By Tanya Metaksa
What’s New– Biden_Harris Administration DOJ comments: Comments on“Stabilizing Braces” closes in two days. Approximately 179,000 comments received on stabilizing braces to date and over 179,000 received on frames and receivers. Don’t forget to send in comments; California: SB264 passed the Assembly with amendments and goes back to Senate for concurrence; New Mexico: Democrats introduce “Crime” package with emphasis on gun control; North Carolina: No sooner had HB398 passed the legislature, anti-gun Governor Roy Cooper vetoed it; Judicial: Aposhian v. Garland: A writ of certiorari has been filed ina case that is based on “bump stocks” but goes to the heart of BATFE’s discretion in interpreting federal law.
Biden/Harris Administration
The U.S. State Department issued a press release in which it clearly stated “[n]ew and pending permit applications for the permanent importation of firearms and ammunition manufactured or located in Russia will be subject to a policy of denial.” Gun owners on Twitter were all over this expressing their frustration concerning the years-long unavailability of ammunition and it its ever increasing cost. These sanctions were attributed to the Russian government using the nerve gas “Novichok” to poison Aleksay Navalny in 2020. The use of Novichok is in direct violation of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991. The sanctions will start on September 7, 2021 and run for a minimum of 12 months.
During a CNN “Presidential Town Hall” President Biden listed a number of guns he would like to ban that included “a 9-millimeter pistol or whether it’s a rifle or shotgun capable of accepting a detachable magazine.”
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.
Bureau of Alcohol, Tobacco, Firearms and Explosives
BATFE Director nomination: No movement during this past week on the nomination of David Chipman, the anti-gun lobbyist and former BATFE agent, to become BATFE Director.
Proposed BATFE regulations: Comments on the “Frame or Receiver” proposed regulation have closed.
Comments on proposed regulations regarding “Stabilizing Braces”: Since comments were opened over 145,000 comments (most of them being negative) have been received. All 19 Republicans on the House Judiciary have sent a letter to the Acting BATFE Director questioning the proposed regulations. Comment period ends on September 8, 2021 (2 days from today). Click on this link.
Politics
According to Politico: Fouranti-gun groups are pressuring President Biden to create another White House office that would function as a Cabinet level bureaucracy–the Office of Gun Violence. The four groups, Guns Down America, March for Our Lives, Newtown Action Alliance and Survivors Empowered, appear to be attempting to gain publicity and notoriety in the anti-gun movement by publishing this letter.
2021 Congressional Activity
Republican members of the House Judiciary Committee sent a letter on Aug. 10 to ATFHQ concerning “Definitions of ‘Frame or Receiver’ stating:
“ATF’s proposed rule goes well beyond the authority granted to the agency in any applicable federal statutes…ATF’s rule appears to be a deliberate attempt to usurp the authority of Congress. In so doing, ATF has unconstitutionally infringed on American citizens’ fundamental Second Amendment rights and privacy rights under the Fourth Amendment. We strongly urge ATF to abandon its proposed rule issued on May 21, 2021, entitle “Definition of ‘Frame or Receiver’ and Identification of Firearms.” The letter was signed by Representatives Andy Biggs, Jim Jordan, Louie Gohmert, W. Gregory Steube, Tom Tiffany, Victoria Spartz, Scott Fitzgerald and Burgess Owens.
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.
2021 State Legislation
Vermont has not adjourned, but has recessed and will be returning in October.
Since most of the legislatures that are not 12 month legislatures have adjourned, 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: In special session. 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: Senate Appropriations Committee on August 26 passed SB264, prohibiting gun shows on state property, and SB715, limiting the use of a hunting license when purchasing a long gun to a license “that was issued for the hunting season immediately preceding the calendar year” that the buyer will take possession. Both bills now go to the Assembly for concurring votes. 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.
San Diego: San Diego City Council passed an ordinance to ban the purchase of “ghost gun” kits on August 2 and it must come before the City Council for a second time on September 14, 2021.
Delaware: The Delaware legislature has adjourned. The only anti-gun bill that was passed by the legislature was HB125, banning home-built firearms is awaiting Gov. John Carney’s consideration.
Illinois: The legislature is in recess but committees are meeting to consider legislation. HB1092, expanding seizing firearms without due process, has passed the legislature but has not been signed by the governor. HB562 will add to the burdens of law-abiding gun owners by: expanding background checks for all gun sales, requires the state police to remove guns from persons with revoked FOID cards, creates a stolen gun database and allows electronic records of FOID and carry licenses.
New Hampshire: Gov. Sununu vetoed SB141, the bill that fixed delays during handgun purchases, and HB334, allowing carrying of a loaded firearm on an Off-Highway Recreational Vehicle (snowmobile).
New Mexico: As a result of a crime epidemic in Albuquerque the Albuquerque Democrat leaders and their state representatives have come up with gun control proposals for the 30-day budget session of the 2022 New Mexico legislature. They are requesting that Gov. Michelle Lujan Grisham make these bills germane to the session.
North Carolina: Ant-gun governor Roy Cooper immediately vetoed HB398, repealing the NC pistol permit that duplicated the federal NICS background check.
Pennsylvania: The legislature is planning to reconvene by the end of September. The following pro-gun bills are awaiting action–SB565, the Senate constitutional carry bill, was sent to the full Senate in June by the Senate Judiciary Committee, while the companion bill, HB659, made it out of House Judiciary Committee before the recess. HB979, a pro-gun preemption bill, that was originally HB1066, has passed the House and is before the Senate Judiciary Committee. The House Judiciary Committee to consider HB659, constitutional carry legislation. The following anti-gun bills are still in the House Judiciary Committee: HB361, a bill to undo the firearms pre-emption statute, HB364, destroying confiscated firearms; and HB393, state firearms dealer licensing.
Judicial
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 that will be argued and decided in the 2021-2022 US Supreme Court (SOCTUS) term. On April 26, 2021 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.
Aposhian v. Garland: On Aug. 2, W. Clark Aposhian filed a petition for a writ of certiorari with the U.S. Supreme Court. This case was filed originally filed in 2019 seeking a preliminary injunction against the BATFE’s reclassification of “bump stocks” as “machine-guns”. The district court upheld the BATFE interpretation, as did a panel majority of the Tenth Circuit. The Tenth Circuit then granted a petition for review en banc. Then the Tenth Circuit vacated its prior order and reinstated the panel opinion. This case is now before SCOTUS asking for a writ of certiorari to the Tenth Circuit to rehear the case en banc. The following have filed amici briefs: Gun Owners of America, Inc., Virginia Citizens Defense League, Tennessee Firearms Association, Grass Roots North Carolina, Oregon Firearms Federation, Arizona Citizens Defense League, Gun Owners Foundation, Heller Foundation, Conservative Legal Defense and Education Fund, NRA, American Cornerstone Institute, State of West Virginia, Firearms Policy Foundation, Madison Society Foundation, Inc., Florida Carry, Inc., Due Process Institute and several individuals. This case is similar to GOA v. Garland listed below.
Non-SCOTUS Federal cases
Todd Yukutake, et al., v. Clare E. Conners: Two state of Hawaii firearms laws, requiring an individual tp purchase a firearms within 10 days of obtaining a permit to acquire and requiring a gun owner to physically bring a firearms to the police department for inspection within 5 days of acquiring it, were overturned by Judge J. Michael Seabright of the US District Court for the District of Hawaii on Aug. 16.
William Drummond, Second Amendment Foundation v. Robinson Township: The Robinson Township amended the current rules for shooting ranges by limiting shooting to rimfire rifles not high power rifles, the owner of the range sued. The suit was dismissed by a lower court, but the Third Circuit Court vacated the dismissal and the suit can proceed.
Francisco v. Cooke: Federal litigation brought by the plaintiffs in the US District Court for the District of New Jersey challenging the NJ carry ban. Brought by Firearms Policy Coalition (FPC) challenging the New Jersey law that “makes it a crime for law-abiding individuals to carry a loaded handgun outside of the home unless they have been issued a permit to carry a handgun, thus denying them their right to bear arms. State law requires permit applicants to demonstrate a “justifiable need,” among other requirements.”
GOA v. Garland: A case brought against BATFE’s rule that “bump stocks”, a non-mechanical accessory, transform firearms into a machine gun. The US District Court for the Western District of Michigan ruled against a preliminary injunction, thus the case was appealed to the U.S. Court of Appeals for the Sixth Circuit, where a three-judge panel vacated (reversed) that ruling. The U.S. Department of Justice appealed for a rehearing en bank putting the case back on the docket for oral arguments. I8 states filed an amicus brief in opposition to the bump stock ban.
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 his successor 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 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.
Ban on firearms for citizens ages 18-21 in federal court
Hirschfeld v. ATF: A case in the Fourth Circuit Court of Appeals on the Second Amendment rights of adults ages 18-21. On July 13, 2021 this Court “Vacated, reversed, and remanded” the lower court decision stating “Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.”
NRA v. Swearingen: The opening brief by the NRA was filed on August 17, 2021 before the US Court of Appeal for the Seventh Circuit. 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 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, 2021 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.”
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 the court ruled “Respondents’ demurrer to the SAC is overruled. Respondents have 20 days to answer only.” The case can continue to trial.
