court on Wednesday that broadly disputes both the substance of the conviction under the statute, as well as the idea that there are relevant historical analogues to uphold the existing ban.

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Holton Township, Michigan establishes its own MILITIA to protect second amendment and declares it will not enforce new red-flag laws restricting gun ownership

A Michigan township has established its own militia to protect the Second Amendment rights of its 2,500 citizens.

Holton Township, in Muskegon County, passed a Second Amendment Resolution on Tuesday night establishing itself as a ‘Second Amendment Sanctuary’. 

The resolution included an addendum establishing their very own militia. 

Under the changes, all legal residents with primary residence within Holton now have the opportunity to join the militia but must adhere to federal firearm checks. 

The town said they are adopting policies ‘necessary for the security and rights of Holton Township residents.’

‘The people of Holton Township, through their duly elected members of the Holton Township Board, hereby designate Holton Township as a Second Amendment Sanctuary in order to preserve for the people of, on and in Holton Township, the inalienable rights guaranteed by the Constitution of the United States of America,’ the resolution reads. 

‘The Holton Township Board hereby declares its intent to oppose any infringement on the right of law abiding citizens to keep and bear arms. 

‘We, the people of Holton Township, hereby declare our inalienable rights, our freedom and our Liberty as guaranteed by the Constitution of the United States of America.’ 

The addendum laid out conditions for residents wishing to join the militia. 

Residents must be over the age of 18, have passed a federal firearms background check and state on open social media or by letter that they wish to join the militia. 

The addendum also says that the township will not acknowledge any new laws that are associated with red flag laws. 

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Gun Hobbyists (and Liberty) Win Big in Court

The Biden administration’s scheme to threaten the public with tightened gun-control regulations by reinterpreting laws to mean what they never meant in the past is running into some speed bumps. Stumbling over one of those obstacles is an attempt by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to define unfinished firearm frames and receivers—functionally, paperweights—as firearms for the purpose of regulating homemade “ghost guns.” The courts aren’t buying the government’s argument and on November 9 delivered another slap to regulators and the White House.

“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” wrote Judge Kurt D. Engelhardt for three judges of the Fifth Circuit Court of Appeals in ruling on VanDerStok v. Garland. “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”

Specifically, the court addressed portions of the ATF’s new “frame and receiver” rule which reinterpreted existing law, particularly elements of the Gun Control Act of 1968. The rule would extend the ATF’s reach and allow the government to restrict home construction of firearms in ways that the Biden White House wants as part of a crusade against so-called “ghost guns” but hasn’t been able to get through Congress.

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5th Circuit Panel Unanimously Finds ATF’s 80 Percent Firearm Frame Rule ‘Unlawful’

A three-judge panel for the United States Court of Appeals for the Fifth Circuit decided on Thursday against the ATF’s 80 percent frame rule, finding that the ATF overstepped its bounds in issuing it.

The 80 percent or partial frame rule is contained within ATF Final Rule 2021-05F, and makes clear the ATF’s position that partially completed pistol frames–commonly known as 80 percent frames–are “firearms.”

The ATF’s rule on frames took effect on August 24, 2022, and following public pushback, the ATF released a December 27, 2022, letter, reiterating that their rule does hold that “partially complete pistol frames” are “firearms.’ This opens the door for a background check requirement for certain gun parts and/or parts kits.

All three judges on the Fifth Circuit panel decided against the ATF’s rule.

The three judges, Kurt D. Engelhardt, Andrew S. Oldham, and Don Willet, were all appointed by Donald Trump. The case made its way to them on appeal from the United States District Court for the Northern District of Texas.

The judges seized on the the ATF’s act redefining partial frames as firearms, noting that in so doing the ATF went beyond Congress.

Engelhardt wrote the court’s opinion and noted:

The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.

Oldham, concurring, pointed to what he saw as the ATF’s core blunder: “ATF’s foundational legal error is that it conflated two very different statutes: the Gun Control Act of 1968 and the National Firearms Act of 1934. Those two statutes give ATF very different powers to regulate very different types of weapons.”

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Federal Judge Smacks Down Biden’s ATF AR-15 Gun Ban

A Trump appointed federal judge just smacked down an attempt by Biden’s ATF to ban AR-15 pistols with arm braces.

It’s amazing. No matter how bad crime gets, the Democrat left is still intent on trying to disarm law abiding Americans.

Gun sales are through the roof right now, as Americans were horrified by the attacks on mostly unarmed Israelis by Hamas in October.

The Washington Examiner reports:

Judge crushes ATF AR-15 gun ban

A federal judge late Wednesday gave millions of gun owners breathing room when he slammed the Biden administration’s effort to ban a big slice of the AR-15 market.

U.S. District Court Judge Matthew Kacsmaryk blocked the Bureau of Alcohol, Tobacco, Firearms and Explosives from enforcing its ban on AR-15 style “pistols” equipped with arm braces, calling the agency’s new rule unlawful.

“Public safety concerns must be addressed in ways that are lawful. This rule is not,” said the Trump-appointed judge.

The nine-page decision is the latest to challenge the ATF over its rule requiring millions of owners of braced guns to register the firearms and pay a $200 tax, or face 10 years in jail. Kacsmaryk’s decision is the most sweeping, covering the whole country.

At issue is the ATF’s rule issued earlier this year to ban the braces on the guns. The agency claims it turns a pistol into a dangerous rifle and supporters have cited how the weapons have been used in a handful of mass shootings.

However, for years before its ban, the ATF allowed the braces to be sold, and they have become so common that some estimate 40 million or more are in circulation, making the AR-style pistol one of the most commonly held firearms in the nation.

This tweet includes an image of the guns in question.

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US Supreme Court hears arguments over domestic-violence gun curbs

The U.S. Supreme Court on Tuesday was hearing arguments on the legality of a federal law that makes it a crime for people under domestic violence restraining orders to have guns in the latest major case to test the willingness of its conservative majority to further expand gun rights.

The justices heard an appeal by President Joe Biden’s administration of a lower court’s ruling striking down the law – intended to protect victims of domestic abuse – as a violation of the U.S. Constitution’s Second Amendment right to “keep and bear arms.”

The New Orleans-based 5th U.S. Circuit Court of Appeals concluded that the measure failed a stringent test set by the Supreme Court in a 2022 ruling that required gun laws to be “consistent with the nation’s historical tradition of firearm regulation” in order to survive a Second Amendment challenge.

Some of the conservative justices questioned Solicitor General Elizabeth Prelogar, defending the law on behalf of the Biden administration, and expressed skepticism about her argument that the Second Amendment permits laws that prohibit people who are not law abiding and responsible from possessing firearms, including domestic abusers.

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Due Process Demands Stricter Standards for Restraining Orders That Negate Gun Rights

Since 1994, federal law has prohibited gun possession by people who are subject to domestic violence restraining orders. Although that provision may seem like a commonsensical safeguard, the U.S. Court of Appeals for the 5th Circuit ruled last February that it was not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test prescribed by the U.S. Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen. On Tuesday, in United States v. Rahimi, the Supreme Court will consider whether the 5th Circuit was right about that.

Rahimi is primarily about the contours of the right to keep and bear arms as it was traditionally understood. But a Cato Institute brief notes that the case also raises the question of what due process requires when the government seeks to deprive someone of that right.

Under 18 USC 922(g)(8), which Congress approved as part of the Violent Crime Control and Law Enforcement Act of 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess or receive a firearm when he is subject to a court order that restrains him from “harassing, stalking, or threatening an intimate partner” or the partner’s child or from “engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury” to the partner or the partner’s child. The order must be preceded by a hearing of which the respondent “received actual notice,” and it must include either a finding that the respondent poses “a credible threat” or language that “prohibits the use, attempted use, or threatened use of physical force” that “would reasonably be expected to cause bodily injury.”

To issue an order, in other words, a judge need not conclude that the respondent actually poses a threat. To trigger the loss of gun rights, the order need only include boilerplate regarding the use of force. And as 5th Circuit Judge James C. Ho noted in his concurring opinion last February, orders that include such language are “often used as a tactical device in divorce proceedings,” “are granted to virtually all who apply,” are “a tempting target for abuse,” and in some cases have been used to disarm the victims of domestic violence, leaving them “in greater danger than before.”

Are the procedural protections specified by Section 922(g)(8) enough to guarantee the “due process” that the Fifth Amendment demands before someone can be “deprived of life, liberty, or property”? The Cato Institute, joined by the Goldwater Institute, thinks not.

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