By Tanya Metaksa
What’s New—Federal: Army Corps of Engineers-allow firearms on lands and waters; Anti-gun Senators send letter to FBI and BATF; State Legislation: California: Ex parte Gun Violence Restraining Orders extended 90 days; Connecticut: adjourns; Florida: Agriculture Commissioner delaying Right-to-Carry Permits; Judicial: Rhode v. Becerra
Trump Administration
Army Corps of Engineers (ACE): Although President Trump is busy with the COVID-19 crisis, his administration is still moving forward on firearms issues. A proposed rule to allow visitors to possess and transport firearms on ACE water resource development project lands and waters, provided they are not prohibited by law from possessing firearms and the possession or transportation is otherwise in compliance with applicable laws has been proposed for the Corps of Engineers.
The Second Amendment meets COVID-19
President Trump’s Department of Homeland Security (DHS) has included the firearm and ammunition industry as essential critical services that should remain open during the COVID-19 pandemic. On March 28, DHS announced their Advisory Memorandum of Essential Critical Infrastructure Workers. That listed the firearms industry–retailers, distributors, manufacturing and ranges—as essential services. This single act has kept the firearms industry open and running as many states have referenced the federal guidelines in their documents regarding “essential services”.
Any state not listed below has either some form of “Stay-at-Home” executive order in place and lists “firearms stores” as essential services, references the federal DHS memorandum listed above or does not have any such order in place. Many of the states that have listed firearm and ammunition suppliers as being essential have not included ranges in that definition. Additionally, most retail establishments are limiting the number of person within their stores at one time. The states listed below are as accurate as can be determined at this time.
California: Gun stores/ranges have not been determined by Gov. Gavin Newsom to be “essential services” and thus are to be closed with the known exception of Culver City, Los Angeles County, and Shasta County. There is a lawsuit against Gov. Newsom that also includes the City of Los Angeles and the City of Burbank. Additionally, another lawsuit has been filed against jurisdictions in Northern California.
The following states have officially not listed firearms dealers as essential services or do not have state law that considers gun stores exempt from emergency closures: California, Massachusetts, New Mexico, New York, Oregon, and Washington.
Judicial
COVID-19 lawsuits
California-California Governor Gavin Newsom signed an executive order shutting down many businesses, but he left the decision on firearms retailers and gun ranges up local officials: Sheriffs and Public Health Officers. In doing that there has been a great deal of misinformation, changing of decisions by officials and general confusion. And a result several lawsuits have been initiated to first institute temporary restraining orders (TRO) to stop the closures and if the TRO is not initiated, then to have a full blown court case that could take years. In Los Angeles this comedy of errors was played out during the four weeks from March 4 to April 6 when the Brandy, et al. v. Los Angeles Sheriff Alex Villanueva et. al was litigated concerning a TRO. Unfortunately, the United States District Court on April 6 denied the application for a TRO.
In Northern California another lawsuit, Altman, et al, v Santa Clara County, et al, was filed on March 31, 2020. A TRO in this case was denied on April 10 and scheduling for a preliminary injunction will be held on May 13, 2020.
A pre-litigation demand was also sent to Culver City, CA in late March and on April 2 the Culver City Council voted unanimously to allow firearm retailers to remain open.
A lawsuit, McDougall, et al. v. County of Ventura, CA, et al., was filed on April 14.
A pre-litigation demand was sent to California Attorney General Xavier Becerra regarding unlawful firearm and ammunition delays on April 14.
Georgia-Walters v. Kemp:
On March 14, Judge Keith Wood, a Probate Judge in Cherokee County, Georgia declared that Weapons Carry Licenses “are deemed non-essential and will not be accepted during the pendency of the judicial emergency.” As a result the Second Amendment Foundation, the Firearms Policy Coalition and Lisa Walters filed a complaint on April 16, 2020 for injunctive and declaratory relief based on constitutional rights.
Massachusetts-McCarthy, et al. v. Baker, et al:
“This lawsuit challenges the Defendants’ acts of eliminating all lawful channels of access to constitutionally protected arms and ammunition by mandating the closure of all businesses that sell firearms and ammunition to the consumer public.” On March 24, Governor Baker designated various businesses as “essential” he did not include firearms and ammunition retailers. On March 31 Gov. Baker revised the list to include workers “supporting the operation of firearm or ammunition product manufacturers, importers, and distributors.” On April 2, Jamison Gagnon, Commissioner of the Department of Criminal Justice Information Services, issued a directive that he would assist the enforcement of Gov. Baker’s COVID-19 Order No. 19 by targeting firearms dealers with audits of firearms sales.
New Jersey-Kashinsky v. Murphy:
On March 26 a motion for an injunction was filed in federal court in New Jersey as a result of the closure by Governor Philip D. Murphy and State Director of Emergency Management and Superintendent of the New Jersey State Police Patrick J. Callahan of “any and all means law-abiding private citizens to obtain firearms in New Jersey.” The complaint goes on to say that this is not a situation where all retail establishments have been closed as the State has permitted retail sellers of other products such as alcohol, marijuana and office supplies to remain in business. Gov. Murphy by executive order on March 21 listed those business that were deemed “essential” and firearms dealers were not included in the lengthy list of essential service. On April 1, 2020 Gurbir S. Grewal, the Attorney General of New Jersey, wrote a letter that stated, “Colonel Callahan, in his capacity as State Director of Emergency Management, issued Administrative Order No. 2020-6 (“A.O. 2020-6”), which supplements Governor Murphy’s Executive Order No. 107. See Exhibit A. A.O. 2020-6 adds Federal Firearms Licensees (“FFLs”) to the list of essential retail businesses that may remain open, subject to specified requirements, during the ongoing public health emergency presented by the spread of SARS-CoV-2 — the “coronavirus.” Thus gun stores can remain open as long as they comply with the the Covid-19 guidelines for remaining in business. A comprehensive article written pre-settlement was published in Reason.com by Eugene Volokh.
New Mexico-Aragon v. Grisham:
In response to the COVID-19 pandemic Gov. Grisham closed gun stores and shooting ranges. As a result, on April 10, the National Rifle Association (NRA), The Second Amendment Foundation, New Mexico Shooting Sports Association, the Firearm Policy Coalition, other pro-gun advocacy groups and firearms business filed a federal lawsuit stating that “New Mexico’s government cannot suspend the Constitution and Americans’ individual freedoms.”
North Carolina-Stafford, et al. v. Wake County:
Wake County Sheriff Gerald Baker announced on March 24 the temporary suspension of pistol purchase permits through April 30, with 755 permits pending on that date. On March 29, a letter was sent to the Wake County Board of Supervisors announcing a complaint being filed against Sheriff Baker.
Pennsylvania-CRDF, et al., v. Pennsylvania Governor Tom Wolf:
This lawsuit seeks an injunction against Gov. Tom Wolf’s COVID-19 order of March 19, shuttering all businesses that are “not Life Sustaining.” Although the Pennsylvania Supreme Court reached a divided opinion that denied the injunction, Gov. Wolf took notice of Justice Wecht’s suggestion of an “accommodation” in allowing firearms retailers to conduct business. Although Gov. Wolf did not publicly announce a policy change regarding firearms dealers, but included the change in an updated list of “Life Sustaining Businesses”—Except that firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law, subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons; 2) the dealer will comply with social distancing, sanitization of applicable area between appointments, and other mitigation measures to protect its employees and the public.”
Non-Covid-19 2nd Amendment lawsuits
Rhode v. Becerra:
The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. three gold medals, one Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez. Thus all the restrictions on purchasing ammunition in California are in effect again. Further information on the original ruling can be found here.
Ross v. Melekas:
The Second Amendment Foundation, the Connecticut Citizens Defense League and two individual plaintiffs are suing the Connecticut enforcers of the magazine limitation on the basis of the Second and Fourteenth Amendments to the U.S. Constitution.
City of Philadelphia v. Rashad T. Armstrong:
In 2018 Larry Krasner, the newly elected Philadelphia District Attorney, decided to enforce a 2008 Philadelphia ordinance requiring 24-hour notice when a firearm was found to be missing. The first person to be charged with failure to report a lost or stolen firearm is Rashad Armstrong whose handgun was found in a traffic stop in 2018. On March 6, 2020 Armstrong’s attorney, Joshua Prince, argued that the Pennsylvania preemption statute prevents Philadelphia from enacting their own firearms ordinances.
Duncan v. Becerra:
Oral arguments are scheduled for April 2. Challenges Section 32310, which states that persons not only cannot use magazines holding 10 or more rounds, but cannot “keep property they lawfully acquired.” On Mar. 29, 2019 Judge Benitz invalidated the 10-round limitation on magazine capacity, by ruling “California Penal Code section 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.” But on April 5, 2019 the restrictions against magazines that hold 10 or more rounds were back in place, and “For those persons who have manufactured, imported, sold or bought” such magazines between March 29, 2019 and 5:00 pm April 5, 2019 they may possess them.
Landmark Firearms LLC, et al v. Colonel Robert Evanchick:
See the background information under Pennsylvania legislation. On Dec. 20, 2019 Landmarks Firearms, US Rifle petitioned to stop the Commissioner f Pennsylvania State Police (Robert Evanchick) enjoined from implementing the new PA policy that states an unfinished receiver meets the definition of “firearm.” After a January 21, 2020 hearing on the application Commonwealth Court Judge Kevin Brobson found that the PA State police had violated the due process rights of Pennsylvania residents and businesses and issued an injunction is until the final disposition of the Petition for Review, including appeals has been reached.
Thomas, et.al. v. Illinois State Police:
The Second Amendment Foundation and Illinois State Rifle Association have sued the Illinois State Police in federal court over the agency’s sluggish handling of Firearm Owner Identification (FOID) card applications and renewals. For the story.
Jones, et al v. Becerra:
This lawsuit is challenging the “California Age-Based Gun Ban” that prohibited adults between the ages of 18 and 20 from acquiring any firearm. United States District Judge denied the applications from three anti-gun groups Everytown, Giffords Law Center and Brady from filing amicus briefs as their “partisanship is apparent.”
City of Kansas City, MO v. Jimenez Arms, Inc., et al:
Kansas City, MO is suing a number of firearms companies for supplying firearms to James Samuels, a former Kansas City Fire Department Captain who was charged and is being prosecuted for federal gun crimes. This suit is being supported by Everytown Law, part of Michael Bloomberg’s Everytown for Gun Safety.
Ballot initiatives-2020
Oregon:
Afterthe National Rifle Association (NRA) challenged Initiative Petition 40, requiring all firearms to be locked with a trigger locking device when not carried, a new ballot title has been written, it reads: “Requires locking firearm/using locked storage (exceptions), reporting loss, supervising minors’ use. Penalties/strict liability.”
Proponents have until July 2 to gather 112,020 signatures to put IP40 on the November 2020 ballot. Given the coronavirus closures, several media outlets have prognosticated that it is highly unlikely that the signature gathering process will be successful.
2019-2020 Gun Control bills in the U.S. Congress
Anti-gun Senators send letter to FBI and BATF: Senators Murphy (D-CT), Blumnethal (D-CT) and Markey (D-MA) sent a letter to the FBI and the BATF requesting these agencies to adopt very stringent policies concerning gun sales including suspending all delayed firearms transfers indefinitely and store firearms transfer records for more than the legally required 90 days, which could lead to a gun owner registry. The letter can be found here.
H.R. 5717-the most far reaching gun control proposal has been introduced by Rep. Hank Johnson (D-GA). It is basically the wish-list of all the gun controllers in the world without completely banning firearms. A federal gun license with background checks and a 7-day waiting period, banning every semi-automatic, banning every magazine with over 10-round capacity; red flag laws; 30% additional tax on firearms and 50% tax on ammunition, draconian safe storage requirements, suppressor bans, one-gun-a-month restrictions, and more gun-free zones.
Awaiting action in the U.S. Senate: In February 2019 the House passed two extreme gun control measures—H.R. 8, a universal background check bill, and H.R. 1112, a bill to extend the time from 3 days to 10 days if a prospective buyer is not cleared in a NICs check. These bills are still awaiting action in the U.S. Senate and could be incorporated into any new legislation that the House passes.
State Legislation
All state legislatures with the exception of Montana, Nevada, North Dakota, and Texas will be in session in 2020
The states of Connecticut, Florida, Idaho, Indiana, Kentucky, Maine, Maryland, New Mexico, Oregon, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia and Wyoming have adjourned.
The following states have postponed their legislative sessions: Alabama, Arizona, California, Colorado, DC, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Vermont, Wisconsin
Alabama:
The Speaker of the House Mac McCutcheon wrote to the Alabama Sheriffs Association (ASA) that he was in support of HB39, a lifetime Right-to-Carry Permit bill. The ASA has been actively lobbying against this bill. The Senate Committee for the Judiciary passed SB47 6-3, creating a statewide uniform system of lifetime Right-to-Carry Permits at a cost of $200. If an applicant is over 65, the fee is $150.
California:
Attorney General Xavier Becerra has extended Ex parte Gun Violence Restraining Orders to 90 days from the current 21 days.
Connecticut:
The Connecticut legislature has adjourned.
Florida:
When the Florida concealed carry statute was implemented the legislators wanted to ensure that the implementation of the license to carry statute was not within the state’s criminal justice system, therefore it was assigned to the Department of Agriculture and Consumer Services. However, in 2018 the voters of Florida elected Democrat Nikki Fried to be the Agriculture Commissioner. She has turned out to be an avowed anti-gun political hack that sees this position as a stepping stone to bigger state positions. Using the the COVID-19 crisis as an excuse Fried has delayed the processing of applications. On April 21, 2020 Florida Attorney General Ashley Moody wrote a letter to Fried saying: “It is imperative that government continue to take actions that allow Floridians to feel safe and secure in these uncertain times, protect Floridians’ constitutional rights, and avoid potential costly litigation that can easily be avoided. I request that you resume taking online applications, confirm that your agency is processing concealed carry permits and end any delay approving applications going forward.”
Illinois:
The General Assembly has postponed its legislative session until further notice. The Illinois State Police announced new rules on their Facebook page. Once you get to that page click on the Posts page and search for FOID in the search box.
Indiana:
Normally a Second Amendment friendly legislature but SB16, which would prohibit juveniles who used a gun in a crime and were punished to be denied their Second Amendment rights until they reached the age of 26 or 28, passed the Senate 43-6.
Massachusetts:
The Joint Committee on Public Safety and Homeland Security’s action deadline of Feb. 5 to act on any of the bills on its agenda has been rescheduled to May 5, 2020. And it will probably be pushed back due to the COVID-19 Pandemic.
New Hampshire:
The General Assembly has suspended its legislative session until at least May 4.
New Jersey:
When the Senate Law and Public Safety Committee held a hearing Feb. 24 on S120, increasing the penalty for negligent gun storage, and S746, denying persons who have been convicted of “animal cruelty” from possessing a firearm, there was not a quorum and those bills were not enacted. However, they are still viable.
Ohio:
Gov. DeWine signed HB197, a bill that includes an amendment to address Right-to-Carry Permit expirations extending the expiration date of for 90 days. Ohio Attorney General David Yost has stated that he is developing a database for the listing of stolen guns. Two bills, SB223, banning bump stocks and high capacity magazines, and SB203, regulating firearms transfer at gun shows, were brought up before the Senate Government Oversight and Reform Committee but no votes were taken. HB178, a constitutional carry bill, was approved in the House Federalism Committee on June 26. It has been re-referred to the Criminal Justice and Rules and Reference Committees on June 28 and June 30. In the past year 69,375 new carry licenses and almost 100,000 renewals were issued.
Pennsylvania:
HB2344, instituting a permit to purchase ammunition, has been referred to the House Judiciary Committee, to be added to four anti-gun bills awaiting action: HB2076, a person’s driver’s license may be revoked if that person’s license to carry a firearm expires or is revoked; HB2077, a mandatory safe storage of firearms bill with penalties; HB2078, waiting period prior to possession of a “semi-automatic assault rifle”; and HB2216, banning the sale of toy guns that are not vibrant colors.
Wisconsin:
The legislature is meeting remotely. SB822, allowing persons with Right-to-Carry Permits to carry in churches, is awaiting action by the Senate Committee on Insurance, Financial Service, Government Oversight and Courts.
