Tag: 2nd amendment

It’s Hard To See How the 9th Circuit Can Manage To Uphold California’s ‘Assault Weapon’ Ban

Over the weekend, the U.S. Court of Appeals for the 9th Circuit stayed a permanent injunction against California’s “assault weapon” ban that a federal judge issued on October 19. That means the law, originally enacted in 1989 and subsequently broadened, will remain in effect while the appeals court hears the state’s appeal in Miller v. Bonta. But if the 9th Circuit carefully considers U.S. District Judge Roger Benitez’s reasoning in issuing the injunction, it is hard to see how the appeals court can conclude that California’s ban is consistent with the Supreme Court’s Second Amendment precedents.

Benitez had previously ruled that the “assault weapon” ban was unconstitutional. In August 2022, the 9th Circuit vacated that June 2021 decision and instructed Benitez to reconsider the case in light of New York State Rifle & Pistol Association v. Bruen, the June 2022 case in which the Supreme Court concluded that New York had violated the Second Amendment by requiring residents to show “proper cause” before they were allowed to carry handguns in public for self-defense.

Bruen explicitly rejected the “interest-balancing” tests that federal courts had commonly used to uphold gun control laws. It instead prescribed a historical test aimed at determining whether a given regulation is consistent with the right to keep and bear arms as it was traditionally understood. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas wrote for the majority. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.'”

Applying that test to California’s “assault weapon” ban, Benitez first considers whether the targeted firearms are “in common use,” meaning they are “typically possessed by law-abiding citizens for lawful purposes.” Beginning with its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court has said weapons fitting that description are covered by the Second Amendment.

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A Montana Case Tests the Constitutionality of the Gun-Free School Zones Act

Last summer, Gabriel Metcalf alarmed passersby in Billings, Montana, by “pacing his front lawn holding a rifle.” When local police approached him, Metcalf said he was protecting himself from a neighbor he thought was stalking him. The officers conceded that Metcalf was not violating any state laws but asked him to cut it out. Because Metcalf was not inclined to follow their advice, the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) got involved. Noting that Metcalf lived across the street from an elementary school and admitted walking on the sidewalk near his home with the rifle, the ATF charged him with violating the federal Gun-Free School Zones Act.

That law, 18 USC 922(q), makes it a felony, punishable by up to five years in prison, to possess a firearm within 1,000 feet of a school. Since schools are scattered throughout communities across the country, those gun-free zones cover a lot of territory—including the sidewalk outside Metcalf’s home. But in seeking dismissal of Metcalf’s indictment, his public defender, Russell Hart, argues that his conduct is not covered by the statute and, in any case, is protected by the Second Amendment. The latter argument seems promising in light of New York State Rifle & Pistol Association v. Bruen, the 2022 decision in which the U.S. Supreme Court upheld the right to publicly carry firearms for self-defense.

In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its power to regulate interstate commerce when it passed the original version of the Gun-Free School Zones Act in 1990. “The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce,” Chief Justice William Rehnquist noted in the majority opinion. Congress responded in 1995 by amending the law to specify that it applies only to “a firearm that has moved in or that otherwise affects interstate or foreign commerce”—boilerplate that had no practical effect on the statute’s broad reach.

The law includes several exceptions. It does not cover unloaded guns kept in “a locked container” or “a locked firearms rack that is on a motor vehicle.” It does not apply to guns “on private property” that is “not part of school grounds.” And it does not allow prosecution “if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.”

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Don’t Blame the Maine Shootings on ‘Woefully Weak’ Gun Laws

Five months before an Army Reserve sergeant killed 18 people at a bowling alley and a bar in Lewiston, Maine, his relatives told police he was increasingly paranoid, erroneously complaining that people were describing him as a pedophile. Two months later, he underwent a psychiatric evaluation after service members who were training with him at West Point reported that he was behaving erratically, and last month he told a friend he was “going to shoot up the drill center” at his base in Saco, Maine.

The fact that the 40-year-old petroleum supply specialist nevertheless managed to commit his horrifying crimes last week, after which he killed himself, underlines the challenge of identifying and thwarting mass murderers. But contrary to what some critics claimed, the problem was not Maine’s “woefully weak” gun regulations.

On its face, Maine’s “yellow flag” law, enacted in 2019, could have made a crucial difference in this case. It authorizes police, after taking someone into “protective custody” based on probable cause to believe he is “mentally ill” and poses a threat to himself or others, to ask a “medical practitioner” for an assessment of whether the detainee “presents a likelihood of foreseeable harm.”

If the medical practitioner thinks so, police “shall” seek a court order temporarily barring the individual from obtaining or possessing firearms. The respondent is entitled to a hearing within 14 days, after which the order can be extended for up to a year based on “clear and convincing evidence” of a threat.

Since the Maine killer was released after his psychiatric evaluation at West Point’s Keller Army Community Hospital, where he stayed for two weeks, he apparently did not meet the state’s criteria for involuntary commitment. But that needn’t have been the end of the matter.

After the shootings, neighbors in Bowdoin said the sergeant’s psychological problems were “pretty well-known.” The Maine Information and Analysis Center had alerted police about his “recently reported mental health issues,” including “hearing voices and threats to shoot up the National Guard Base in Saco, ME.”

The local sheriff’s office had received disturbing reports from “increasingly concerned” relatives, a friend, and the Saco base. But its investigation did not result in an assessment or a court order, possibly because police thought his relatives had “a way to secure his weapons.”

Gun control activists complained that Maine’s “yellow flag” law is harder to use than the “red flag” laws that 21 states have enacted, which have fewer and weaker procedural protections. That criticism seems doubly misguided.

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Second Amendment Win: California’s ‘Assault Weapons’ Ban Has Been Thrown Out

Second Amendment supporters may want to remember the saying, “As California Goes, so Goes the Nation,” after a federal judge overturned the Golden State’s three-decade-old ban on so-called “assault weapons” on Thursday. U.S. District Judge Roger Benitez, of San Diego, found no equivalent in early American history and ruled that the ban was therefore unconstitutional.

The judge further ruled that the semiautomatic rifle – known in the industry as “modern sporting rifles” – such as the AR-15 are common household items used for self-defense by millions of law-abiding citizens, who should not have their Second Amendment rights abridged by a state – even as the firearms have been misused by others in crimes including mass shootings.

“Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law-abiding responsible citizens are necessary,” Benitez wrote in his ruling. “To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes.”

Benitez, who previously overturned the ban, added, “The State of California posits that its ‘assault weapon’ ban, the law challenged here, promotes an important public interest of disarming some mass shooters even though it makes criminals of law-abiding residents who insist on acquiring these firearms for self-defense. Nevertheless, more than that is required to uphold a ban.”

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NY State Bill Would Require Background Checks to Buy 3D Printers

New York lawmakers are looking at requiring consumers to first go through a criminal history background check before they can buy certain 3D printers. 

The legislation is designed to crack down on potential misuse of 3D printers capable of manufacturing gun parts. The proposal comes from Democratic Assemblymember Jenifer Rajkumar, who introduced the bill on Friday. 

Under the legislation, 3D printer retailers would need to request a background check from New York’s criminal justice services when a customer tries to make a purchase. Criminal justice services would then need to notify the retailer if the customer has received a felony or serious offense that would make them ineligible to possess a firearm. 

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Supreme Court Allows Biden Admin to Continue Enforcing Ghost Gun Regulations

On Monday, the Supreme Court vacated an order from a lower court, allowing the Biden administration’s new regulations on ghost guns to take effect.

A Texas-based judge ruled against President Joe Biden’s new rules on ghost guns, firearms without serial numbers. However, a request to vacate the order was filed to Justice Samuel Alito and referred to the full court, which ruled in favor of vacating the order.

Alito issued an order on October 6, giving ghost gun manufacturers Blackhawk Manufacturing Group and Defense Distributed until Wednesday to provide a better reason as to why they should not have their firearms regulated the same way as other gun manufacturers.

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New gun control laws sweep three blue states

Starting in October, three blue states will put into effect a slew of new gun reform legislation. Lawsuits against Colorado and Maryland have arisen, while Connecticut has steered clear of any new legal trouble.

Below is a breakdown of the legislation that went into effect on Oct. 1 in Colorado, Maryland, and Connecticut.

Once considered a purple political state, Colorado has been passing gun control legislation at a fast-moving pace. Two laws, passed by the legislature in April, will instill a three-day waiting period for firearm purchases and make the path easier for gun violence survivors and victims to sue manufacturers and dealers.

House Bill 23-1219 imposes a three-day waiting period and a background check for those who seek to purchase a firearm. Customers previously could purchase a gun and receive it the same day. If gun stores violate the new regulations, they could be charged a $500 fine for a first offense and up to a $5,000 fine for a second offense.

A gun rights group filed a lawsuit challenging the new timeline requirements, calling the waiting period “unconstitutional.” The Rocky Mountain Gun Owners initially filed a lawsuit against the law after the Democratic-led legislature passed the bill in April, but the group withdrew its suit after a judge ruled there was no standing.

“We will not bow down to unconstitutional infringements on our Second Amendment freedoms,” Rocky Mountain Gun Owners Executive Director Taylor Rhodes said in a statement last week.

“We’ve reloaded our legal arsenal and are ready to take on this absurd waiting period that does nothing but trample on the rights of peaceable gun owners. We will not let tyranny prevail.”

The group cited the Supreme Court ruling from last year, New York State Rifle & Pistol Association v. Bruen, saying the ruling invalidates “the lower court rulings’ justification for gun control.”

Senate Bill 23-168 makes it easier for Coloradans who are victims of gun violence to file lawsuits against gun manufacturers and sellers by removing the requirement to pay the defendant’s legal bills for those who lose the lawsuit. Similar laws have been enacted in New York and New Jersey and are also facing legal troubles.

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Feds Threaten To Make It Harder For Medical Marijuana Patients To Get State Gun Permits In Arkansas

Arkansas’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) says.

The Arkansas law took effect in August, clarifying that a person’s status as a qualified patient in the state cannot be used “in determining whether an applicant is eligible to be issued a license to carry a concealed handgun.”

The policy change has apparently attracted the critical attention of federal officials at the Justice Department, The Arkansas Democrat-Gazette first reported. A letter sent by Marianna Mitchem, chief of ATF’s Firearms and Explosives Industry Division, to the operations director for the Division of Arkansas Crime Information this week said there are “public safety concerns” with the law.

Mitchem advised the state official that Arkansas has been previously notified that a condition of its alternative gun licensing scheme, which allows gun buyers to receive approval by the state without going through a federal background check, is that firearms cannot be purchased by a “controlled substance user.” In the eyes of the federal government, that includes medical cannabis patients.

The letter contained a veiled threat, stating that if the state department did not answer two specific questions, it would warrant a reevaluation of Arkansas’s alternative gun permit policy.

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Connecticut enacts its most sweeping gun control law since the Sandy Hook shooting

Connecticut’s most wide-ranging gun control measure since the 2013 law enacted after the Sandy Hook Elementary School shooting takes effect Sunday, with proponents vowing to pursue more gun legislation despite legal challenges happening across the country.

The new law, signed by Democratic Gov. Ned Lamont in June, bans the open carrying of firearms and prohibits the sale of more than three handguns within 30 days to any one person, with some exceptions for instructors and others.

“We will not take a break and we cannot stop now, and we will continue to pass life-saving laws until we end gun violence in Connecticut. Our lives depend on it,” said Jeremy Stein, executive director of Connecticut Against Gun Violence.

Immediately after it was passed, the law was challenged in court by gun rights supporters. Connecticut’s landmark 2013 gun law, passed in response to the 2012 elementary school shooting in Newtown that claimed 26 lives, is also being contested in court.

Besides Connecticut, which has some of the strictest gun laws in the country, other politically liberal-leaning states including California, Washington, Colorado and Maryland also have passed gun laws this year that face legal challenges. They come in the wake of the U.S. Supreme Court last year expanding gun rights.

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