By Tanya Metaksa
Latest developments— Federal legislation H.R. 5087, Political: Alabama, Oregon, Judicial US Supreme Court; Young v. State of Hawaii; Thyng, et. al v. City of Seattle; Defense Distributed; Duncan v. Becerra; Politics: Alabama; State Legislation: Illinois, Massachusetts, New Jersey; Virgin Islands
115th Congress (2nd session)
H.R. 2, The Farm Bill, passed the House of Representatives on a 213-211 vote. The Voluntary Public Access and Habitat Incentive Program, that is the only federal program aimed at opening private land to public access including hunting, received a 25% increase in funding. However, there were long term cuts to conservation that were also included. S. 3042, the Senate Farm bill, is still being considered in the Senate.
H.R. 5087, The Assault Weapons Ban of 2018, has been introduced with 174 anti-gun Democrats signing on. This ban is so broad and poorly written that 99% of long guns would probably be eliminated, including the Glock18.
Judicial
The US Supreme Court: On June 27, 2018 Justice Anthony Kennedy announced that he would be retiring from the Supreme Court effective July 31, 2018. On July 9, 2018 President Trump announced his nomination for Justice Kennedy’s seat, Judge Brett Kavanaugh of the US Court of Appeals for the District of Columbia Circuit. This is Trump’s second nomination for a Supreme Court Justice and Kavanaugh is another advocate for gun owners and those that believe in a strict constructionist view of the Constitution. A growing chorus from liberal spokespersons from Governor Andrew Cuomo (D-NY), the Congressional Black Caucus, Senator Chuck Schumer and the Brady Campaign are urging the US Senate to block Kavanaugh’s nomination because of his position on gun issues. In the Heller v. District of Columbia, 670 F. 3d 1244 – Court of Appeals, Dist. of Columbia Circuit 2011, he authored a dissenting opinion that stated, “Whether we apply the Heller history- and tradition-based approach or strict scrutiny or even intermediate scrutiny, D.C.’s ban on semi-automatic rifles fails to pass constitutional muster. D.C.’s registration requirement is likewise unconstitutional.
Young v. State of Hawaii: George Young, a Hawaii native who served in the US Army and was a law enforcement officer, was applied and was turned down for concealed carry and open carry licenses by Hawaii County filed a federal lawsuit challenging the state’s laws pertaining to carrying firearms. His complaint was dismissed by in the US District Court for the District of Hawaii. He appealed to the US Court of Appeals for the Ninth Circuit. On July 25, 2018 The Ninth Circuit in a 2-1 decision reversed the District Court dismissal stating, “The Second Amendment does protect a right to carry a firearm for self-defense
Thyng, the Second Amendment Foundation and National Rifle Association of America v. City of Seattle: The City of Seattle passed an ordinance requiring gun owners who have their firearms stolen, lost or misplaced to 1.) report the gun disappearance with a personal visit to the police station, 2.)The gun owner could be fined up to $500 for failure to store the firearm responsibly, 3.)If a minor or prohibited person touches the missing firearm, the original owner could be fined $1,000, 4.)If an injury, death or crime is committed with the missing firearm, the original owner could be fined up to $10,000. The suit maintains that the City of Seattle is prohibited from adopting gun regulations that exceed state laws—preemption.
Defense Distributed, et. al v. US Department of State: In 2013 Cody Wilson made a fully 3-D printed handgun and then took it to a gun range in Texas where he fired a .380 caliber bullet. The gun functioned perfectly, so he drove back to Austin and uploaded the instructions for the gun to his website, Defcad.com.
It didn’t take too long for people to download those blueprints. According to www.wired.com, those instructions were downloaded more the 100,000 times in the days following the firing of his handgun. Within a week the US Department of State sent him a letter saying, “Until the Department provides Defense Distributed with the final CJ determinations, Defense Distributed should treat the above technical data as ITAR-controlled. This means that all such data should be removed from public access immediately.” ITAR is the International Traffic in Arms Regulation that defines the US Munitions List (USML) which was created by the State Department.
Although Wilson removed the offending material from his website, its printable instruction for manufacturing guns had already spread to websites across the globe including Pirate Bay and other underground web sites. In the five intervening years those blueprints have evolved and multiplied on websites across the internet.
On May 6, 2015 Defense Distributed and Second Amendment Foundation, Inc. v.US Department of State, et al was filed in the US District Court for the Western District of Texas. The principle argument of the case was that the State Department ban on publishing the blueprints constituted prior restraint of a First Amendment right. In September 2016 the Fifth Circuit Court of Appeals ruled 2-1 against Defense Distributed. The decision read:
Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.
However, the dissenting Judge, Edith Jones, wrote her own opinion:
In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, “The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis….” The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data.
In November 2016 the plaintiffs filed a petition to the Fifth Circuit Court for an en banc rehearing of the injunction request that had been denied by the three judge panel. That petition was rejected by a 9-5 vote in March 2017. The plaintiffs then filed a petition for a hearing before the US Supreme Court (SCOTUS). In January 2018 SCOTUS refused to take the case.
In May 2018 the Trump administration published new regulations reforming ITAR regulations. The Trump proposal would change the regulations in two ways. First, firearms that were .50 caliber or less and were not fully automatic would no longer be included in the USML and thus would no longer be covered by ITAR export controls. Second, the items no longer on the USML would be controlled by the Department of Commerce instead of the State Department.
As a result of these proposed changes, the State Department revisited the Defense Distributed case. Since the firearms that were considered in the original State Department letter were no longer covered by ITAR, the plaintiffs and anyone else may publish 3D blueprints of such firearms. However, publishing 3D blueprints of firearms that are still under ITAR is still prohibited.
On July 26, 2018 three gun ban groups, The Brady Center to Prevent Gun Violence, Everytown for Gun Safety and Giffords Law Center, jointly filed an emergency motion for a temporary restraining order against Defense Distributed’s right to post and sell plans for 3-D printed firearms. The next day, July 27, US District Judge Robert Pitman dismissed the request for a temporary restraining order by saying these groups failed to prove they were a legitimate party to the case.
Duncan v. Becerra, 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 June 13, 2017 a motion for a preliminary injunction was filed and on June 29 Federal Judge Benitez, granted the injunction stating, “If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property. That is a choice they should not have to make. Not on this record.” The decision was appealed to the United State Court of Appeals for the Ninth Circuit. On July 17, 2018 that Court affirmed the decision of Federal Judge Benitez that the injunction against the state of California’s plan to ban the possession of magazines with a capacity greater than 10 rounds. California is can still appeal this ruling to the full Ninth Circuit who could overrule the District Court and then the case might be before the US Supreme Court.
SAF, Calguns Foundation, Firearms Policy Coalition, Firearms Policy Foundation v. California: During the week of June 25-30, the statutory registration deadline for firearms registration, the California DOJ’s Firearms Application Reporting System (CFARS) was largely inaccessible to the public. The lawsuit seeks to prevent the CA Department of Justice from enforcing the law.
Village of Deerfield, IL: [1] The Village of Deerfield, IL passed Ordinance 0-18-06 on April 2, 2018, banning “assault weapons”—a term defined by the ordinance. The Second Amendment Foundation, the Illinois State Rifle Association and Daniel D. Easterly filed suit in the Circuit Court of the Nineteenth Judicial Circuit of Illinois. The basis of this suit is that the issuance of such an ordinance is preempted under current Illinois law. [2] Guns Save Lives and The NRA Institute for Legislative Action have announced another suit. A temporary restraining order issued by the Nineteenth Judicial Circuit Court for Lake County, IL has temporarily stopped the Village of Deerfield from enforcing the ordinance.
National Shooting Sports Foundation Inc. v. State of California: Only in California can the legislature pass a law requiring the sale of an item that is impossible to manufacture. In 2007 the legislature passed a law decreeing that only guns could be sold that (1)had the make, model and serial number imprinted in two or more places internally and (2) were required to also imprint this information on each cartridge case that was fired. Any new gun that failed to meet these requirement was deemed “unsafe.” The National Shooting Sports Foundation (NSSF) and the Sporting Arms and Ammunition Manufacturers Institute (SAAMI) brought suit to stop enforcement of the law. The plaintiffs alleged that no semiautomatic pistol could be manufactured to meet these requirements. In 2017 the California Court of Appeals directed the plaintiffs to present evidence of the impossibility of following the requirements, because a section of California law “never requires impossibilities.” In late June, however, a panel of the California Supreme Court ruled that using the “impossibility” defense could not be used to invalidate the 2007 law.
Boulder, CO Ordinance 8245: Two lawsuits have been filed since the City of Boulder CO banned the ownership of “assault” weapons, high capacity magazines and raised the minimum age for firearms possession to 21. Caldara et al v. City of Boulder and Chambers, et.al v. City of Boulder.
Association of New Jersey Rifle & Pistol Clubs, Inc., et. al. v. Gurbir Grewal, et. al: NRA-ILA announced its support for this lawsuit to halt the enforcement of New Jersey’s ban and required disposal of previously owned “high capacity” magazines.
Minnesota Voters Alliance et al V. Mansky et Al: The US Supreme Court (SCOTUS) took issue with a Minnesota law that prohibited the wearing of apparel that supported a “political” concept. SCOTUS upheld the prohibition of apparel that supported a candidate or a party, but under the First Amendment rejected an arbitrary enforcement of “political” speech.
NRA v. Cuomo: Filed 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.
Workman, et al v. Healey: After the MA AG Maura Healey on July 20,2016 announced an “enforcement notice” on firearms that had been sold in the state since the year 2000, rewriting the MA statute that dealt with banned rifles and magazines, a group of individuals and corporations filed the suit in the US District Court for the District of Massachusetts. Unfortunately, Judge William G. Young’s decision upheld the action of the AG Healey and stated, “Massachusetts is free to ban these weapons and large capacity magazines.”
National Rifle Association of America, Inc. v. Bondi: On Mar. 9 the National Rifle Association (NRA) announced that it had filed suit against Florida’s newly enacted law that bans citizens between the ages of 18-21 from purchasing any firearms. The suit was filed in the US District Court for the Northern District of Florida.
New York State Rifle & Pistol Association, Inc. et al v. Beach et al: The NY State association of the NRA and Robert Nash filed a lawsuit in federal court on Feb.1 against state Supreme Court Justice Richard C. McNally, Jr., who rejected Nash’s application for a Right-to-Carry permit.
Political: Primary Elections & Initiatives
Grades are courtesy of NRA-PVF
Alabama:
In the July 17 run-off Republican primary election the NRA-PVF endorsed Attorney General candidate Steve Marshall beat incumbent AG Troy King 62%-38%.
Alaska:
The Primary elections will be held Aug. 21: US House at Large: Don Young (R)
Florida:
The Primary elections will be held Aug. 28. Candidates for Governor: Adam Putnam (R) A+, Ron DeSantis (R) A; Attorney General: Frank H. White (R) A+, Ashley Moody (R) A; Commissioner of Agriculture: Matt Caldwell (R) A+ endorsed. Endorsed Congressional Candidates: District 1-Matt Gaetz (R); District 3-Ted Yoho; District 7-Mike Miller (R); District 17-Greg Steube (R); State Senate: District 20-Tom Lee; District 25-Belinda Keiser; State House: District 1-Rebekah Bydlak; District 2-Alex Andrade; District 10-Chuck Brannan; District 11-Cord Byrd; District 15-Wyman Duggan; District 22-Charlie Stone; District 37-Ardian Zika;District 47-Stockton Reeves; District 56-Jeff Mann; District 64-James Grant; District 83-Sasha Dadan; State Attorney District 20-Amira Fox; Sheriff Jefferson County-Mac McNeill
Oklahoma:
Attorney General: Michael J. Hunter; State Senate: District 10-Amber Roberts; District 30-Lori Callahan; District 36-Bill Day
Oregon:
Initiative Petition IP43, banning so-called “assault weapons” and high capacity magazines, was the subject of a Oregon Supreme Court challenge filed on June 14, 2018 by the Oregon Hunters Association and the National Rifle Association. The Oregon Supreme Court ruled on June 27 that such terms as “assault weapons” and “large capacity magazines” were misleading and that the Oregon Attorney General had five days in which to modify the title and resubmit. The July 6, 2018 deadline for getting 88,000 signatures has past thus IP43 will not be on the 2018 November Ballot. Promoters for Initiative Petition IP44, mandating that all firearms be locked with a trigger-locking device and firearms owners would be subject felony convictions if the firearm was stolen or a minor gained access to the firearm, have given up their effort to get it on the 2018 ballot.
Washington:
Another anti-gun ballot initiative, 22-pages long, includes raising minimum age for gum purchase to 21, enhanced background checks, safe storage crimes and many other restrictions, is seeking signatures to get on the 2018 ballot.
Wisconsin:
The Primary elections will be held Aug. 14: US Senator: Leah Vukmir (R); Congressional Candidates: District-5: Jim Sensenbrenner.
Wyoming:
The Primary elections will be held Aug. 21:US Senator: John Barrasso (R); US House at Large: Liz Cheney; Auditor-Nathan Winers; Office of the Treasurer-Curt E. Meier; State Senate: District 1-Ogden Driskill; District 3- Cheri E. Steinmetz; District 5-Lynn Hutchings; District 15-Paul Barnard; District 21- Bo Biteman; State House: District 7-Sue Wilson; District 10-John C. Eklund; District 12-Clarence L. Styvar; District18-Scott Heiner; District 19-Danny Eyre; District 29-Mark S. Kinner; District 30-Mark Jennings; District 33-Jim R. Allen; District 37-Steve M. Harshman; District 52-William H. Pownall; District 56-Jerry A. Obermueller; District 57-Chuck Gray; District 58-Charles H. Schoenwolf
State Legislation
Montana, Nevada, North Dakota, & Texas were not in session this year. The following states have adjourned: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming.
California:
The legislature is in recess until August. AB2382, a bill requiring anyone selling firearms’ part to become a dealer by Jan 1, 2023, passed the Senate Public Safety Committee on a 5-2 vote, and SB1177, limiting the purchase of any firearm to one gun a month, was passed by the Assembly Public Safety Committee. In the Assembly Water, Parks and Wildlife Committee SB1311, an annual sportsmen’s license that includes both hunting and fishing licenses in a single license, and SB1485, banning the import, sale and possession of ivory products, were passed. In the Senate Veterans Affairs Committee AB986, reducing hunting and sport fishing licenses for veterans, passed. On June 19: In the Senate Public Safety Committee and the Assembly Public Safety Committees passed: AB3 that has already passed the House has been amended to prohibit persons under the age of 21 to purchase firearms or ammunition, AB2888, expanding the list of persons who can file gun violence restraining orders, SB1100, expanding the one gun a month restriction to long guns, and SB221, prohibiting the sale of firearms and ammunitions at the Cow Palace after Jan. 1, 2020, were ordered to be re-referred to Appropriations Committee and then passed. The Senate passed SJR24, urging Congress to reinstitute the “assault weapons” ban and it now goes to the Assembly Public Employees, Retirement and Social Security Committee. The Assembly and the Senate Natural Resources Committee passed: AB986, reduce hunting license fees for veterans, and AB2151, reducing the cost of youth hunter licenses. The Assembly and the Senate Public Safety Committee passed AB2103, expanding the training requirement for carry permits. The Senate and the Assembly Public Safety Committee passed SB1382, expanding vehicle storage options for firearms in pickup trucks and utility vehicles. The Assembly Revenue and Taxation Committee passed AB2497, a California Agriculture Day bill that was amended with a new state tax on firearms and ammunition to pay for school counselors and safety officers. AB3199 has been amended by adding banning firearms as raffle prizes for charitable organizations and was referred to the Assembly Public Safety Committee.
Connecticut:
The Connecticut legislature has adjourned. Gov. Dannel Malloy signed HB5542, banning components that accelerate the rate of fire of a semi-automatic rifle.
Delaware:
The Delaware legislature has adjourned. Gov. John Carney signed HB330, banning the sale and possession of firearms to anyone under 21 years of age.
Florida:
The news media in Florida attacked Commissioner of Agriculture Adam Putnam for allegedly failing to “review national background checks” on applicants for concealed weapons permits for more than a year. Turns out the headlines exaggerated the problem. After careful examination by USF Executive Director Marion Hammer the truth has been revealed. All background checks through the Florida Criminal Information Computer system (FCIC) and the National Instant Check System (NICS) were done. Of the 350,000 applicants that were processed only 365 were disqualified. The employee did not stop those 365 names from being processed as qualified. The employee was subsequently fired and 291 applicants had there licenses suspended.
Illinois:
Gov. Bruce Rauner signed SB3256, creating a new state registry of firearms transfers, and HB2354, allowing family or law enforcement to petition a court to seize a person’s gun without due process. He announced that he would veto SB337, another dealer licensing bill. HB1468, requiring a 72-hour waiting period prior to the delivery of an “assault weapon” (new definitions) was vetoed by Gov. Rauner. HB1465, infringing on Second Amendment rights banning firearms, and magazines, and the ability of young adults to purchase firearms and HB1467, repealing the firearm preemption law in IL, have passed the House of Representatives and the Senate, but need another vote on concurrence in the House. House Amendment 1 to HB1470 to institute a one-handgun-a-month purchase limitation is awaiting action in the Rules Committee. The Senate Judiciary Committee passed Senate Amendment 1 to SB2343, increasing the penalty to a non-probational felony for possessing, manufacturing, carrying certain firearms accessories and increasing the penalty even further when these accessories are attached to a firearm, and SB2314, repealing the Illinois firearm preemption statutes. These bills now are awaiting a vote in the Senate. HB1469, a bill dealing with sexual exploitation of children has been amended with a ban on magazines with a capacity of more than 10 rounds in the House Judiciary Committee..
Massachusetts:
HB4517, is the new number for an omnibus anti-Second Amendment bill It includes both HB3610, allowing firearms to be seized without due process, and SB2376, requiring “electronic” stun guns to fall under the current firearms laws has been passed in the House.
Michigan:
A Constitutional Carry group of bills: HB4416, 4417, 4418 and 4419. HB4554, removing the current pistol registration requirement, have passed the House and are awaiting Senate action. SB0527, guaranteeing that persons who become foster parents do not lose their Second Amendment rights, and SB366, allowing provisional Right-to-Carry permits for those persons 18-20 years of age have passed the Senate.
Mississippi:
In Harrison County Sheriff Tony Peterson has posted “firearms prohibited” signs at the Harrison County Courthouse and the Attorney General sent him a letter saying the signs are illegal and must be removed within 30 days. Sheriff Peterson has acknowledged the letter and said Sheriff’s Office attorneys are reviewing it.
New Hampshire:
HB1749, A bill seeking redress for towns that prohibit or regulate firearms in violation of the preemption statute has been introduced, has been referred to interim study for examination.
New Jersey:
Gov. Phil Murphy has signed S2259, instituting “extreme risk” protection orders; S102, banning magazines with a capacity greater than 10 rounds; S160, giving “health professional” the power to suspend gun rights; and S2374, background checks on all firearms transfers; S2376, codifying NJ’s “justifiable need” for a Right-to-Carry permit.
New York:
The New York legislature has adjourned. Gov. Cuomo is leading a charge against any businesses that work with the NRA.
North Carolina:
SB677, adding a Right to Hunt and Fish to the North Carolina Constitution, passed the Senate on a 44-4 vote. On June 25 the House of Representative passed with an amendment and the Senate concurred. The Constitutional Amendment will be on the November 2018 ballot.
Ohio:
On May 22 the House Federalism and Interstate Relations Committee passed Sub HB228, expanding the locations where a person has no duty to retreat before using force under both civil and criminal law, and modifying the Concealed Handgun Licensing Law regarding a licensee’s duty to keep the licensee’s hands in plain sight, and penalties. The House passed HB132, a substitute for HB142, that eliminated the requirement that a Right-to-Carry permittee must inform a police officer that he/she is carrying, and HB233, a bill to change the penalty for a person with a Right-to-Carry permit or a military member who is carrying a concealed firearm where it is prohibited to a possible misdemeanor.
Rhode Island:
Gov. Gina Raimondo signed SB2292A, banning modifications to firearms and certain accessories, and SB2492A, allowing for the issuance of protective orders to infringe on Second Amendment rights based on third party allegations.
South Carolina:
The Senate Judiciary Committee heard SB449, a permitless carry bill.
Utah:
The Utah School Safety Commission passed policy recommendations to make Utah schools safer: universal background checks, mandatory firearms storage, waiting periods, and removing firearms from persons without due process.
Virgin Islands:
According to Fox News the Governor of US Virgin Islands (USVI) signed an executive order in September 2017 giving the adjutant general of the National Guard the authority “to seize arms, ammunition, explosives and incendiary material and other property required.” The Chairman of the House Natural Resources Committee, Rob Bishop (R-UT) and the Chairman of the House Judiciary Committee, Bob Goodlatte sent a letter to USVI Governor Kenneth E. Mapp inquiring about the order to seize weapons from citizens.
Washington:
The Seattle City Council passed an ordinance that would require that if a firearm theft is not reported to the police within 24 hours from the time the victim “should have known” the victim would be subject to a fine. See above Thyng, et al. v. City of Seattle
