By Tanya Metaksa
What’s New—Federal: Pro-gun Senators send letter to Treasury Secretary, Chairman of the Federal Reserve and Small Business Administration regarding banks and discrimination against “politically disfavored businesses”; Anti-gun state Attorney Generals send letter to Senate leaders; S. 3254;
COVID Judicial:
Virginia:
Gov. Ralph Northam’s Executive Order No. 61 will allow indoor shooting ranges to reopen at 12.00 am May 15 with certain COVID-19 restrictions.
Florida:
Cliff Christophe Maloney v. FL Department of Agriculture and Consumer Services: Cliff Maloney, President of Young Americas for Liberty, filed a lawsuit against Commissioner Nikki Fried claiming she is depriving Floridians of their Second Amendment rights;
Massachusetts:
Massachusetts-McCarthy, et al. v. Baker, et al: US District Judge Douglas P. Woodluck Issues injunction against ban on firearms dealers selling firearms and ammunition imposed by state executive orders.
The following states have officially not listed firearms dealers as essential services or do not have state law that considers gun stores exempt from emergency closures: California, Massachusetts, New York, Oregon, and Washington.
The Second Amendment meets COVID-19
Pro-gun Senators send letter:
13 Pro-gun Senators sent a letter to Treasury Secretary Mnuchin, Chairman of the Federal Reserve Jerome H. Powell and Small Business Administration Jovita Carranza regarding banks and discrimination against “politically disfavored businesses”. The Senators’ concern was that banks which are administering the new SBA loan programs that were initiated under the Paycheck Protection Program and other SBA loan programs do not illegally discriminate against lawful firearm businesses. Under the Obama Administration’s FDIC “Operation Choke Point” there was a concerted effort to limit federally licensed firearms dealers’ ability to get financing to run their businesses. Since 2019 when the Democrats took control of the House of Representatives anti-gun Representatives have indicated a growing support for banks to discriminate against lawful businesses such as firearms dealers and ranges.
Trump Administration
Army Corps of Engineers:
Although the President Trump is busy with the COVID-19 crisis, his administration is still moving forward on firearms issues. A proposed rule to allow visitors to possess and transport firearms on ACE water resource development project lands and waters, provided they are not prohibited by law from possessing firearms and the possession or transportation is otherwise in compliance with applicable laws has been proposed for the Army Corps of Engineers.
California:
Gun stores/ranges have still not been determined by Gov. Gavin Newsom to be “essential service” and thus are to be closed with the known exception of Culver City, Los Angeles County, and Shasta County. There is a lawsuit against Gov. Newsom that also includes the City of Los Angeles and the City of Burbank. Additionally, another lawsuit has been filed against jurisdictions in Northern California.
Maine-Portland:
On April 14 the city of Portland adopted an Order which stated, “Gun shops shall not be considered an essential business or service within the City of Portland.” This order directly conflicted with the Maine list of essential businesses and Maine’s preemption law. On April 25 after concerned Portland citizens lobbied the Portland City Council members and the Mayor, a new amendment was passed that remove the unconstitutional classification of guns shops.
Massachusetts:
See COVID-19 lawsuits
New Mexico:
Although Gov. Michelle Lujan Grisham extended her emergency executive stay-at-home order until Friday, May 15, she amended the order to allow gun stores and shooting ranges to operate “by appointment order.”
Judicial
COVID-19 lawsuits
Massachusetts-McCarthy, et al. v. Baker, et al:
On May 7 after hearing the parties involved US District Court Judge Douglas P. Woodlock issued an injunction against the bans on the operation of firearm and ammunition retailers imposed by Massachusetts Governor Charlie Baker and others. ORDERED: 1. Firearms dealers licensed pursuant to Mass. Gen. L. ch. 140, § 122 shall be permitted to conduct sales of firearms
and other goods, and may sell ammunition if licensed pursuant to Mass. Gen. L. ch. 140, § 122B, by appointment only, with not more than four appointments per hour. Such firearms dealers are limited to operating only during the period 9 a.m. and 9 p.m. daily, subject to any further land use limitations imposed by the local government in the jurisdiction where the premises are located as are currently in force.
The drama began on March 24, 2020 Governor Baker designated various businesses as “essential” he did not include firearms and ammunition retailers. On March 31, Gov. Baker revised the list to include workers “supporting the operation of firearm or ammunition product manufacturers, importers, and distributors.”
On April 2, 2020 Jamison Gagnon, Commissioner of the Department of Criminal Justice Information Services, issued a directive that he would assist the enforcement of Gov. Baker’s COVID-19 Order No. 19 by targeting firearms dealers with audits of firearms sales.
In response, on April 9, the Second Amendment Foundation (SAF), Commonwealth Second Amendment (Comm2A) and Firearms Policy Coalition (FPC) filed a lawsuit in the U.S. District Court for the District of Massachusetts. Shortly thereafter the NRA and Massachusetts Gun Owners Action League filed an amicus brief that “challenges the Defendants’ acts of eliminating all lawful channels of access to constitutionally protected arms and ammunition by mandating the closure of all businesses that sell firearms and ammunition to the consumer public.
Cliff Christopher Maloney v. FL Department of Agriculture and Consumer Services:
As promised Cliff Maloney, president of Young Americas for Liberty, filed a lawsuit against Commissioner Nikki Fried claiming she is depriving Floridians of their Second Amendment rights.
On April 21, Florida Attorney General Ashley Moody wrote a letter to Fried saying: “It is imperative that government continue to take actions that allow Floridians to feel safe and secure in these uncertain times, protect Floridians’ constitutional rights, and avoid potential costly litigation that can easily be avoided. I request that you resume taking online applications, confirm that your agency is processing concealed carry permits and end any delay approving applications going forward.”
When the Florida concealed carry statute was implemented the legislators wanted to ensure that the implementation of the license to carry statute was not within the state’s criminal justice system, therefore it was assigned to the Department of Agriculture and Consumer Services. However, in 2018 the voters of Florida elected Democrat Nikki Fried to be the Agriculture Commissioner. She has turned out to be an avowed anti-gun political hack that sees this position as a stepping stone to bigger state positions. Using the COVID-19 crisis as an excuse Fried has delayed the processing of applications.
New Jersey-Kashinsky v. Murphy:
On April 1, Gurbir S. Grewal, the Attorney General of New Jersey, wrote a letter that stated, “Colonel (Patrick J.) Callahan, in his capacity as State Director of Emergency Management, issued Administrative Order No. 2020-6 (“A.O. 2020-6”), which supplements Governor Murphy’s Executive Order No. 107. See Exhibit A. A.O. 2020-6 adds Federal Firearms Licensees (“FFLs”) to the list of essential retail businesses that may remain open, subject to specified requirements, during the ongoing public health emergency presented by the spread of SARS-CoV-2 — the “coronavirus.” Thus gun stores can remain open as long as they comply with the the COVID-19 guidelines for remaining in business.A comprehensive article written pre-settlement was published in Reason.com by Eugene Volokh.
Days earlier, on March 26 a motion for an injunction was filed in federal court in New Jersey as a result of the closure by Governor Philip D. Murphy and State Director of Emergency Management and Superintendent of the New Jersey State Police Patrick J. Callahan of “any and all means law-abiding private citizens to obtain firearms in New Jersey.” The complaint said this is not a situation where all retail establishments have been closed as the State has permitted retail sellers of other products such as alcohol, marijuana and office supplies to remain in business. Gov. Murphy, by executive order on March 21, listed those business that were deemed “essential” and firearms dealers were not included in the lengthy list of essential service.
Mississippi-Dana Criswell v. Chokwe Antar Lumumba :
Mayor Lumumba in a YouTube video announced he was suspending the right to open carry a firearms in Jackson, MS. Dana Criswell, a member of the MS legislator and a federally licensed firearms dealer, sued Mayor Lumumba in the US District Court for the Southern District of Mississippi on constitutional grounds. Before the suit was heard Mayor Lumumba’s unconstitutional order expired on May 1 and was not reinstated.
The Jackson City Council had voted unanimously to oppose this order and was joined in opposition by many MI state lawmakers, MI Agriculture Commissioner Andy Gipson, MI Attorney General Lynn Fitch, and the U.S. Attorney for the U.S. District for the Southern District of Mississippi Mike Hurst.
California-California Governor Gavin Newsom signed an executive order shutting down many businesses, but he left the decision on firearms retailers and gun ranges up local officials: Sheriffs and Public Health Officers. In doing that there has been a great deal of misinformation, changing of decisions by officials and general confusion. And a result several lawsuits have been initiated to first institute temporary restraining orders (TRO) to stop the closures and if the TRO is not initiated, then to have a full blown court case that could take years. In Los Angeles this comedy of errors was played out during the four weeks from March 4 to April 6 when the Brandy, et al. v. Los Angeles Sheriff Alex Villanueva et. al was litigated concerning a TRO. Unfortunately, the United States District Court on April 6 denied the application for a TRO.
In Northern California another lawsuit, Altman, et al, v Santa Clara County, et al, was filed on March 31. A TRO in this case was denied on April 10 and scheduling for a preliminary injunction will be held on May 13.
A pre-litigation demand was also sent to Culver City, CA in late March and on April 2 the Culver City Council voted unanimously to allow firearm retailers to remain open.
A lawsuit, McDougall, et al. v. County of Ventura, CA, et al., was filed on April 14.
A pre-litigation demand was sent to California Attorney General Xavier Becerra regarding unlawful firearm and ammunition delays on April 14.
Georgia-Walters v. Kemp:
On March 14, Judge Keith Wood, a Probate Judge in Cherokee County, Georgia declared that Weapons Carry Licenses “are deemed non-essential and will not be accepted during the pendency of the judicial emergency.” As a result the Second Amendment Foundation, the Firearms Policy Coalition and Lisa Walters filed a complaint on April 16 for injunctive and declaratory relief based on constitutional rights.
New Mexico-Aragon v. Grisham:
In response to the COVID-19 pandemic Gov. Grisham closed gun stores and shooting ranges. As a result, on April 10, the National Rifle Association (NRA), The Second Amendment Foundation, New Mexico Shooting Sports Association, the Firearm Policy Coalition, other pro-gun advocacy groups and firearms business filed a federal lawsuit stating that “New Mexico’s government cannot suspend the Constitution and Americans’ individual freedoms.”
North Carolina-Stafford, et al. v. Wake County:
Wake County Sheriff Gerald Baker announced on March 24 the temporary suspension of pistol purchase permits through April 30, 2020 with 755 permits pending on that date. On March 29, a letter was sent to the Wake County Board of Supervisors announcing a complaint being filed against Sheriff Baker.
Pennsylvania-CRDF, et al., v. Pennsylvania Governor Tom Wolf:
This lawsuit seeks an injunction against Gov. Tom Wolf’s COVID-19 order of March 19 shuttering all businesses that are “not Life Sustaining.” Although the Pennsylvania Supreme Court reached a divided opinion that denied the injunction, Gov. Wolf took notice of Justice Wecht’s suggestion of an “accommodation” in allowing firearms retailers to conduct business. Although Gov. Wolf did not publicly announce a policy change regarding firearms dealers, but included the change in an updated list of “Life Sustaining Businesses”—Except that firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law, subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons; 2) the dealer will comply with social distancing, sanitization of applicable area between appointments, and other mitigation measures to protect its employees and the public.”
Non-COVID-19 2nd Amendment lawsuits
NRA v. Swearingen:
In 2018 after the Marjory Stoneman Douglas High School massacre the Florida legislature passed a gun law that prevented people under the age of 21 from buying any firearms. Before the passage of that law people under 21 were prohibited under federal law from buying handguns but were able to purchase rifles and shotguns. The NRA filed a lawsuit to constitutionally challenge that prohibition. After delay due to an attempt to keep the plaintiff names sealed, on May 1 Chief U.S. District Judge Mark Walker denied the state’s motion to dismiss the case. Walker made it clear that he was only ruling on whether the case should move forward not whether the law violated the Second Amendment. The case is scheduled to go to trial in January 2021.
New York State Rifle & Pistol Association Inc. v. City of New York, New York:
Unfortunately, the City of New York and NY State were able to accomplish their objective by changing the law after the US Supreme Court decided to take this case. That stratagem was successful as a majority of the Justices took the easy way out by ruling the case “moot” and sending it back to the lower court without deciding any Second Amendment issue. Three Justices, Alito, Thomas and Gorsuch, joined in the Alito 31-page dissent. Alito argued that it is not even “a close question” that NY City’s transport ban violated the Second Amendment. With several Second Amendment cases still awaiting certiorari, we can only hope that SCOTUS decides to hear another Second Amendment case in its next session.
Rhode v. Becerra:
The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. 3 gold medals, 1 Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez. Thus all the restrictions on purchasing ammunition in California are in effect again. Further information on the original ruling can be found here.
Ross v. Melekas:
The Second Amendment Foundation, the Connecticut Citizens Defense League and two individual plaintiffs are suing the Connecticut enforcers of the magazine limitation on the basis of the Second and Fourteenth Amendments to the U.S. Constitution.
City of Philadelphia v. Rashad T. Armstrong:
In 2018 Larry Krasner, the newly elected Philadelphia District Attorney, decided to enforce a 2008 Philadelphia ordinance requiring 24-hour notice when a firearm was found to be missing. The first person to be charged with failure to report a lost or stolen firearm is Rashad Armstrong whose handgun was found in a traffic stop in 2018. On March 6, 2020 Armstrong’s attorney, Joshua Prince, argued that the Pennsylvania preemption statute prevents Philadelphia from enacting their own firearms ordinances.
Duncan v. Becerra:
Oral arguments are scheduled for April 2, 2020. 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 Mar. 29, 2019 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.” But on April 5, 2019 the restrictions against magazines that hold 10 or more rounds were back in place, and “For those persons who have manufactured, imported, sold or bought” such magazines between March 29, 2019 and 5:00 pm April 5, 2019 they may possess them.
Landmark Firearms LLC, et al v. Colonel Robert Evanchick:
See the background information under Pennsylvania legislation. On Dec. 20, 2019 Landmarks Firearms, US Rifle petitioned to stop the Commissioner f Pennsylvania State Police (Robert Evanchick) enjoined from implementing the new PA policy that states an unfinished receiver meets the definition of “firearm.” After a January 21, 2020 hearing on the application Commonwealth Court Judge Kevin Brobson found that the PA State police had violated the due process rights of Pennsylvania residents and businesses and issued an injunction is until the final disposition of the Petition for Review, including appeals has been reached.
Thomas, et.al. v. Illinois State Police:
The Second Amendment Foundation and Illinois State Rifle Association have sued the Illinois State Police in federal court over the agency’s sluggish handling of Firearm Owner Identification (FOID) card applications and renewals. For the story.
Jones, et al v. Becerra:
This lawsuit is challenging the “California Age-Based Gun Ban” that prohibited adults between the ages of 18 and 20 from acquiring any firearm. United States District Judge denied the applications from three anti-gun groups Everytown, Giffords Law Center and Brady from filing amicus briefs as their “partisanship is apparent.”
City of Kansas City, MO v. Jimenez Arms, Inc., et al:
Kansas City, MO is suing a number of firearms companies for supplying firearms to James Samuels, a former Kansas City Fire Department Captain who was charged and is being prosecuted for federal gun crimes. This suit is being supported by Everytown Law, part of Michael Bloomberg’s Everytown for Gun Safety.
2019-2020 Gun Control in the U.S. Congress
A group of anti-gun state Attorney Generals led by AG Washington State Bob Ferguson sent a letter to U.S. Senate leaders requesting they pass legislation to reauthorize the Violence Against Women Act (VAWA) citing the spread COVID-19. The letter can be found here.
Anti-gun Senators send letter to FBI and BATF:
Senators Murphy (D-CT), Blumenthal (D-CT) and Markey (D-MA) sent a letter to the FBI and the BATF requesting these agencies to adopt very stringent policies concerning gun sales including suspending all delayed firearms transfers indefinitely and store firearms transfer records for more than the legally required 90 days, which could lead to a gun owner registry. The letter can be found here.
H.R. 5717 and S. 3254:
are the most far reaching gun control proposals with one exception. H.R. 5717, introduced by Rep. Hank Johnson (D-GA), is basically the wish-list of all the gun controllers in the world without completely banning firearms. A federal gun license with background checks and a 7-day waiting period, banning every semi-automatic, banning every magazine with over 10-round capacity; red flag laws; 30% additional tax on firearms and 50% tax on ammunition, draconian safe storage requirements, suppressor bans, one-gun-a-month restrictions, and more gun-free zones. S. 3254, sponsored by Sen. Elizabeth Warren, commonly known as “Pocahontas,” grandfathered those weapons that are considered “assault weapons.” We all know that is a ploy to try to win some Republican votes for the measure. It is necessary for every gun owner to contact their Republican Senators and ask them to vote no on S. 3254.
Awaiting action in the U.S. Senate:
In February 2019 the House passed two extreme gun control measures—H.R. 8, a universal background check bill, and H.R. 1112, a bill to extend the time from 3 days to 10 days if a prospective buyer is not cleared in a NICs check. These bills are still awaiting action in the U.S. Senate and could be incorporated into any new legislation that the House passes.
State Legislation
All state legislatures with the exception of Montana, Nevada, North Dakota, and Texas were in session this year.
The states of Connecticut, Florida, Idaho, Indiana, Kentucky, Maine, Maryland, New Mexico, Oregon, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia and Wyoming have adjourned.
The following states postponed their legislative sessions: Alabama, Arizona, Colorado, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Vermont, Wisconsin, plus the District of Columbia.
Alabama:
The Speaker of the House Mac McCutcheon wrote to the Alabama Sheriffs Association (ASA) that he was in support of HB39, a lifetime Right-to-Carry Permit bill. The ASA has been actively lobbying against this bill. The Senate Committee for the Judiciary passed SB47 6-3, creating a statewide uniform system of lifetime Right-to-Carry Permits at a cost of $200. If an applicant is over 65, the fee is $150.
California:
On May 4, the legislature went back into session.Attorney General Xavier Becerra has extended Ex parte Gun Violence Restraining Orders to 90 days from the current 21 days.
Illinois:
The General Assembly has postponed its legislative session until further notice. The Illinois State Police announced new rules on their Facebook page. Once you get to that page click on the Posts page and search for FOID in the search box.
Indiana:
Normally a Second Amendment friendly legislature but SB16, which would prohibit juveniles who used a gun in a crime and were punished to be denied their Second Amendment rights until they reached the age of 26 or 28, passed the Senate 43-6.
Massachusetts:
The Joint Committee on Public Safety and Homeland Security’s action deadline of Feb.5 to act on any of the bills on its agenda has been rescheduled to May 5, 2020. And it will probably be pushed back due to the COVID-19 Pandemic.
Michigan:
Following a protest by Michigan citizens against Gov. Whitmer’s draconian shutdown orders, the Michigan Capitol Commission is considering banning guns in the state capitol without a referendum.
New Hampshire:
The General Assembly has suspended its legislative session indefinitely.
New Jersey:
When the Senate Law and Public Safety Committee held a hearing Feb. 24 on S120, increasing the penalty for negligent gun storage, and S746, denying persons who have been convicted of “animal cruelty” from possessing a firearm, there was not a quorum and those bills were not enacted. However, they are still viable.
New Mexico:
When Gov. Michelle Lujan Grisham signed a new red flag law she “urged” the sheriff either the enforce the law or resign. Lawmen appear to have ignored her.
Ohio:
Gov. DeWine signed HB197, a bill that includes an amendment to address Right-to-Carry Permit expirations extending the expiration date of for 90 days. Ohio Attorney General David Yost has stated that he is developing a database for the listing of stolen guns. Two bills, SB223, banning bump stocks and high capacity magazines, and SB203, regulating firearms transfer at gun shows, were brought up before the Senate Government Oversight and Reform Committee but no votes were taken. HB178, a constitutional carry bill, was approved in the House Federalism Committee on June 26. It has been re-referred to the Criminal Justice and Rules and Reference Committees on June 28 and June 30. In the past year 69,375 new carry licenses and almost 100,000 renewals were issued.
Pennsylvania:
HB2344, instituting a permit to purchase ammunition, has been referred to the House Judiciary Committee, to be added to four anti-gun bills awaiting action: HB2076, a person’s driver’s license may be revoked if that person’s license to carry a firearm expires or is revoked; HB2077, a mandatory safe storage of firearms bill with penalties; HB2078, waiting period prior to possession of a “semi-automatic assault rifle”; and HB2216, banning the sale of toy guns that are not vibrant colors.
Wisconsin:
The legislature is meeting remotely. SB822, allowing persons with Right-to-Carry Permits to carry in churches, is awaiting action by the Senate Committee on Insurance, Financial Service, Government Oversight and Courts.
