By Tanya Metaksa
What’s New– Biden/Harris: Allegations about David Chipman and racist comments; Biden-Harris Administration DOJ comments: Comments on “Frames & Receivers” close in 17 days, while comments on “Stabilizing Braces” close in 37 days. Almost 124,000 comments received on stabilizing braces to date and over 100,000 received on frames and receivers; Vote on David Chipman: Has not been scheduled as of Aug. 1; Oregon: another ballot initiative-anti-hunting, anti-trapping, anti-fishing and anti-farmer; Texas: Democrat members still in Washington D.C.; Judicial; Defense Distributed v. Bruck: A decision about venue for this First Amendment case concerning internet files for printing items covered by the Second Amendment.
Biden/Harris Administration
A report by Lee Williams exposes the administration’s strategy to go after FFL dealers in order to deflect attention away from states and cities that have undergone a huge increase in violent crime in the past year and one-half. The attack on FFLs began with the Department of Justice’s “gun trafficking strike forces” that were sent to five different cities to crack down on so-called rogue dealers. Dave Workman covered Attorney General Merrick Garland’s press conference that kicked off the anti-gun effort.
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 during the week of July 12, another Republican who has supported some of Biden’s nominees, Senator Pat Toomey (R-PA), announced he would vote NO on the Chipman nomination and at the same time 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.
July 22 news: The Biden Administration is now pushing hard for Chipman’s nomination as Attorney General Garland was quoted as saying, “he hoped the Senate would confirm the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives to help front the federal effort effort against gun violence.” While over in the House of Representatives Representative Matt Rosendale, (R-MT) and 11 more Representatives are pushing a resolution to impeach Chipman even before he is confirmed. If you live in a state with Democrat Senators contact them again and again. 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. On July 30, Senator Mitch McConnell gave a speech on the Senate Floor that cited a story on The Reload about the “existence of a complaint that David Chipman made racist remarks while working at the agency.”
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 121,600 comments (most of them being negative) have been received by July 22, 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 (37 days from today). Click on this link.
Comments on proposed regulations regarding “Frame or Receiver”: On May 21st 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 (17 days from today). According to the Federal Register more than 100,000 comments have been received as of Aug. 1.
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 2022 Ballot Initiatives: The petition process is alive and well in this state. A third petition, IP13, received approval on July 15 to solicit signatures to put this petition on the 2022 ballot. The YesonIP13 group is framing this initiative as an effort to stop animal cruelty. Their website states, “If enacted, IP13 would remove some of the exemptions to our pre-existing animal cruelty laws that currently allow certain individuals to abuse, neglect, and sexually assault animals without penalty.
According to Mary Ann Cooper of the Oregon Farm Bureau, “Adoption of the initiative would effectively criminalize everything from slaughtering livestock to basic animal husbandry, including branding and dehorning cattle, castrating bulls and docking horses, sheep, and pigs.” This initiative not only bans hunting, trapping and fishing but it would reclassify animal breeding and artificial insemination as sexual assault of an animal – a Class C felony. The two “gun reform” petitions in Oregon are now awaiting ballot approval by the Attorney General after having garnered the required 2,000 signatures per petition. They are: IP17 to ban the sale of “large capacity” magazines and require permit and background check to purchase a firearm and IP18 to ban the sale of “assault weapons,” which are listed.
2021 Gun Bills in the U.S. Congress
Senator Lindsay Graham (R-SC) just introduced S.2449, the Federal Firearms Licensee Protection Act. It enhances the theft of a firearm from a FFL. The National Shooting Sports Foundation is supporting this bill.
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
Vermont has not adjourned, but has recessed and will be returning in October.
Since over 50% of the legislatures have adjourned by June 30, the following states will carryover 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: After the recess (July 16-Aug. 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.
Connecticut: An update to the Connecticut State Police software that handles firearms sales, pistol permits and other firearms related business has turned into a nightmare. As we reported last week the software update was to be accomplished over the long weekend of July 9-13. However even as late as July 19 no firearms retailers were getting through to the State Police to process firearms sales. According to Lawrence Keane of the National Shooting Sports Foundation (NSSF), “Connecticut retailer members are extremely frustrated by the lack of adequate coordination and planning and wholly inadequate roll-out of the “upgraded” system producing extended outages.” According to a Bearing Arms report, “the vast majority of customers over the past week and a half have been unable to complete their purchase.”
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.
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: The veto override failed by 2 votes in the Senate thus constitutional carry is not the law in Louisiana.
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.
Minnesota: A special session of the legislature has completed its business and adjourned. An Environmental Omnibus bill, SF959, that included funding that could be used for ranges and firearms training was passed.
New Hampshire: Both SB141, fixing the handgun purchase process, 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, requiring any 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 two 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: Although the Texas legislature began a 30-day special session on July 7 the Democrat members are still in Washington, D.C. and are now being joined by more Democrat state legislators this week.
Virginia: Albemarle County proposed a county-wide ban on guns in county owned areas including parks. The hearing was on July 21 and gun owners were so well represented that the Board of Supervisors, who had limited the number of speakers on each agenda item to ten, rescinded that limit. As of July 22, the vote on the proposal has been postponed as there will be amendments to the proposal. According Virginia Citizens Defense League (VCDL) the next meeting of the Board is August 18 and it is highly unlikely another hearing will be scheduled.
Wisconsin: SB461, prohibiting undetectable firearms, possessing a frame or receiver of a firearm without a serial number, has just been introduced.
Judicial
We will be adding or following again those cases that have new challenges or decisions. Cases are grouped by court venue. 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.
US Supreme Court (SCOTUS)
New York State Rifle & Pistol Assn v. Bruen: As of the middle of July 43 different amicus briefs have been filed in this case. The list of such filings can be found here. 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 will attempt to resolve the issue. It has taken more than a decade to get the Supreme Court to take up another Second Amendment case after Second Amendment victories in Heller and McDonald.
Non-SCOTUS Federal cases
Defense Distributed v. Bruck: This case was originally named Defense Distributed v. Grewal. Grewal was the former New Jersey Attorney General, but became Director of SEC enforcement in June and the new New Jersey Attorney General is Andrew Bruck. Both Dave Workman and I have written about this case. Workman’s summary is here and mine is here. After the Fifth Circuit ruled that this case was to be decided in the Fifth Circuit Court, which is in Texas, the former attorney General of New Jersey Gurbir Grewal, appealed to SCOTUS unsuccessfully in March 2021. Now the plaintiffs, Defense Distributed and the Second Amendment Foundation are in court to restore the case back to the Fifth Circuit Court of Appeals for a decision. Arguments are scheduled for August 3, 2021.
N.J. and A.L. v. Sonnabend and Kaminski: A case where student speech, where students in 2 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 this case was appealed to the U.S. Court of Appeal for the Seventh Circuit.
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 Sept. 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.
Ban on firearms for citizens ages 18-21 in federal court
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 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.
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.”
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 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.
State cases
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. A second amended complaint has just been filed. They are using the concept of deceptive advertising by the firearms manufacturer similar to the Soto v. Bushmaster case in Connecticut. The United States of America has intervened and filed a brief on June 8, “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.”
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.
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, 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, the court ruled “Respondents’ demurrer to the SAC is overruled. Respondents have 20 days to answer only.” The case can continue to trial.
