By Tanya Metaksa
What’s New—Biden-Harris Administration DOJ comments: Comments on “Frames & Receivers” close in 3 days, while comments on “Stabilizing Braces” close in 23 days. Over 130,000 comments received on stabilizing braces to date and over 143,000 received on frames and receivers. Don’t forget to send in comments: Republican members send letter on proposed BATFE regulations; Vote on David Chipman: CNN says Chipman nomination “nearing collapse”; New Hampshire: Gov Sununu vetoes SB141 and HB334; North Carolina: Guilford County–shooting range bill; South Carolina: HB3094 became law and is in effect on August 15; Judicial: Francisco v. Cooke–federal lawsuit challenging NJ law against carrying handguns for self-defense.
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 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 Garland was then-President Obama’s choice to replace Supreme Court Justice Antonin Scalia, 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: Although 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 against gun violence,” new allegations about David Chipman’s history of racism at the BATFE and a TV deal with a Chinese government station have been brought to light.
As a result, Senator Chuck Grassley, the former Chairman of the Senate Judiciary Committee and currently Ranking member, again asked Chairman Dick Durbin (D-IL) to hold more hearings about Chipman’s nomination to lead BATFE. On August 6 CNN published an article that started with the following sentence “President Joe Biden’s pick of David Chipman to serve as the head of the Bureau of Alcohol, Tobacco, Firearms and Explosive is nearing collapse, with members of the Senate Democratic Caucus withholding support and the chamber unlikely to hold a vote to advance the nomination before the August recess.”
As we have reported previously, Thereload.com published a copy of a letter written by former BATFE agents to Senator Durbin (D-IL) concluding that “David Chipman is the wrong person for that job, and brought us to the unenviable position of having to ask you reject Mr. Chipman’s nomination.” Additionally, the Trace, a Bloomberg supported anti-gun publication, has an article entitled “Biden’s ATF pick hangs by a Thread.” This article alleges that the vote is depending upon Senator Angus King (I-ME). If you live in a state with Democrat Senators contact them again and again, and if you live in Maine, contact Senator King.
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 almost 130,000 comments (most of them being negative) have been received by July 22. 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 (29 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 this Thursday, Aug. 19. According to the Federal Register more than 110,000 comments have been received as of August. 8, 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
Missouri Governor Mike Parsons (R) announced that he had pardoned Mark McCloskey and Patricia McCloskey, the St. Louis attorneys who defended their home by brandishing firearms on their front lawn when Black Lives Matter protestors broke down a gate and then trespassed on the private road next to their property. After the incident in which no shots were fired the St. Louis prosecutor, Kimberly Gardner, charged them with unlawful use of a weapon, a felony in Missouri. Gardner was replaced in the case and a new prosecutor then charged Mark McCloskey with misdemeanor fourth-degree assault and Patricia with misdemeanor harassment. These charges resulted in fines and loss of their firearms. Governor Parsons’ pardons remove the misdemeanor charges from their records. Mark McCloskey has announced that he is running for the U.S. Senate in 2022.
Oregon 2022 Ballot Initiatives: The petition process is alive and well in the Beaver 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 Congressional Activity
Republican members of the House Judiciary Committee sent a letter on August 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, entitled “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.
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. 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 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: The August recess ends on August 16. Now the Assembly will vote on SB264.Although a vote in the Assembly for AB1223, adding an additional 10% excise tax on handguns 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.
San Jose: In June the city council “mandated that gun owning residents carry insurance and pay into a public fund to cover gun violence costs.” However, to date the city attorney’s office has been unable to write a “defensible” ordinance.
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: Gov. Pritzker lost no time in signing HB562, making FOID cards more restrictive and harder to obtain. 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.
Massachusetts: Hearings were held during the last week of July. HB1570, legalizing ownership of suppressors has been introduced.Among many anti-gun bills introduced are HD135, requiring background check for private gun sales, 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, and SB942/HB1734, limiting gun purchases to 15 firearms during a 1-year period and only allow FFLs to sell firearms that can “micro-stamp” ammunitions as it is fired.
Michigan: Two pro-gun bills have passed the House: HB4030 and HB4498, together these bills reduce fees for Right-to-Carry permits.
New Hampshire: Gov. Sununu vetoed SB141, the bill that fixed delays during handgun purchases, and HB334, allowing for carrying of a loaded firearm on an Off-Highway Recreational Vehicle (snowmobile).
New Mexico: The New Mexico Gun Collectors Association who had been holding gun shows at the Albuquerque State Fairgrounds for the past four decades was notified verbally that their October 2021 show had been cancelled because the State of New Mexico will not allow gun shows at state-run facilities. According to NRA-ILA the person behind this ban is none other that Governor Michelle Lujan Grisham (D). In 2019 she signed SB8, a bill that required “universal background checks” that made all gun transfers at gun show require a criminal background check.
New York: Governor Andrew Cuomo resigned his position as Governor effecting August 24. Unfortunately, the legislature has already suspended their impeachment inquiry.
North Carolina: Guilford County–the County Board of Commissioners considered a proposed firearms ordinance, File # 2021-294, on August 5, 2021 that would have prohibited the “repetitive discharge” of firearms. However, before the hearing was held the ordinance was amended to provide ‘safety’ requirements for ranges and public shooting areas that required distances from highways and buildings as well as berms behind the target area. The ordinance has not been voted upon as of August 16, 2021.
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: 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.
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.
South Carolina: 90 days after Gov. McMaster signed HB3094,allowing handgun open carry and eliminating the $50 fee for the Right-to-Carry permit, it became law on Aug. 15.
Texas: The Texas legislature adjourned 30-day special session and will again meet for the 2nd special session in August.
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, but the agenda has not been published as yet.
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 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.
Non-SCOTUS Federal cases
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. Eighteen 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. 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, 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 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
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, 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
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.”
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, 2021 the court ruled “Respondents’ demurrer to the SAC is overruled. Respondents have 20 days to answer only.” The case can continue to trial.
