By Tanya Metaksa
What’s New– Federal Legislation: HR 1620, could be voted on at any time; State Legislation: 43 states begin their 2022 legislative sessions in January: California: Less than 2 weeks to submit registration for “assault weapons”; Ohio: SB215, Constitutional Carry passes Senate 23-8; New Jersey: Senate President Steve Sweeney not in favor of Gov. Murphy’s complete gun control package; Politics: Gov. Abbott (R-TX) has 15 point lead over O’Rourke; Judicial: Rupp v. Bonta: The Ninth Circuit is pausing this lawsuit until SCOTUS decides NYSRPA v. Bruen. Build Back Better Appears to have taken a fatal hit over the weekend with the announcement by West Virginia Sen. Joe Manchin that he cannot support the measure.
Politics
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.
Texas: A new Quinnipiac poll gives Governor Greg Abbott a 15-point lead over Robert Francis “Beto” O’Rourke. Abbott of has been serving as the 48th governor of Texas since 2015. He has been a strong supporter of the Second Amendment and under his leadership Texas has become a constitutional carry state. Next year he will be running for his third term as governor. On Nov. 19 former (Congressman, Senatorial candidate and Presidential candidate) Robert Francis “Beto” O’Rourke announced his candidacy for the Democrat nominee for Governor. O’Rourke has run as an avowed gun confiscator in his last two campaigns. In fact, in a 2019 Presidential debate he shouted, “Hell, yes, we’re taking your AR-15, your AK-47!” More information on O’Rourke’s anti-gun position is available here.
Florida: The current lineup for the Florida governor’s election next year is Governor DeSantis (R) versus at the moment a field of several announced Democrats: professional politician former Republican turned Democrat Rep. Charlie Crist, and current Agriculture Commissioner Nikki Fried are at the moment the leading candidates to oppose Republican Governor Ron DeSantis, who has been a stalwart supporter of the Second Amendment and is running for re-election. On the Sunday before Thanksgiving Fried announced she has joined a lawsuit opposing Florida’s firearms preemption statute, calling it “unconscionable that this law remains on the books.” Ammoland has a good article on Fried and preemption. Nikki has sent out an email where stating “As Florida’s only statewide elected Democrat, I’ve taken on the NRA, fought climate change, legalized hemp, confronted historic racism, and stood up for your rights.”
2021 Congressional Activity
H.R. 1620, Violence Against Women Act, includes anti-gun provisions that were highlighted by Sen. Steve Daines (R-MT) at the hearing on Dec. 8. On December 16 the following Senators announced an agreement on negotiations on this bill. The Senators were Democrats Diane Feinstein and Dick Durbin as well as Republicans Joni Ernst and Lisa Murkowski. Unfortunately, the “red flag” provisions have become stronger and funding has been added to NICS to go after those who have been falsely denied the ability to purchase a gun.
Senate activity: On December 2 anti-gun Senator Chris Murphy (C-CT) tried to pass H.R. 8 that passed the House early in 2021. His attempt was foiled when Senator Chuck Grassley (R-IA) objected to Murphy’s
“unanimous consent” request and then offered S. 1775, which would increase prosecutions and penalties for those that violate current gun laws. As expected Sen. Murphy objected and both bills did not get a vote.
Congressional letter to BATFE: 51 Republicans signed a letter to BATFE that expressed their fear that a proposed rule could violate the law that states the federal government may not create a federal gun registry.
Rep. Michael Cloud’s letter can be found here.
The Outdoor Recreation Act, S.3266, introduced by U.S. Senate Energy and Natural Resources Committee Chairman Joe Manchin (D-W.V.) and Ranking Member John Barrasso (R-Wyo.) on Dec. 2. Information on this bipartisan outdoor recreation bill can be found here.
H.R. 5376, President Biden’s Build Back Better Act that was passed by the U.S. House of Representatives included billions of dollars that are earmarked for “Community Violence” gun control. In fiscal year 2022 these programs would get $150,000,000 and would increase each year until it reached $500,000,000 in fiscal year 2025, 2026, and 2027. However, Sen. Joe Manchin’s weekend announcement appears to have torpedoed the measure, leaving House Democrats stunned.
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.
2022 Prefiled State Legislation
Various states will be pre-filing bills for the 2022 legislative session before the start of the 2022 legislative sessions. 43 states will begin their respective sessions during January. 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)
Alabama: HB6,constitutional carry, has been prefiled by Rep. Shane Stringer.
Florida: Bills are being prefiled in anticipation of the 2022 legislative session. Rep. Anthony Sabatini has profiled HB6007, allowing Right-to-Carry permittees to carry on Florida college/university campuses. 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.
2021 State Legislation
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 losing in March 2021 in the case titled Chambers v. City of Boulder, the city has stopped filing appeals that have been dismissed with prejudice by both the Colorado Supreme Court and the Colorado Court of Appeals. As of now so-called assault weapons and magazines able to hold more than 10 rounds are NOT illegal in Boulder.
Illinois: HB2791, increasing the number of communities that can apply for grant money for gun violence programs. This bill passed the Senate with no dissenting votes and the House 71-41. It allocates $100 million for this program. As State Rep. Rita Mayfield argued, “This is $100 million, this is not free money…it is $100 million that will be appropriated in January whether we have it or not.” Gov. J.B. Pritzker is expected to sign it.
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 Hampshire: The Senate Judiciary Committee has scheduled a hearing on two pro-gun bills: HB307 would allow anyone to file suit against local ordinances and HB197 allows individuals to defend themselves against unlawful attacks.
New Jersey: Gov. Murphy’s gun control push in the lame duck session has run into Senate President Steve Sweeney. Sweeney was quoted in the New Jersey Globe, ““We’ve got the second-most stringent gun laws in the country. That’s a good thing,” Sweeney said. “But continuing just to pass more bills because you’re trying to find something else to pass to say you did it, I don’t agree with.” Eight bills passed through the Assembly committees but only one was heard by the Senate Law and Public Safety Committee on Dec. 16. The one bill that was considered was S.372, requiring new NJ residents to register handguns they bring into the state. It passed the committee 4-2.The lame duck session that is currently in sessionl allows all those legislators that have been defeated to once again pass more gun control legislation. The governor’s package includes A.12890/S.103, banning .50 caliber firearms; A.3686/S.372, immediate gun registration for all new NJ residents; A.1292/S.1481, ammunition registration,and A.1098/S.112), microstamping of firearms. Additional bills that were passed on Dec. 13 by the Assembly Judiciary: A.5030/S2169, mandatory training to get an FID card, A5647/S.3757, mandatory storage requirements, and A.5787/S.3826, another microstamping on all new handguns.
New York: October 28 Gov. Hochul announced that she had signed a “legislative package” to fight a “gun violence epidemic.” This epidemic according to the press release was caused by the “scourge of ghost guns in New York communities.” The three bills were S.14A/A.163A, requiring the registration of unfinished frames or receivers and banning the sale of “ghost guns;” S.13A/A.266A, prohibiting the sale and possession of unfinished frames or receivers; and S.7152/A.6522, expanding the definition of a “disguised gun” to include toys.
Ohio: On Dec. 15 the Ohio Senate passed SB215, a constitutional carry bill. While ithe House passed its own version, HB227, by a 60-32 vote. Both bills maintain the existing Right-to-Carry law so citizens desirous of a permit may get one. 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.
Missouri: University of Missouri System Board of Curators passed a resolution that allows guns in vehicle on campus. The prohibition on open or concealed carry of firearms is still in effect. This change in policy was due to two cases: one brought by a university employee and the other brought by Missouri Attorney General Eric Schmidt.
New Jersey: Gov. Murphy’s gun control push in the lame duck session has run into Senate President Steve Sweeney. Sweeney was quoted in the New Jersey Globe, ““We’ve got the second-most stringent gun laws in the country. That’s a good thing,” Sweeney said. “But continuing just to pass more bills because you’re trying to find something else to pass to say you did it, I don’t agree with.” Eight bills passed through the Assembly committees but only one was heard by the Senate Law and Public Safety Committee on Dec. 16. The one bill that was considered was S.372, requiring new NJ residents to register handguns they bring into the state. It passed the committee 4-2.
Pennsylvania: Governor Wolf vetoed SB565, constitutional carry. The full Senate has passed SB448, strengthening the preemption law on a strict party line vote. SB448 strengthens preemption law by adding the ability of persons “adversely affected” by ordinances that are passed by localities may take the municipality to court. New bills: 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 still awaiting action. HB979, a pro-gun preemption bill, that was originally HB1066, has passed the House and is before the Senate Judiciary Committee. 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.
South Carolina: City of Conway: An ordinance was unanimously passed on first reading to prohibit open carry of firearms during public events and in the city government building.
Virginia: Gov. Ralph Northam, who leaves office in January 2022, has proposed a budget for Virginia that includes $27 million dollars to establish a “Center for Firearm Violence Intervention and Prevention at the Department of Criminal Justice Services.” Hopefully the new governor, Glenn Youngkin, and the newly elected legislature will ignore Northam’s attempt at more anti-Second Amendment efforts.
Wisconsin: Bills can carry over from 2021 to 2022. The Senate Committee on Insurance, Licensing and Forestry Committee voted 3-2 to pass SB516, a reciprocal carry bill and it also had a hearing onthe constitutional carry bill, SB619 but not votes were taken at that time.The Senate Committee on Judiciary and Public Safety held a hearing on two bills: SB584, allowing Right-to-Carry permittees to carry in a place of worship, and SB570, to protect firearms dealers, manufacturers, etc from frivolous lawsuits. The Committee did not vote on these measures during the hearing. 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)
New York State Rifle & Pistol Assn (NYSR&PA) v. Bruen: Oral arguments were held. You can read the transcript here and listen to arguments here. 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 not been held yet. On Aug. 2, 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
The Ninth Circuit Court of Appeals: Currently the Ninth Circuit has paused most of their Second Amendment cases while SCOTUS is in the process of deciding NYSRPA v. Bruen. That pause includes Rupp v. Bonta.
Duncan v. Bonta: (formerly Duncan v. Becerra) On November 30, 2021 the Ninth Circuit Court of Appeals, sitting en banc, reversed the opinion of both the district court and the three-judge panel of the Ninth Circuit. Both those judgements had held that the ban on so-called “large-capacity magazines” was unconstitutional. On Aug. 28, 2020 the California office of the Attorney General filed a petition for an en banc hearing on this case. CRPA President Chuck Michel responded to the reversal by saying, “We are truly disappointed that the Ninth Circuit en banc panel decided to go against the solid constitutional reasoning of other judges to strike down this win for gun owners. We will be appealing to the Supreme Court for a final determination because gun owners deserve to have someone fighting for them and their rights. The Second Amendment is a fundamental right, and it is time that courts stop treating that right like a second-class gift from government.”
According to the CRPA website, “the Duncan plaintiffs will petition for certiorari in the Supreme Court—with CRPA’s full and focused support.”
Heller v. District of Columbia: After Dick Heller filed his fourth legal case against the District of Columbia, challenging the city’s current law outlawing the manufacture of firearms within the district, the D.C. Attorney General recommended that the D.C. City Council modify the ordinance.As a result, the city council voted 12-1 to amend the law on Nov. 16 to allow the manufacture of firearms within the district. According to Heller the recent vote was an emergency measure, and the city still has to permanently repeal the original language.
N.J. and A.L. v. Sonnabend: Oral arguments in this case were held in November at the U.S. Court of Appeal for the Seventh Circuit. This case will decide whether student speech is covered by the First Amendment. Students in 2 different Wisconsin schools were denied their 1st Amendment rights when they wore clothing depicting firearm(s) to school. The District Court Judge William Griesbach ruled on May 3, 2021 that the 1st Amendment does not protect students’ rights to wear clothing in school that depicts firearms in a non-violent, non-threatening manner. The case was appealed on July 9. No time certain has been set for a ruling.
NRA v. Cuomo: This case is set for oral arguments on January 13, 2022.Filed in 2018 in the US District Court for the Northern District of New York alleges that Gov. Cuomo and NY Department of Financial Services (NYDFS) violated the First Amendment rights of the NRA. The Gov. and Maria T. Vullo (Chair of NYDFS) did so by sending “guidance” letters to banks and insurance companies that do business in New York State urging them to stop doing business with NRA.
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.
Ban on firearms for citizens ages 18-21 in federal court
Andrews v. McCraw: this lawsuit filed on Nov. 9 seeks to overrule NRA, Inc. v. McCraw in the Fifth Circuit Court of Appeals.
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.
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.”
State cases
Guns Save Lives, Inc. v. Zahra, Ali: Cook County Commissioners have reimplemented the gun and ammo tax and allocated all revenue to violence prevention programs and passed Cook County Firearm Tax Ordinance No. 12-O-64. The original litigants are now going back to the Illinois Supreme Court on the question of constitutionality of the new ordinance.
This original ordinance as well as the new 2021 ordinance imposes 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 (this is included in the 2021 ordinance). Then on Oct 21 in a unanimous opinion the Illinois Supreme Court 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.
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 Jan. 11, 2022.
