By Tanya Metaksa
TANYA METAKSA
It’s that time of year when we reflect on what the “old” year brought and what lessons we learned. 2019 was the last year of the second decade of the twenty-first century, and in the world of gun legislation it was a continuation of the trend that started over 10 years ago. Ever present calls for more gun control with some politicians even going for confiscation by force, if needed.
2019 Elections
Only a few states hold elections in odd-numbered years and 2019 was no exception.
In May a special election was held in Pennsylvania’s 12th Congressional District (CD) where NRA-endorsed Republican Fred Keller easily beat his opponent. Keller was endorsed by President Trump.
In the November scheduled elections gun owners were dealt a setback in Virginia where the anti-gun Democrats took back the legislature with the unprecedented flow of outside money the majority being supplied by Mike Bloomberg’s gun control organizations. In New Jersey the anti-gun Democrats retained their majority, but pro-gun Republicans reclaimed several seats in the southern part of the state.
The governors’ races in Kentucky and Louisiana saw the victory of Democrats over Republicans—in Kentucky Attorney General Andy Beshear (D) just beat out incumbent Governor Matt Bevin by less than .05% while the rest of the Republican candidates for constitutional office were elected handily. In Louisiana Democrat incumbent Governor John Bel Edwards survived despite President Trump holding two rallies in Louisiana before the final runoff vote.
The bright spot was in Mississippi where all the endorsed pro-gun candidates were winners.
2020 Elections
As of Christmas 2019 there are still 15 candidates running for the Democrat nomination for President. The race began in early in the year with over two dozen Americans announcing their candidacy. Politifact announced that it was the largest number of candidates since 1972 and CBS News called it “the most diverse.”
In the early days of the Democrat debates gun control was a favorite topic. Candidates “Beto” O’Rourke and Eric Swalwell were early adopters of the strategy of pushing for gun confiscation. The more mainstream candidates such as former Vice-President Biden, Senators Bernie Sanders, Cory Booker, Amy Klobuchar, and Elizabeth Warren were all in favor of “assault weapons” bans, red flag laws and universal background checks. In November former New York city Mayor Michael Bloomberg entered the race with a purchase of $31 million in advertising. For gun owners the choice couldn’t be clearer: Re-elect Donald J. Trump.
Ballot initiatives-2020
The ballot and initiative process varies from state to state. Some states require multi-year efforts while others may require involvement of the legislature, thus what works in one state may be completely illegal in another. Several state groups have already formed to begin the process for putting gun related petitions on the 2020 ballots. Since 2020 is a Presidential election, It is not unusual for a large number of ballot measures to be proposed. After all voter participation in presidential elections is higher than in the elections held in other years.
Florida:
An initiative to ban “assault” weapons has achieved the required signatures and is awaiting a Supreme Court review.
Oregon:
Initiative Petition 18 (IP18), requiring all firearms to be locked unless being carried and firearms which are stolen or lost must be reported within 24 hours, has been filed and the proponents are gathering signatures.
Washington:
Initiative 1094, an initiative to the Legislature that would repeal the language of gun control initiative 1639, which passed in 2018, is being circulated. 300,000 signatures need to be gathered by Dec. 28, 2019 to have this proposal be put before the legislature in 2020. As this story was being published, the delivery deadline had been moved up and volunteers were scrambling to get their petitions delivered to central locations.
President Trump
Trump Impeachment: On Oct. 30, the House of Representatives voted 232-196 to adopt a resolution to formalize their impeachment inquiry and adopt rules to govern the proceedings. 2 Democrats joined all Republicans in voting against the resolution. Then on Dec. 18, the House of Representatives voted on two articles of impeachment: 230-197 to charge President Trump with abuse of power and 229-198 to charge President Trump with obstruction of power. House Speaker Nancy Pelosi has stated, “We’re not sending [the articles] tonight because it’s difficult to determine who the managers would be until we see the arena in which we will be participating,” Thus the entire proceeding has come to a standstill as 2019 comes to a close.
Federal
The year began with a new Congress being inaugurated. The Democrat controlled House of Representatives re-elected Rep. Nancy Pelosi to be Speaker and they quickly began working on gun control legislation. Both H.R. 8, federal background checks on all gun sales, including private transactions, and H.R. 1112, that turns the 3-day waiting period if the background check does not clear to an indefinite delay of purchase, were sent to the House Judiciary Committee. The House passed H.R. 8 on Feb 27. 240-190 and H.R. 1112 228-198 on Feb. 28. Both bills are still in the Senate Judiciary Committee.
On March 21 Bump stocks became classified as machine guns and all owners were required to turn them in or destroy them before that date.
In April the House and Senate passed H.R. 1222, Target Practice and Marksmanship Training Support Act, to amend Pittman-Robertson Act to expand target ranges, and it was signed by President Trump on May 10, 2019.
During the NRA Annual Meetings President Trump signed a letter to the US Senate requesting the Senate to “halt the ratification process and return the treaty to the Oval Office.” In July Secretary of the Interior David Bernhardt announced a proposed expansion plus new hunting and fishing opportunities across 1.4 million acres managed by the US Fish & Wildlife Service.
Congress returned from their Summer recess and the House Judiciary Committee passed the following bills by straight party-line votes—Democrats voting aye and Republicans voting nay. The “Extreme Risk Protection Order Act of 2019,” H.R. 1236, a bill that would establish federal grants to state, local and tribal governments for the purpose of establishing a program designated to allow such governmental entities to remove a person’s Second Amendment rights, passed by a vote of 22-16; H.R. 1186, the “Keep Americans Safe Act,” a bill to ban the sale, transfer and possession of magazines with more than 10 rounds, passed by a vote of 23-16; H.R. 2708, the “Disarm Hate Act,” this bill’s purpose is “to prevent a person who has been convicted of a misdemeanor hate crime, or received an enhanced sentence for a misdemeanor because of hate or bias in the commission, from obtaining a firearm.”
On Sept. 27 the Senate Committee on Finance issued two competing reports on NRA’s tax exempt status and the Russia connection. The Majority report stated, “Following two and a half years of endless, feverish speculation about so-called collusion that cast suspicion on any and all things Russian, the Minority report at issue attempts to paint a picture of the National Rifle Association with facts and innuendo that together actually demonstrate little to nothing…BASED ON THE REVIEWABLE EVIDENCE THE NRA’S TAX-EXEMPT STATUS IS NOT AT RISK .” While the 78-page minority report is full of innuendo about what transpired at several NRA Annual meetings as well as a trip that some NRA members of the Board including Pete Brownell (at the time NRA Vice-President) took to Russia in 2015.
Judicial
It usually takes several years for lawsuits to come to a resolution as our courts are overcrowded and the appeals process can extend cases for up to a decade. We will review the most relevant cases of 2019. These are not cases that were instituted in 2019, but cases that during 2019 had a decision in one court that could have a profound impact on Second Amendment rights in the future.
Second Amendment legislative leaders have promoted the concept of preemption for the past 50 years. Preemption legislation mandates that a state cedes to itself the legislative right to control all laws regarding firearms possession. This denies local governments, cities, towns or counties from passing ordinances that limit the ability of gun owners to travel with their legally owned firearms within state boundaries. Even though preemption statutes exist, many localities attempt to pass their own gun control laws and the remedy to this problem is a lawsuit. This year several successful lawsuits have been initiated as a result of preemption laws in Pennsylvania and Washington.
After an antisemitism attack in a synagogue the City of Pittsburgh passed several ordinances regarding firearms and magazines. In two separate lawsuits, Anderson v. City of Pittsburgh and Firearms Owners Against Crime, et al v. City of Pittsburgh, the claim was that Pittsburgh in passing three ordinances violated Pennsylvania’s preemption statute. The Allegheny Court of Common Pleas found for the plaintiffs and stated that “Despite the City’s efforts to avoid the specific preemption set forth in § 6120, they are not able to avoid the obvious intent of the Legislature to preempt this entire field.” Across the country the City of Edmonds, WA passed an ordinance in 2018 to regulate how firearms must be stored within the city.
In Bass, Seaburg, The Second Amendment Foundation and The National Rifle Association v. City of Edmonds the plaintiffs filed suit alleging that the “state of Washington has exclusive right to regulate the possession of firearms.” On Oct. 18, Judge Anita Farris ruled the ordinance “impermissibly regulates firearms in violation” of Washington’s 36-year-old preemption law. In all three of these cases the cities have stated that they would appeal.
Two interesting gun related cases have been brought to the attention of the U.S. Supreme Court (SCOTUS). After the Connecticut Supreme Court ruled 4-3 against Bushmaster/Remington in the Soto v. Bushmaster case, Remington appealed to SCOTUS for a review. On Nov. 21, SCOTUS denied Remington Arms’ petition allowing the case to continue in the Connecticut court system. This is the case that victims of the Newtown School shooting are bringing against Bushmaster/Remington. The case now hinges on whether the advertising for the rifle was in violation of a Connecticut consumer protection statute, rather than being thrown out because of the Federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers from lawsuits.
On Dec. 2, New York State Rifle & Pistol Association Inc. v. City of New York, New York was on the docket at the Supreme Court. The original case was brought by New York city residents who have “premises permits” in the City of New York. These permits as their name implies allow the gun owner to keep guns in their homes. Until 2001 New York City also issued “target licenses” that allowed gun owners to transport their firearms to shooting ranges outside the city limits. After 2001 when the only NYC-issued license were “premise permits” it became illegal for a licensed gun owner to transport his firearms to anyplace other than one of seven shooting ranges within the city limits. Violation of this ordinance could result in a year in prison.
This suit was filed in the US District Court for the Southern District of New York (the District Court) In 2013. The plaintiffs argued that the NYC ordinance violated their Second Amendment rights, the Commerce Clause and their freedom to travel. The district Court dismissed the plaintiffs claim in 2015. The plaintiffs then appealed to the U.S. Court of Appeals for the Second Circuit. In early 2018 the Second Circuit Court held that US Supreme Court decision in Heller and McDonald did not include transportation of a firearm or having a firearm outside the home and that “the City has met its burden of showing a substantial fit between the Rule and the City’s interest in promoting public safety,” thus denying the plaintiffs’ appeal. An appeal was then made to SCOTUS for consideration and on Jan. 22, the plaintiffs petition was granted.
Since Jan. 22–almost a year ago–gun control advocates, the City and State of New York have been on a frenzy to change New York city law. All these entities fear that a pro-Second Amendment majority on SCOTUS would create case law that would broaden the scope of Heller and McDonald. Thus have worked diligently to change the laws both in NYC and in New York state to force SCOTUS to stop considering this lawsuit. NYC went through the process of liberalizing their gun control ordinance to allow licensed gun owners to transport their firearms to homes and shooting ranges outside the city. Governor Andrew Cuomo, an ardent anti-gun politician, got involved and signed the New York State legislature’s new gun law that allowed licensed handgun owners to transport firearms to places they are legally permitted to have them.
After the 2019 summer of “new gun laws”, NYC then petitioned SCOTUS to rule the issue moot and cancel consideration of the lawsuit. In October SCOTUS denied that stating, “The question of mootness will be subject to further consideration at oral argument”. Thus during oral arguments before the Court, more time was devoted to “mootness” then to the underlying Second Amendment argument. We will not know how the Justices decided on “the question of mootness” until SCOTUS announces the decision on the case—which could be as late as May 2020.
Two other cases that could eventually go before SCOTUS that were active during 2019 are People of the State of Illinois, Appellant, v. Vivian Brown, Appellee and Duncan v. Becerra. In the Brown case it would be an appeal from the IL Supreme Cost. Vivian Brown owned a single shot .22 rifle that she kept in her bedroom. She did not have a Firearms Owner ID (FOID) card, that is required under Illinois law to own a firearm. Her husband from whom she was separated complained to the Sheriff about her rifle and stated that she had fired it in the home. Although the police found no evidence that the rifle had been fired the county State’s Attorney filed charges against Vivian Brown. In February 2018 the Circuit Court of the Second Judicial Circuit, Illinois, found that the requirement to have a Firearms Owner ID card in order to legally possess a firearm in the home for self-defense was unconstitutional. The state of Illinois appealed to the IL Supreme Court and in September 2019 the case was heard. A similar case was heard in November 2019 as well. The Court could decide both those cases at any time. If the IL Supreme Court upholds the Circuit Court decision the only remaining appeal by the State of Illinois would be to the US Supreme Court.
Duncan v. Becerra is a challenge to California law Section 32310, which states that persons not only cannot use magazines holding 10 or more rounds, must dispose of those they owned at the time the legislation was passed. On March 29, Judge Benitz invalidated the 10-round limitation on magazine capacity, by ruling “California Penal Code section 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.” However, as of April 5, one week later, the restrictions against magazines that hold 10 or more rounds were back in place. The Judge ruled “for those persons who have manufactured, imported, sold or bought” such magazines between March 29, 2019 and 5:00 pm April 5, 2019 the injunction remains in place. The history of this case is a history of decisions and subsequent appeals. 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, a year later, that Court affirmed Federal Judge Benitez’s suspension of the enforcement of this law. The Court also sent the case back to Judge Benitez to rule on the law itself. It is very likely that California will appeal his decision back to the full Ninth Circuit of Appeals that has historically been hostile to Second Amendment cases. The judicial history of this case may lead to an appeal to the US Supreme Court.
State Legislation
All 50 state legislatures were in session in 2019.
As the second decade of the twenty-first session came to a close “gun” legislation at the state level followed a familiar pattern to previous years. The heartland and southern states were passing more Second Amendment friendly legislation while the states along the west coast and the eastern coasts north of our nation’s capital were passing legislation that was less Second Amendment friendly. It also followed the national split between the political parties. States with Republican governors tended to favor expanding gun rights, while the opposite was true in states with Democrat governors.
All state legislatures were in session during the year but this report will only cover those states which had bills that were signed into law. Slightly over 50% of the states hold over legislation introduced in an even year, which means that the following states can vote on bills in 2020 that were introduced in both 2019 and 2020: Those states are: AK, CA, DC, DE, GA, HI, IL, IA, KS, ME, MA, MI, MN, NE, NH, NY, NC, OH, OK, PA, SC, TN, VT, WA, WV House, and WI.
Governors signed bills in twenty states that expand Second Amendment rights. In five states—Oklahoma, Kentucky, Indiana, South Dakota and North Dakota—a constitutional carry bill— either implementing or expanding the right—was passed. Oklahoma became the 16th state and then shortly thereafter Kentucky became the 17th state that allows concealed carry outside the home without a permit. In Texas a law allowing people to carry concealed handguns without a permit passed the House by an overwhelming vote of 102 to 29. The second most popular law was expanding preemption laws. Texas expanded preemption to counties as well as cities, while the Montana legislature passed an expanded preemption bill, but it was vetoed by Governor Bullock, a Democrat. The state with the most gun friendly legislative record in 2019 was Texas where Governor Abbott signed 9 new laws. Hunting laws were expanded in Georgia and Pennsylvania, while Right-to-Carry fees were reduced in Arkansas and Indiana.
In nine states Governors signed legislation into law that would restrict Second Amendment rights. Those states are California, Colorado, Connecticut, Hawaii, Nevada, New Jersey, New Mexico, New York, and Washington. The most popular restrictive law—red flag protective orders—was passed in five of those states. Restrictive storage laws with draconian penalties were passed in California, Connecticut and Delaware, while universal background check statutes were passed in Nevada, New Mexico and Washington. In New Hampshire the legislature passed a universal background check law, but Gov. Sununu vetoed it and the legislature was unable to override his veto. In Vermont and New Hampshire Republican governors vetoed legislation passed by Democrat controlled legislatures.
