By Tanya Metaksa
What’s New– State Legislation: In both Ohio and Michigan the issue of Second Amendment rights during a state of emergency are being voted upon; Colorado: Boulder Democrats suggesting to reinstate ban on “assault weapons;” NY: Erie County: Erie County Executive Mark Poloncarz overruled his county legislature and vetoed a measure to allow youth hunting at the age of 14;Politics: Dominion Energy asking for its political donation against VA Republican gubernatorial candidate Youngkin back; Judicial: Drummond, GPC, Second Amendment Foundation v. Robinson Township: A victory for a shooting range over town’s restrictive zoning ordinance; Guns Save Lives, Inc. v. Zahra, Ali: Illinois Supreme Court rules that county ordinance that specifically taxes purchase of firearms and ammunition is unconstitutional; Edmonds v. Bass: The Washington State Supreme Court has agreed to hear the city of Edmonds appeal from the Bass v. Edmonds decision of the Washington court of Appeals ruling.
Biden/Harris Administration
IRS, Bureau of Alcohol, Tobacco, Firearms and Explosives
An interesting article in the Daily Caller Proposed BATFE regulations points out that this proposal “is a potential way for the Biden administration to track who is purchasing firearms.” The article goes on to allege that this IRS proposal could become “a back-door gun registry.” The question really should be, “Do you want the IRS looking at every $600 or more expense or payment?”
Politics
2021 Virginia Governor’s Race
We have been following the Virginia Governor’s race for over a month. As we mentioned in last week’s Grassroots report, Stephen Gutowski of the reload.com has been following the Youngkin v. McAuliffe gubernatorial election. As a result of Gutowski’s reports it now appears that Dominion Energy is now asking Accountability Virginia PAC for its donation back. The amount of that donation was at least $200,000. According to thereload.com Dominion Energy CEO Robert Blue emailed the Richmond Times Dispatch, the following: “Based on our own disclosures, two news stories highlighted activities of the Accountability Virginia PAC that we would not approve or knowingly support. Although familiar with the Accountability Virginia PAC sponsors, we failed to vet sufficiently the scope of their intended activities.” The Virginia Citizens Defense League in their latest Alert wrote, “I have learned that gun owners absolutely inundated Dominion Energy with unhappy calls and emails.” Yet, as VCDL rightly asks, “Let’s be clear: Dominion Energy getting their money back fixes nothing.” For Virginia gun owners here is where Youngkin stands on guns: twitter. McAuliffe’s gun record is 4 years of promoting more and more anti-gun legislation as Governor in 2014-2018.
2022 Gubernatorial races:
Next year’s political races will not only include every member of the US House of Representatives and one-third of the US Senate, but 36 out of 50 governors’ seats will also be on the ballot. We will try and cover those races in which a pro-gun candidate is viable.
Florida: The current governor of Florida, Republican Ron DeSantis, has been a stalwart supporter of the Second Amendment and is running for re-election. It appears that there will be a free-for-all primary among Democrats seeking to take his job. At the present time the “front-runner” would be Agriculture Commissioner Nicole “Nikki” Fried, the only Democrat among the current constitutional officers. It has become obvious that Fried ran for Agriculture Commissione as a stepping stone to a gubernatorial challenge—her twitter account is nothing but full of attacks on Gov. DeSantis. In Florida the Agriculture Commissioner’s office is responsible for the issuance of Right-to-Carry permits and during the beginning of the pandemic Fried’s office did not process the in-person fingerprinting required for the permit application. After the Jan. 6 riot at the US Capitol Fried announced that the Department of Agriculture was revoking the permits of Florida residents who were charged in that disturbance. She continues to work at cross purposes with Florida gun owners.
Texas: It appears that Robert “Beto” O’Rourke, the former Representative that ran against Senator Ted Cruz in 2018 and then ran very unsuccessfully for President in 2020 is seriously considering running for Governor in 2022. According to Friday’s Dallas Morning News, “Beto O’Rourke, edging closer to challenging Gov. Greg Abbott, on Friday defended his vow to confiscate assault-style guns during the 2020 presidential race, warning that the Jan. 6 riot at the U.S. Capitol showed the danger of letting Trump-loving white supremacists own ‘weapons of war.’” Dave Workman’s article on O’Rourke’s possible candidacy can be found here.
2021 Congressional Activity
Discretionary spending for FY2022: The Biden Administration is asking Congress to increase spending for combatting “the Gun Violence Public Health Epidemic.” Part of these funds will be given to the states and localities to “improve background check systems” and “incentivize State adoption of gun licensing laws.”
HR4350, National Defense Authorization Act (NDAA) that has passed the House of Representativesincludes two amendments that are related to firearms’ ownership by members of the military. The first relates to military protective orders that do not contain due process requirements. The language reads,“A military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18.” The second amendment was initiated by Rep. Mark Green (R-TN) that requires only honorable discharges for anyone who is separated from the military after refusing to be vaccinated. Any dishonorable discharge from the military precludes that service member from acquiring or owning a firearm. The bill passed with 135 Republicans voting aye.
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
Various states will be pre-filing bills for the 2022 legislative session in the next few months. The following states will carryover 2021 legislation to 2022: Alaska, 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)
California: Owners of “Other” type firearms now classified as “assault weapons” who wish to continue their lawful possession in California without making any modifications must submit registrations by midnight, December 31, 2021. CRPA has set up a web page for Californians to ensure they understand the requirements, The Franklin Armory v. California DOJ case deals with this issue in the courts.
Colorado: City of Boulder: After Gov. Polis signed SB256 repealing the statute that preempted all firearms regulations to the state, we are now witnessing the results. Democrats in the city of Boulder are now proposing reinstating a ban on “assault weapons” that had been ruled illegal before the passage of SB256.
Florida: Bills are being prefiled in anticipation of the 2022 legislative session. Two bills, HB181 and SB334, would require a background check when purchasing ammunition. Additionally, anti-gun Representative Gary Farmer (D) has introduced three anti-gun bills: SB204, requiring all firearms sale to be done through an FFL, SB210, repeal current FL law that prohibits firearm registration and SB214, banning the sale and possession of so-called “assault weapons” and large capacity magazines.
Michigan: The House government Oversight Committee is considering HB5187 and HB5188. These two bills prohibit the Michigan State government from restricting Second Amendment rights during a declared state of emergency. During Governor Whitmer’s declared state of emergency for COVID-19, she failed to include firearms and ammunition retailers as essential businesses.
New York: Cam Edwards in bearingarms.com reported that Erie County Executive Mark Poloncarz vetoed a bill by the Erie County legislature that would have allowed the county to lower the minimum age for hunting with an adult hunter. Cam
Ohio: Last week the Ohio Senate passed SB185, that guarantees Second Amendment rights during a state of emergency. This bill will prohibit both local and state government from infringing on firearm possession, transportation, commerce, hunting and fishing. Also included is legal recourse for citizens whose rights are infringed.
Pennsylvania: The legislature is planning to reconvene by the end of September. A new bill HB1900, banning gun sales to anyone “whose name is included on the terrorist screening database” has been introduced. HB393, includes ammunition background checks in its dealer licensing requirements. 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, and HB364, destroying confiscated firearms.
Wisconsin: Bills can carry over from 2021 to 2022. AB498, restoring under-21 adults’ right to carry has been introduced.
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)
According to Jake Charles writing in the Duke Center for Firearms Laws SCOTUS has denied cert in 5 of the cases it considered in September and has held over ANJRP v. Grewal, a challenge to the NJ ban on magazines with a capacity over 10 rounds, and Young v. Hawaii, a challenge to Hawaii’s restrictive open Carry law. Mr. Charles writes, “I think ANJRP (a challenge to NJ’s ban on magazines holding more than 10 rounds) and Young (a challenge to Hawaii’s good-cause regime for open carry) look like they may be candidates for the Supreme Court’s further consideration about the Second Amendment’s scope.”
New York State Rifle & Pistol Assn (NYSR&PA) v. Bruen: The date for oral arguments has been set for November 3, which is less than two weeks hence. Amicus briefs can be found here. This case concerns the 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: The SCOTUS review on this case has been postponed until November 3. On August 2, 2021 W. Clark Aposhian filed a petition for a write 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. This case is similar to GOA v. Garland listed below.
Non-SCOTUS Federal cases
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 finally U.S. District Court Judge Marilyn J. Horan ruled that Robinson Township’s restrictive zoning ordinance violated the Second Amendment. Second Amendment founder Alan M. Gottlieb stated, “Government simply cannot use zoning restrictions to put a business they don’t like out of business.”
Todd Yukutake, et al., v. Clare E. Conners: On October 14 the state if Hawaii filed notice of appeal to Judge Seabrights’s decision. Two state of Hawaii firearms laws, requiring an individual to purchase a firearm within 10 days of obtaining a permit to acquire and requiring a gun owner to physically bring a firearm 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 August 16, 2021.
Heller v. District of Columbia: If this case looks familiar, Dick Heller has again taken the District of Columbia to court over its 2020 ordinance that “supplemented its ban on making a gun, by prohibiting even the import and possession of parts necessary for the manufacture of a firearm by outlawing what it pejoratively calls “Ghost Guns.” The case was filed in the US District Court for the District of Columbia.
Fahr v. San Diego: Immediately after the San Diego mayor Todd Gloria signed Ordinance O-2022-7, banning so-called: “ghost guns” Firearms Policy Coalition (FPC) filed a lawsuit and a motion for a temporary restraining order and preliminary injunction to block enforcement of the law in the United States District Court for the Southern District of California.
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 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.
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 over 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 for the plaintiffs 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
Baughcum, Jr. et al. v. Jackson, et al: a case in the US District Court for the Southern District of Georgia against a state ban against 18-21 year olds Second Amendment rights. The plaintiffs just filed a reply in support of summary judgement.
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.
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 freedom to carry a loaded firearm for self-defense outside their home. On April 16, 2021 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
Edmonds v. Bass: After the Washington Court of Appeals ruled earlier this year that the city of Edmonds ordinance was preempted by state statute, the city of Edmonds appealed to the Washington Supreme Court. Oral arguments have been scheduled for January 11, 2022.
Guns Save Lives, Inc. v. Zahra, Ali: On Nov. 9, 2012 Cook County, Illinois, the county where the city of Chicago is located, passed the Cook County Firearm Tax Ordinance No. 12-O-64. This ordinance imposed a $25 tax on the retail purchase of any firearm sold within Cook County. Three years later, the Cook County Board of Commissioners amended this ordinance to add an additional tax on the retail purchase of firearm ammunition. And for almost nine years the citizens of Illinois’ largest county by population (approximately 5 million residents) were subjected to local taxes on the purchase of items guaranteed under the Second Amendment and the Illinois Constitution.
On Thursday the Illinois Supreme Court in a unanimous opinion made it known that the Cook County Commissioners’ taxes were clearly unconstitutional. The justices wrote, “We agree that the ordinance impose a burden on the exercise of a fundamental right protected by the second amendment” and in so deciding quoted from the United State Supreme Court decision of 2010, McDonald v. City of Chicago: “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” Dave Workman’s article covers this case in great detail.
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, 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.”
