By Tanya Metaksa
What’s New—Biden-Harris Administration DOJ comments: Comments on “Frames & Receivers” close in 31 days, while comments on”Stabilizing Braces” close in 51 days. Over 120,000 comments received on stabilizing braces to date and over 83,900 received on frames and receivers: Vote on David Chipman: Senator Schumer not yet sure he has votes to install David Chipman as BATFE Director; California: The legislature is taking a summer recess from July 16 to mid-August; Connecticut: Gov. Ned Lamont signed HB6355, expanding who can petition for an ex parte order to seize an individual’s firearms; Louisiana: State legislators voted to have a veto session on July 20, 2021. Now the anti-gun groups are lobbying legislators to NOT override Gov. Edwards veto of constitutional carry, SB118; Minnesota: Special session adjourns; Rhode Island: Gov. Dan McKee signed HB5386/SB73, was amended to prohibit straw purchases, and HB5727/SB119, requiring the RI Attorney General to compile a list of gun charges and their disposition. Judicial: NYSR&P v. Bruen: The NRA has filed an opening brief is this case which is scheduled for SCOTUS in its 2021-2022 term.
Biden-Harris Administration
Attorney General Merrick Garland’s Gun Confiscation Scheme
The Biden-Harris gun confiscation proposal released by Attorney General Merrick Garland on July 7 includes “model” state legislation that includes gun confiscation without due process. This proposal is known in some states as “red flag” laws or “extreme risk protection” orders.
One of the most egregious parts of this proposal is that the gun owner gets no notice of an “ex parte hearing” and no opportunity to participate in the hearing. Gun owners should be alarmed at this proposal, which could be enforced by BATFE if David Chipman becomes the Director. For those that do not know or have forgotten, in 2016 Merrick Garland was President Obama’s choice to replace Supreme Court Justice Antonin Scalia, the author of the Heller decision. Gun owners should be grateful to Senator Mitch McConnell for being steadfast in not allowing that nomination to get a vote. Check out this USA Today opinion piece from 2016.
Bureau of Alcohol, Tobacco, Firearms and Explosives
BATFE Director nomination: History of the David Chipman nomination to run BATFE: On June 24 the Senate Judiciary Committee split 11-11 on confirming David Chipman to become Director of BATFE.On June 23, Senator Susan Collins announced that she would vote against David Chipman’s nomination to become Director of BATFE.
This past week another Republican who has supported some of Biden’s nominees, Senator Pat Toomey (R-PA), announced he would vote NO on the Chipman nomination. As we reported last week the National Shooting Sports Foundation (NSSF) has invested in its first-ever television commercial urging U.S. Senators to oppose David Chipman. You can view the ad here. According to Stephen Gutowski of The Reload Chipman’s nomination is “in limbo.” Gun owners in all states but especially in Alaska, West Virginia, Arizona, and New Hampshire should keep emailing and phoning their Senators to vote NO on the Chipman nomination.
Proposed BATFE regulations: Please be sure to make your voice heard against both these proposals. Be sure to include which regulation you are writing about: “Frame or Receiver” or “Stabilizing Braces.” Every gun owner is encouraged to submit comments: Through the Federal eRulemaking Portal on the internet: www.regulations.gov. By fax: 202-648-9741. By U.S Postal mail:
Andrew Lange, Office of Regulatory Affairs
Enforcement Programs and Service
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Ave., NE Mail Stop 6N-518
Washington, DC 20226
ATTN: AFT 2021R-05
Contact info for questions is: 202-648-7070
Comments on proposed regulations regarding “Stabilizing Braces”: Since comments were opened on these proposed regulations more than 120,300 comments (most of them being negative) have been received by July 18, 2021. All 19 Republicans on the House Judiciary have sent a letter to the Acting BATFE Director questioning the proposed regulations. The letter can be found here. On June 7 the BATFE published a new proposed rule entitled Factoring Criteria for Firearms with attached “Stabilizing Braces.”The proposal can be found here. Comment period ends on September 8, 2021 (51 days from today). Click on this link.
Comments on proposed regulations regarding “Frame or Receiver”: On May 21,the BATFE published a new proposed rule in the Federal Register entitled Definition of ‘Frame or Receiver’ and Identification of Firearms. Comments will be accepted until August 19, 2021 (31 days from today) According to the Federal Register more than 86,964 comments have been received as of July 18, 2021.
If you click on this link frames or receivers it will take you to the appropriate page. There you can read what others have written and submit your own comments.
Politics
2021 is an election year in the states of New Jersey and Virginia for the constitutional officers and the legislature.
Oregon: Two “gun reform” petitions in Oregon have garnered the 2,000 signatures needed for a ballot title approval by the Attorney General. IP17 ban the sale of “large capacity” magazines and require permit and background check to purchase a firearm and IP18 bans the sale of “assault weapons.”
2021 Gun Bills in the U.S. Congress
The House of Representatives passed gun control legislation using two bills: HR8, a “universal background check” bill and HR1446, a bill that would allow the FBI “NICS” check to be delayed indefinitely without “proof” that the buyer is not eligible to purchase. The votes were 227-203 for HR8 and 219-210 for HR1446.
A few of the other anti-gun proposals:
H.R. 1207, Stop the Online Ammunition Sales Act of 2021, is a licensing scheme requiring all ammo sales to be in person. It also mandates anyone selling ammunition have a new federal license and keep a list of all buyers while reporting all sales of 1,000 rounds or more.
S.736 is Senator Dianne Feinstein’s new “assault weapons” ban. Its title is “A bill to regulate assault weapons, to ensure that the right to keep and bear arms is not unlimited, and for other purposes.” Text still not available yet.
Pro-gun:
H.R. 38, the Concealed Carry Reciprocity Act, was introduced again by Rep. Richard Hudson (R-NC). This bill allows travelers to possess and receive a firearm under federal law if they have a government issued ID card and have a Right-to-Carry permit or reside in a state that allows lawful concealed carry. H.R. 95, remove silencers from definition of firearms.
2021 State Legislation
All state legislatures were/are in session in 2021.
Since over half of the legislatures adjourned by June 30, the following states will carry over the 2021 legislation to 2022: California, Delaware, Georgia, Illinois, Iowa, Kansas, Massachusetts, Maine, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Vermont, Washington, Wisconsin and West Virginia (House only)
Alaska: SB136, a bill to protect Second Amendment businesses during a state of emergency, passed the Senate Community and Regional Affairs Committee. HB11, allowing for defensive display of a firearms, was heard by the House Community and Regional Affairs Committee. HB179, a bill protecting Alaskans from infringement on their Second Amendment rights during a state of emergency, has been introduced.
California: On July 13 the Assembly Public Safety Committee voted to pass SB264, banning gun shows on state property.After the recess (July 16-August 16) the Assembly will vote on SB264.Although a vote in the Assembly for AB1223, adding an additional 10% excise tax on handguns and and 11% tax on long guns and ammunition, failed to attain the required 2/3 of votes, (tax bills need a 2/3 majority vote to pass) expect it to be reconsidered before final adjournment in September 2021.
Colorado: The Colorado legislature has adjourned and Gov. Jared Polis signed: SB256, repealing Colorado preemption law; HB1298, allowing an indefinite delay of firearms transfer; and HB1299, initiating an Office of Gun Violence Prevention paid for by tax dollars.
Connecticut: The Connecticut legislature adjourned but not before the legislature passed HB6355, expanding who can petition for an ex parte order to seize an individual’s firearms, and Gov. Ned Lamont has signed the bill.
Delaware: The Delaware legislature has adjourned. The only anti-gun bill that was passed by the legislature was HB125, banning home-built firearms. It is before Gov. John Carney for his consideration.
Florida: HB259, the Church carry bill, was signed by Gov. Ron DeSantis.
Hawaii: Gov. David Ige signed HB1366, banning the manufacture or possession of firearms or parts for “ghost” guns that will go into effect on January 1, 2022, and HB31, a mandatory safe storage bill that goes into effect immediately. The Senate passed SB307, banning firearms that fire fifty caliber or higher, and SB301, banning so-called “assault rifles” and “assault shotguns”.
Illinois: Two anti-gun bills are working their way through the legislature: HB562, making FOID cards more restrictive and harder to obtain, and HB1092, expanding seizing firearms without due process.
Louisiana: Gov. John Bel Edwards vetoed SB118, constitutional carry, that passed the legislature. A veto override session will be held on July 20, 2021.
Maine: A special session has been convened in Maine. Both Houses passedin concurrence LD884, prohibiting the Department of Public Safety from retaining data concerning firearms purchases.
Massachusetts: Among many anti-gun bills introduced are HD135, requiring background check for private gun sales, and HD136, requiring liability insurance for gun ownership–failure to carry the insurance would result in a fine of $500 to $5,000, up to a year in prison, or both.
Michigan: Two pro-gun bills have passed the House: HB4030 and HB4498, together these bills reduce fees for Right-to-Carry permits.
New Hampshire: Both SB141, fixing the handgun purchase process has passed the legislature, and HB334, allowing persons to carry loaded firearms on Off-Highway Recreation Vehicles, are awaiting Gov Sununu’s consideration.
New York: Although the legislature has adjourned, on July 6 Governor Anthony Cuomo declared a “gun violence state of emergency” and at the same time signed S7196, a state law making it easier to sue gun manufacturers in NY state. Other 2021 anti-gun bills that are in the legislative process can be brought up in the 2022 legislative session. Here is the status of these anti-gun bills: On June 8, both the Senate and House passed: S13A and S14A, making it a felony for anyone to sell, transfer or exchange incomplete receivers; S1251, mandating quarterly reports on gun data; S2981, establishing a Center for Firearm Violence Research with taxpayer dollars; and S5000 dealing with criminal possession and disposal of crime guns. These bills are on their way to Governor Cuomo for his consideration. The following bills will be considered in the 2022 legislative session. The Senate has passed: Senate S.687, updates the definition of “toy gun”; S1048A, a bill to bypass the federal 2005 Protection of Lawful Commerce, and S1235, ten-day waiting period prior to firearm purchase. These bills will be considered by the Assembly next year. Still waiting for action in the Senate Rules Committee are: S4116, requiring semi-automatic handguns to include micro-stamping technology, S1192A, requiringany gun owner to get a “firearms safety certificate”,and S5026, requiring police to seize firearms when responding to a domestic disturbance call.
Ohio: SB185, prohibiting any state agency during a declared state of emergency from restricting the lawful use or firearms or their confiscation, was the subject of 2 hearings before the Senate Veterans and Public Safety Committee during the first week of June. HB297, the FIND (Firearm Industry Non-Discrimination) Act, has been introduced. NSSF, the National Shooting Sports Foundation, has been supporting these bills that “protect firearm and ammunition businesses from being canceled by ‘woke’ activists who would unfairly and unlawfully discriminate against an entire industry simply because they disagree with Americans exercising their constitutional rights.” HB89, the Duty to Notify bill, was passed by the House State and Government Committee 9-5. According to its sponsor, Scott Wiggam, the current law is unclear and the penalties for failure to notify law enforcement that a person is carrying a gun are excessive. This bill passed the House in 2020, but was not considered in the Senate.
Pennsylvania: Bills in the 2021 legislature carry over into the 2022 legislature. SB565, the Senate constitutional carry bill, has been sent to the full Senate by the Senate Judiciary Committee. The House Judiciary Committee to consider HB659, constitutional carry legislation. HB361, a bill to undo the firearms pre-emption statute, HB364, destroying confiscated firearms, and HB393, state firearms dealer licensing are still in House committees.
Rhode Island: Gov. Dan McKee signed both HB5386/SB73, was amended to prohibit straw purchases, and HB5727/SB119, requiring the RI Attorney General to compile a list of gun charges and their disposition.
Texas: The Texas legislature has begun a 30-day special session and a number of Democrat House members have fled Texas and gone to Washington D.C. in order to stymie the majorities ability to conduct business.
Judicial
We will be adding or following again those cases that have new challenges or decisions. New cases are added as they develop and some of these cases will be removed from this report if there is inactivity for a period of time. We will try and follow those cases that are active and impact the most gun owners.
New York State Rifle & Pistol Assn v. Corlett: The NRA has officially filed an opening brief. This case will be argued and decided in the 2021-2022 US Supreme Court (SOCTUS) term. On April 26, the US Supreme Court voted to grant certiorari to this case that deals with carrying of firearms outside the home. According to the Supreme Court orders: “The petition for a writ of certiorari is granted limited to the following question: Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” As a split exists in the Circuit Court decisions regarding this premise, SCOTUS is going try and resolve the issue. It has taken more than a decade to get the Supreme Court to take up another Second Amendment case after the Second Amendment victories in Heller and McDonald.
N.J. and A.L. v. Sonnabend and Kaminski: A case where student speech, where students in two different Wisconsin schools were denied their 1st Amendment rights when they wore clothing depicting firearm(s) to school. The District Court ruled on May 3, 2021 that the 1st Amendment does not protect students’ rights to wear clothing that depicts firearms in a non-violent, non-threatening manner. On July 9, 2021 his case was appealed to the U.S. Court of Appeal for the Seventh Circuit.
NRA v. Swearingen: On July 7, the NRA appealed Judge Walker’s decision to the US District Court for the Northern District of Florida.This is a case that deals with the age of majority. U.S. District Judge for the Northern District Mark E. Walker wrote a strange opinion in which he stated, “for better or worse” he was precluded from ruling any way other than upholding the law.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, except if they had parents or relatives to assist them. 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.
Lara v. Evanchick: The Firearms Policy Foundation (FPF) and the Second Amendment Foundation (SAF) have initiated a case challenging Pennsylvania law that denies young adults under 21 the freedom to carry a loaded firearm for self-defense outside their home. On April 16, Judge William S. Stickman IV of the US District Court for the Western District of Pennsylvania ruled against the plaintiffs. On June 23, an appeal was lodged in the US Court of Appeals for the Third Circuit.
Massachusetts v. Holmes: This case was originally brought in 2018 in a Massachusetts court. 14 cities and towns, police officers and a gun store have been sued under the Massachusetts False Claims Act for improperly disposing of firearms surrendered under state law. The Court ruled on June 30 that the suit could proceed but that the cities and towns could not be sued but the officers did not have qualified immunity and could be sued in their individual capacity. The judge wrote, “Furthermore, no reasonable officer would have understood that their conduct as alleged in the complaint—disposing of plaintiff’s guns and other items without notice, opportunity to be heard, or adequate state-law remedies—would come close to satisfying due-process requirements.”
Palmer v. Sisolak: Upon the signing of Nevada bill AB286, the ban on home-built firearms, Firearms Policy Coalition initiated this lawsuit and filed a motion for a preliminary injunction as well as a motion “for Expedited Briefing Schedule and Determination.
Miller v. Bonta: The state of CA has filed an emergency order to stay enforcement of Judge Benitez’s June 4, 2021 ruling and the Ninth Circuit Court granted the emergency stay. Judge Roget T. Benitez ruled that California’s “assault weapons” ban is unconstitutional. The judge stayed the ruling for 30 days to allow the state of California time to appeal. For a complete description of the unprecedented ruling see Dave Workman’s article.
Duncan v. Bonta: (formerly Duncan v. Becerra) It was almost a year ago, Aug. 28, 2020, when the office of the Attorney General filed a petition for an en banc hearing on this case after the case had been won at the district court and at a 3-judge panel of the Ninth Circuit, that held that the California law banning magazines capable of holding more than 10 rounds is unconstitutional. On June 22, 2021 the arguments were heard before an 11-judge en-banc panel of the Ninth Circuit Court of Appeals. CRPA has an extensive analysis of this decision. Additionally the California DOJ posted a notice saying the prohibition ”remains in place until the appellate process is final.” This case appears to becoming the basis for how the Ninth Circuit will rule on all firearms’ cases before it. This case in addition to Rupp v. Becerra, which has been appealed to the Ninth Circuit, and Villaneuva v. Becerra, attacking the California DOJ’s regulations on “assault weapons” that was filed on September 7. 2017 are part of a three-prong attack on the California laws regarding bans on assault weapons and “large capacity” magazines that began early in 2017 by the CRPA and the NRA.
Franklin Armory v. California DOJ: Franklin Armory developed a long gun firearm named Title One that did not fit into any of the California designated firearm categories that are listed in the CA Department of Justice’s online form. Franklin Armory has communicated with the CA-DOJ about this problem since 2012. The case was brought in May 2020 and on June 3, 2021 the judge ruled on the CA-DOJ demurrer. A demurrer is a legal method to allow the defendant to have a case ruled irrelevant. On June 3, 2021 the court ruled “Respondents’ demurrer to the SAC is overruled. Respondents have 20 days to answer only.” The case can continue to trial.
Goldstein v. Earnest: This case has been brought by the Brady United Group on behalf of the Chabad of Poway Synagogue victims against the manufacturer and seller of the firearms used in the attack against the Chabad of Poway parishioners. The United States of America has intervened and filed a brief on June 8, 2021 “to present argument on the constitutional challenges to Plaintiffs’ First Amendment Complaint.” The brief is entitled, “A Brief of United States in support of the constitutionality of the Protection of Lawful Commerce in Arms Act.”
Meyer v. Raoul: The Second Amendment Foundation (SAF), the Illinois State Rifle Association, Firearms Policy Coalition, Inc. and three citizens ages 18-21 years of age are challenging the Illinois ban on allowing concealed carry for anyone not 21 years of age. In filing the lawsuit Alan M. Gottlieb, SAF founder notes, “Citizens in this age group enjoy nearly all of the rights guaranteed by the Constitution except when it comes to the Second Amendment. This cannot be allowed to stand.”
