By Tanya Metaksa
Latest developments— Political: Florida, New Hampshire, North Carolina, Rhode Island, Washington, Wisconsin, Wyoming; Judicial: US Supreme Court; States of Washington; Connecticut; Maryland; New Jersey; New York; Oregon; Commonwealth of Massachusetts; Commonwealth of Pennsylvania; and the District of Columbia v. Various departments of the US Government, Defense Distributed; Second Amendment Foundation, Inc.; and Conn Williamson; State Legislation: California, Illinois
115th Congress (2nd session)
H.R. 5087, The Assault Weapons Ban of 2018, has been introduced with 174 anti-gun Democrats signing on. This ban is so broad and poorly written that 99% of long guns would probably be eliminated, including the Glock18.
Judicial
The US Supreme Court: September 4, 2018 was the opening day of the Senate hearings on Judge Brett Kavanaugh’s nomination to the US Supreme Court. The Democrats and their liberal supporters decided to make it a public circus of raucous and disrespectful attacks. The most anti-gun attack came from Sen. Diane Feinstein. She stated, “Specifically, Judge Kavanaugh’s strong opposition to commonsense gun safety laws showcases how extreme his views are. Even though five circuit courts of appeals have upheld bans against assault weapons, he voted in 2011 against Washington, DC’s ban on assault weapons and high-capacity magazines. He argued that the District could not consider benefits to public safety when banning assault weapons like AR-15s. He also argued that because such weapons were in ‘common use’ they could not be banned.” In the Heller v. District of Columbia, 670 F. 3d 1244 – Court of Appeals, Dist. of Columbia Circuit 2011, he authored a dissenting opinion that stated, “Whether we apply the Heller history- and tradition-based approach or strict scrutiny or even intermediate scrutiny, DC’s ban on semi-automatic rifles fails to pass constitutional muster. DC’s registration requirement is likewise unconstitutional.
States of Washington; Connecticut; Maryland; New Jersey; New York; Oregon; Commonwealth of Massachusetts; Commonwealth of Pennsylvania; and the District of Columbia v. Various department of the US Government, Defense Distributed; Second Amendment Foundation, Inc.; and Conn Williamson: In late August 2018 the judge issued an injunction against Defense Distributed stopping the publication of the blueprints. This lawsuit is a direct result of the decision by the Department of State in the Defense Distributed case listed below. The Attorney Generals of the above listed states sought a restraining order to stop Defense Distributed from making the blueprints for firearms available to the general public. s.m Judge Robert S. Lasnik of United States District Court ruled immediately after the suit was filed that those states had established “a likelihood of irreparable harm” he added there were “serious First Amendment issues” that would need to be worked out later in court, but that for the moment, there should be “no posting of instructions of how to produce 3-D guns on the internet.” Defense Distributed removed the website from the internet, but in the ensuing time others have published the blueprints
Young v. State of Hawaii: George Young, a Hawaii native who served in the US Army and was a law enforcement officer, was applied and was turned down for concealed carry and open carry licenses by Hawaii County filed a federal lawsuit challenging the state’s laws pertaining to carrying firearms. His complaint was dismissed by in the US District Court for the District of Hawaii. He appealed to the US Court of Appeals for the Ninth Circuit. On July 25, 2018 The Ninth Circuit in a 2-1 decision reversed the District Court dismissal stating, “The Second Amendment does protect a right to carry a firearm for self-defense
Thyng, the Second Amendment Foundation and National Rifle Association of America v. City of Seattle: The City of Seattle passed an ordinance requiring gun owners who have their firearms stolen, lost or misplaced to 1.)report the gun disappearance with a personal visit to the police station, 2.)The gun owner could be fined up to $500 for failure to store the firearm responsibly, 3.)If a minor or prohibited person touches the missing firearm, the original owner could be fined $1,000, 4.)If an injury, death or crime is committed with the missing firearm, the original owner could be fined up to $10,000. The suit maintains that the City of Seattle is prohibited from adopting gun regulations that exceed state laws—preemption.
Defense Distributed, et. al v. US Department of State: In 2013 Cody Wilson made a fully 3-D printed handgun and then took it to a gun range in Texas where he fired a .380 caliber bullet. The gun functioned perfectly, so he drove back to Austin and uploaded the instructions for the gun to his website, Defcad.com.
It didn’t take too long for people to download those blueprints. According to www.wired.com, those instructions were downloaded more the 100,000 times in the days following the firing of his handgun. Within a week the US Department of State sent him a letter saying, “Until the Department provides Defense Distributed with the final CJ determinations, Defense Distributed should treat the above technical data as ITAR-controlled. This means that all such data should be removed from public access immediately.” ITAR is the International Traffic in Arms Regulation that defines the US Munitions List (USML) which was created by the State Department.
Although Wilson removed the offending material from his website, its printable instruction for manufacturing guns had already spread to websites across the globe including Pirate Bay and other underground web sites. In the five intervening years those blueprints have evolved and multiplied on websites across the internet.
On May 6, 2015 Defense Distributed and Second Amendment Foundation, Inc. v. US Department of State, et al was filed in the US District Court for the Western District of Texas. The principle argument of the case was that the State Department ban on publishing the blueprints constituted prior restraint of a First Amendment right. In September 2016 the Fifth Circuit Court of Appeals ruled 2-1 against Defense Distributed. The decision read:
Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.
However, the dissenting Judge, Edith Jones, wrote her own opinion:
In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, “The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis….” The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data.
In November 2016 the plaintiffs filed a petition to the Fifth Circuit Court for an en banc rehearing of the injunction request that had been denied by the three judge panel. That petition was rejected by a 9-5 vote in March 2017. The plaintiffs then filed a petition for a hearing before the US Supreme Court (SCOTUS). In January 2018 SCOTUS refused to take the case.
In May 2018 the Trump administration published new regulations reforming ITAR regulations. The Trump proposal would change the regulations in two ways. First, firearms that were .50 caliber or less and were not fully automatic would no longer be included in the USML and thus would no longer be covered by ITAR export controls. Second, the items no longer on the USML would be controlled by the Department of Commerce instead of the State Department.
As a result of these proposed changes, the State Department revisited the Defense Distributed case. Since the firearms that were considered in the original State Department letter were no longer covered by ITAR, the plaintiffs and anyone else may publish 3D blueprints of such firearms. However, publishing 3D blueprints of firearms that are still under ITAR is still prohibited.
Duncan v. Becerra, challenges Section 32310, which states that persons not only cannot use magazines holding 10 or more rounds, but cannot “keep property they lawfully acquired.” On June 13, 2017 a motion for a preliminary injunction was filed and on June 29 Federal Judge Benitez, granted the injunction stating, “If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property. That is a choice they should not have to make. Not on this record.” The decision was appealed to the United State Court of Appeals for the Ninth Circuit. On July 17, 2018 that Court affirmed the decision of Federal Judge Benitez that the injunction against the state of California’s plan to ban the possession of magazines with a capacity greater than 10 rounds. California is can still appeal this ruling to the full Ninth Circuit who could overrule the District Court and then the case might be before the US Supreme Court.
SAF, Calguns Foundation, Firearms Policy Coalition, Firearms Policy Foundation v. California: During the week of June 25-30, the statutory registration deadline for firearms registration, the California DOJ’s Firearms Application Reporting System (CFARS) was largely inaccessible to the public. The lawsuit seeks to prevent the CA Department of Justice from enforcing the law.
Village of Deerfield, IL: [1] The Village of Deerfield, IL passed Ordinance 0-18-06 on April 2, 2018, banning “assault weapons”—a term defined by the ordinance. The Second Amendment Foundation, the Illinois State Rifle Association and Daniel D. Easterly filed suit in the Circuit Court of the Nineteenth Judicial Circuit of Illinois. The basis of this suit is that the issuance of such an ordinance is preempted under current Illinois law. [2] Guns Save Lives and The NRA Institute for Legislative Action have announced another suit. A temporary restraining order issued by the Nineteenth Judicial Circuit Court for Lake County, IL has temporarily stopped the Village of Deerfield from enforcing the ordinance.
National Shooting Sports Foundation Inc. v. State of California: Only in California can the legislature pass a law requiring the sale of an item that is impossible to manufacture. In 2007 the legislature passed a law decreeing that only guns could be sold that (1)had the make, model and serial number imprinted in two or more places internally and (2) were required to also imprint this information on each cartridge case that was fired. Any new gun that failed to meet these requirement was deemed “unsafe.” The National Shooting Sports Foundation (NSSF) and the Sporting Arms and Ammunition Manufacturers Institute (SAAMI) brought suit to stop enforcement of the law. The plaintiffs alleged that no semiautomatic pistol could be manufactured to meet these requirements. In 2017 the California Court of Appeals directed the plaintiffs to present evidence of the impossibility of following the requirements, because a section of California law “never requires impossibilities.” In late June, however, a panel of the California Supreme Court ruled that using the “impossibility” defense could not be used to invalidate the 2007 law.
Boulder, CO Ordinance 8245: Two lawsuits have been filed since the City of Boulder CO banned the ownership of “assault” weapons, high capacity magazines and raised the minimum age for firearms possession to 21. Caldara et al v. City of Boulder and Chambers, et.al v. City of Boulder.
Political: Primary Elections & Initiatives
Grades are courtesy of NRA-PVF
New Hampshire: The primary elections are being held Sept. 11. Statewide Executive Council: Joseph Kenney (R) A. State Senate: District 3-Jeb Bradley (R) A; District 12-Kevin Award (R) A.
Rhode Island: The primary elections are being held Sept. 12. Two gubernatorial candidate are rated A-Allen Fung (R) and Patricia Morgan (R). State Senate: District 7: Frank Ciccone (D) A+; District 21: Gordon Rogers (R) AQ; District 22-Stephen Archambault (D) A+; District 29-Michael McCaffrey (D) A+. State House: District 7-Daniel McKiernan (D) A-; District 13-Ramon Perez (D) A-; District 28-George Nardone (R) AQ & Scott Guthrie (D) A; District 47-Cale Keable (D) A+
Florida: The Primary elections were held Aug. 28. Endorsed winning primary candidates: Governor- Ron DeSantis (R) A; Attorney General-Ashley Moody (R) A; Comissioner of Agriculture: Matt Caldwell (R) A+ Congressional Candidates: District 1-Matt Gaetz (R); District 3-Ted Yoho; District 7-Mike Miller (R); District 17-Greg Steube (R); State Senate: District 20-Tom Lee; State House: District 2-Alex Andrade; District 10-Chuck Brannan; District 11-Cord Byrd; District 15-Wyman Duggan; District 22-Charlie Stone; District 37-Ardian Zika; District 47-Stockton Reeves; District 64-James Grant; State Attorney District 20-Amira Fox; Sheriff Jefferson County-Mac McNeill.
North Carolina: A Right to Hunt and Fish Constitutional Amendment will be on the November ballot.
Oregon: Initiative Petition IP43, banning so-called “assault weapons” and high capacity magazines, was the subject of a Oregon Supreme Court challenge filed on June 14, 2018 by the Oregon Hunters Association and the National Rifle Association. The Oregon Supreme Court ruled on June 27 that such terms as “assault weapons” and “large capacity magazines” were misleading and that the Oregon Attorney General had five days in which to modify the title and resubmit. The July 6, 2018 deadline for getting 88,000 signatures has past thus IP43 will not be on the 2018 November Ballot. Promoters for Initiative Petition IP44, mandating that all firearms be locked with a trigger-locking device and firearms owners would be subject felony convictions if the firearm was stolen or a minor gained access to the firearm, have given up their effort to get it on the 2018 ballot.
Washington: SAF & NRA won a short-lived victory to get the initiative I-1639 off the ballot, but the Washington Supreme Court overturned the Turston County judges’ decision to block the initiative. I-1636, if passed, would raise the age of purchase of firearms to 21, mandate training, add stiffer background checks with waiting periods prior to getting the firearm. And require all guns be secured in the home.
Wyoming: The Primary elections were held Aug. 21: Endorsed candidate who won: US Senator: John Barrasso (R); US House at Large: Liz Cheney; Office of the Treasurer-Curt E. Meier; State Senate: District 1-Ogden Driskill; District 3- Cheri E. Steinmetz; District 5-Lynn Hutchings; District 21- Bo Biteman; State House: District 7-Sue Wilson; District 10-John C. Eklund; District 12-Clarence L. Styvar; District 19-Danny Eyre; District 29-Mark S. Kinner; District 30-Mark Jennings; District 33-Jim R. Allen; District 37-Steve M. Harshman; District 52-William H. Pownall; District 56-Jerry A. Obermueller; District 57-Chuck Gray
State Legislation
Montana, Nevada, North Dakota, & Texas were not in session this year. The following states have adjourned: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming.
California:
The California legislature has adjourned. For those hunting in California this year a quick reference guide is available so that hunters keep in mind the non-lead ammunition rules in effect. The guide can be found at http://michellawyers.com/wp-content/uploads/2015/04/Phased-Implementation-Lead-Ban-Compliance-Table.pdf. The following anti-gun, anti-freedom bills were passed the in final days of the legislative session: AB2103, adding an additional four (4) hours of training to the already mandated 16 hours of training for a concealed carry permit; AB2888, expanding the persons eligible to file gun violence restraining orders; SB221, prohibiting the sale of firearms in the Cow Palace after Jan. 1, 2020; SB1100, raising the minimum age to purchase a long gun to 21 years old; SB1177, limiting any firearms purchase to one per every 30-days; and SB1487, prohibiting the possession of certain Aftrican species of wildlife. Governor Brown has not signed any of these bills as of Labor Day.
Illinois:
Gov. Bruce Rauner signed HB4855, allowing FOID card holders a 60-day graced period for renewing their card; SB3256, creating a new state registry of firearms transfers, and HB2354, allowing family or law enforcement to petition a court to seize a person’s gun without due process. He announced that he would veto SB337, another dealer licensing bill. HB1468, requiring a 72-hour waiting period prior to the delivery of an “assault weapon” (new definitions) was vetoed by Gov. Rauner. The following bills have been re-referred to Rules Committee: HB1465, infringing on Second Amendment rights banning firearms, and magazines, and the ability of young adults to purchase firearms; HB1467, repealing the firearm preemption law in IL; House Amendment 1 to HB1470 to institute a one-handgun-a-month purchase limitation;. Senate Amendment 1 to SB2343, increasing the penalty to a non-probational felony for possessing, manufacturing, carrying certain firearms accessories and increasing the penalty even further when these accessories are attached to a firearm; SB2314, repealing the Illinois firearm preemption statutes; and HB1469, a bill dealing with sexual exploitation of children that was amended with a ban on magazines with a capacity of more than 10 rounds in the House Judiciary Committee..
Massachusetts:
HB4517, is the new number for an omnibus anti-Second Amendment bill It includes both HB3610, allowing firearms to be seized without due process, and SB2376, requiring “electronic” stun guns to fall under the current firearms laws has been passed in the House.
Michigan:
A Constitutional Carry group of bills: HB4416, 4417, 4418 and 4419. HB4554, removing the current pistol registration requirement, have passed the House and are awaiting Senate action. SB0527, guaranteeing that persons who become foster parents do not lose their Second Amendment rights, and SB366, allowing provisional Right-to-Carry permits for those persons 18-20 years of age have passed the Senate.
Mississippi:
In Harrison County Sheriff Tony Peterson has posted “firearms prohibited” signs at the Harrison County Courthouse and the Attorney General sent him a letter saying the signs are illegal and must be removed within 30 days. Sheriff Peterson has acknowledged the letter and said Sheriff’s Office attorneys are reviewing it.
New Hampshire:
HB1749, A bill seeking redress for towns that prohibit or regulate firearms in violation of the preemption statute has been introduced, has been referred to interim study for examination.
New Jersey:
Gov. Phil Murphy signed an executive order to ban bear hunting on public land.
New York:
Gov. Cuomo is leading a charge against any businesses that work with the NRA.
North Carolina:
SB677, adding a Right to Hunt and Fish to the North Carolina Constitution, passed the Senate on a 44-4 vote. On June 25 the House of Representative passed with an amendment and the Senate concurred. The Constitutional Amendment will be on the November 2018 ballot.
Ohio:
On May 22 the House Federalism and Interstate Relations Committee passed Sub HB228, expanding the locations where a person has no duty to retreat before using force under both civil and criminal law, and modifying the Concealed Handgun Licensing Law regarding a licensee’s duty to keep the licensee’s hands in plain sight, and penalties. The House passed HB132, a substitute for HB142, that eliminated the requirement that a Right-to-Carry permittee must inform a police officer that he/she is carrying, and HB233, a bill to change the penalty for a person with a Right-to-Carry permit or a military member who is carrying a concealed firearms where it is prohibited to a possible misdemeanor.
Utah:
The Utah School Safety Commission passed policy recommendations to make Utah schools safer: universal background checks, mandatory firearms storage, waiting periods, and removing firearms from persons without due process.
Virgin Islands:
According to Fox News the Governor of US Virgin Islands (USVI) signed an executive order in September 2017 giving the adjutant general of the National Guard the authority “to seize arms, ammunition, explosives and incendiary material and other property required.” The Chairman of the House Natural Resources Committee, Rob Bishop (R-UT) and the Chairman of the House Judiciary Committee, Bob Goodlatte sent a letter to USVI Governor Kenneth E. Mapp inquiring about the order to seize weapons from citizens.
Washington:
The Seattle City Council passed an ordinance that would require that if a firearm theft is not reported to the police within 24 hours from the time the victim “should have known” the victim would be subject to a fine. See above Thyng, et al. v. City of Seattle
