By Tanya Metaksa
What’s New—2020 Elections: Although President Trump says it is not over yet, the Electoral College has met and confirmed Biden as President-elect. Georgia-Two run-off races for the U.S. Senate seats are extremely close all gun owners should support the incumbent Republican Senators; Ohio-SB383, allowing citizens to defend themselves without the requirement to retreat, passed the Senate Government Oversight and Reform Committee; Texas-in preparation for the 2021 legislative session several anti-gun bills have been introduced; Judicial–State of California, et al. v. BATFE, et al –another attempt to ban 80% parts; Lara v. Evanchick-Case reassigned; Litigation on Prohibited Persons.
2020 Elections
Election 2020:
Although former Vice-President Joe Biden has been declared the winner, President Trump has not conceded and is still saying he has not conceded.
Georgia:
There are two runoff U.S. Senate races in Georgia this year with the election Jan. 5. Let’s review what has caused two Senate seats to be in play in Georgia in 2020. U. S. Senator David Perdue has been serving since he won his first Senatorial election in 2014 defeating Michelle Nunn, the daughter of former U.S. Senator Sam Nunn. She was a formidable candidate with deep ties to the Georgia Democrat Party since Sam Nunn served as a U.S. Senator from his election in 1972 until he retired in 1997, 4 terms in office. During his tenure he was one of the most powerful members of the Senate serving as chairman of the Armed Services Committee. Senator Perdue is running against Democrat Jon Ossoff who ran one of the most expensive special elections in 2017, an election in which he raised over $23 million, more than $14 million came from outside the district. Jon Ossoff’s website, electjon.com, uses the old Democrat strategy of being for gun safety while giving lip service to the Second Amendment. After saying he will protect the Second Amendment, he lists the following: “I support universal criminal history checks for gun purchases, red flag laws to protect family members and domestic partners concerned about the mental health of their loved ones, and closing the gun show loophole. I support a ban on the sale of semi-automatic rifles (“assault weapons”) and high-capacity magazines to the general public. Americans who would purchase high-powered weapons derived from modern military technology should be required to demonstrate high qualification and compelling specific needs.”
In 2004 former Senator Zell Miller (D) decided not to run for re-election and Representative Johnny Isakson ran and won that Senate race and was re-elected twice. On Dec. 31, 2019 he retired due to health reasons. As a result, Governor Brian Kemp, a Republican, appointed Kelly Loeffler, a businesswoman. She took office in January 2020. According to Georgia law she had to stand for election in 2020. The Loeffler Senate race included 20 candidates on the ballot and as a result no candidate got the required 50 percent threshold to win the seat. Her opponent in the runoff election is the Rev. Dr. Raphael G. Warnock, a Democrat, who is supported by every current sitting Democrat U.S. Senator.
As of Nov. 11, the projected makeup of the U.S. Senate starting in the new congress in 2021 is currently projected to be 48 Democrats and 50 Republicans. Despite a scenario pushed by anti-gun Democrat leader Chuck Schumer projecting a Democrat takeover, Democrats to date only managed to up pick two seats. Republicans held Maine, Iowa, South Carolina and Kansas while taking back a Democratic-held seat in Alabama. If both Republican candidates lose, the Senate will be a 50-50 tie and the Vice-President will be the deciding vote.
For an in-depth article on the state of this race in December 2020 please read this.
Bureau of Alcohol, Tobacco, Firearms and Explosives
On Nov. 6, the Associated Press (AP) had a story headlined “Be Prepared: Biden Transition Team … The gist of the story was “longtime Biden aide Ted Kaufman is leading efforts to ensure the former vice president can begin building out a government in anticipation of a victory.”
On Nov. 10, Ammoland headlined a story about BATFE with “Unaccountable ATF Heads Colluding With Biden Transition Team to Ban Pistol Braces.” It seems that acting director Regina Lombardo told people in a leaked conference call that ATF has already begun working with the Biden transition team and has made her “top priorities” pistol braces and 80% lower receivers.
As we have written in the case of Honey Badger Firearm Stephen Gutowski of the Washington Free Beacon, who broke the story, wrote, “The Bureau of Alcohol, Tobacco, Firearms, and Explosives has delayed a local field office’s attempt to resurrect an Obama-era rule that threatens to turn millions of legal gun owners into criminals.” Adam Kraut of the Firearms Policy Coalition sent a letter to President Trump asking Trump and Attorney General Barr to look into “rogue elements of the” BATFE. However, the Acting Director and her deputy do not seem like “rogue agents.” There is a long history of BATFE going after 80% lower receivers and the companies that manufacture them. BATFE (or any government entity) does not like any manufacturing of firearms to be private.
2019-2020 Gun Control in the U.S. Congress
With the U.S. Congress not able to come together on COVID-19 Assistance, no current gun control bills are expected to be considered between now and Dec. 31, 2019. But rest assured it will begin with a bang on January 3, 2021.
State Legislation
Illinois:
As we have mention this year there has been a delay by the Illinois State Police in issuing Firearm Owner’s Identification Cards (FOID). See Bradley v. Kelley in the Judicial section.The legislature has reconvened for three days per week. Senate Bill 1966, the gun control package from 2019, is still waiting to be scheduled for a hearing in Senate Committee.
Massachusetts:
HD5442-preventing towns and cities from stopping the taking of fingerprints for firearms ID cards has been introduced, but the end of 2020 is less than six weeks away and at that time the legislature will adjourn. This is the language of HD5442:“provided, however, that the taking of fingerprints shall not be required in issuing or renewing a card if the applicant’s fingerprints are on file with the department of state police or if such situation deemed reasonable by the licensing authority or the Executive Office of Public Safety shall prevent such fingerprints from being collected.”
Ohio:
SB383, an important upgrade to Ohio’s self-defense law, that says individual at any time or place do NOT have to retreat but can use force to defend themselves or others. On December 9, 2020 the Senate Government Oversight and Reform Committee approved it and sent it to the Senate for a vote.
Texas:
Anti -gun bills introduced in December 2020 for the 2021 legislative session: HB196, ban self-defense in the home; several bills banning the sale and transfer of private firearms—HB52, HB245, HB760, HB118, HB606 and SB163.
Judicial
NRA v. Swearingen:
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. 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. The NRA filed a lawsuit to constitutionally challenge that prohibition. After delay due to an attempt to keep the plaintiff names sealed, on May 1 Chief U.S. District Judge Mark Walker denied the state’s motion to dismiss the case. Walker made it clear that he was only ruling on whether the case should move forward not whether the law violated the Second Amendment. The case was scheduled to go to trial in January 2021, but Judge Walker asked the parties to try mediation. That did not work and as the parties are preparing for trial, the Florida Department of Law Enforcement (FDLE) has called upon a “mouse brain” expert to supply expert testimony in the case. On Dec. 3, 2020 attorneys for the NRA filed a motion to exclude Dr. Pradeep G. Bhide’s testimony. In filing the motion, the NRA stated, Dr. Bhide’s opinions are extrapolated from emerging research of others in the very specialized and controversial area of adolescent brain development where he has conducted no research, authored no articles, and given no presentations himself. “
Litigation on Prohibited Persons:
According to the Duke Center for Firearms Law cases dealing felon/misdemeanants disarmament appear to be “presumptively lawful” due to the Heller decision that felon disarmament laws were “presumptively lawful.” And these cases are now the most litigated Second Amendment cases. Firearms Policy Center (FPC) has just filed for certiorari in Second Amendment Challenge in Holloway v. Barr before SCOTUS. From the petitioner’s statement:
This case presents an excellent vehicle to clarify whether and how prohibited persons can bring successful as-applied challenges to laws forever denying their fundamental right to keep and bear arms. Holloway is subject to a lifetime firearms ban due to a 2005 misdemeanor conviction for driving under the influence—although he retained all firearm rights under state law, his conviction falls within the scope of the federal felon ban. Holloway is neither dangerous nor a felon. And his law-abiding history since the 2005 conviction shows that he is completely rehabilitated. This Court should grant certiorari to restore Holloway’s rights and resolve the widespread conflict among the lower courts.
This case, and several others like it, are important because Justice Barrett will be able to vote on whether SCOTUS should hear this case. Coming up on Dec. 11 for a certiorari hearing before the Justices is Israel Torres v. USA, a case where a man who kept firearms in his home, but had been convicted of drunk driving twice, twelve and six years’ prior, was disarmed and arrested by federal law enforcement officers in 2017.
State of California, et al. v. BATFE, et al:
This case follows along the same lines as the BATFE’s local field offices attempt to place the Honey Badger pistol within the definition of the National Firearms Act. The state of California and Giffords Law Center seeking an order that BATFE “conduct affirmative rulemaking regarding 80 percent receivers and frames in accordance with the GCA.” The plaintiffs are unhappy with BATFE classifying Polymer 80 and other 80 percent receivers and frames as not “firearms,” and want BATFE to change what is considered a “firearm” to include such items. On Nov. 24, Firearms Policy Coalition (FPC), Mountain States Legal Foundation (MSLF) and 80% Arms filed a motion to intervene on this case on behalf of their members.
Fetsurka v. Outlaw:
This lawsuit is a challenge to Philadelphia & Pennsylvania’s unconstitutional handgun carry laws and policies. On Nov. 23, 2020 the plaintiffs made a motion for a temporary restraining order and preliminary injunction against the city of Philadelphia that completely closed their Gun Permit Unit due to COVID-19 for the second time this year. A video conference to discuss this motion is scheduled for December 8.
Call et all v. Jones et al:
Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Maryland Shall Issue, Inc and Citizens Committee for the Right to Keep and Bear Arms filed a lawsuit against Maryland’s prohibitive carry regulations in federal court.
Defense Distributed and Second Amendment Foundation, Inc. v. Gurbir Grewal, NJ Attorney General, et all:
This case had its beginning seven years ago. When Cody Wilson in Texas created a fully functional 3-D printed handgun in .380-caliber, took it to a range and found that it worked safely. He then uploaded the story about his firearms as well as the instructions for creating this gun to his website, Defcad.com. Since then there have been lawsuits instigated by both pro and anti-Second Amendment plaintiffs.For a history of this issue see my article entitled, No First Amendment Rights for Second Amendment Supporters.
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 the freedom to carry a loaded firearm for self-defense outside their home. The case has been reassigned to Judge Stickman from Magistrate Judge Lenihan.
Jones v. Becerra:
This case is similar to Lara v. Evanchick in that it challenges the California ban on firearm purchase by young adults under the age of 21.
Damien Guedes, et al v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al:
As a result of the DOJ rule concerning “bump” stocks a lawsuit has been filed by bump stock owner Damien Guedes and Firearms Policy Coalition, Firearms Policy Foundation and the Madison Society Foundation to seek a preliminary injunction to stop the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from enacting the ruling that classifies bump stocks as machine guns. This entire case has been argued by cross filing motions without any in-person oral argument. On October 14, 2020 a PER CURIAM ORDER was filed stating that the court will dispose of the appeal without oral argument on the basis of the record and presentations in the briefs. Before Judges: Henderson, Rogers and Ginsburg.
Campos v. Becerra—
On October 5, 2020 the defendants have responded to the plaintiffs’ complaint on The Second Amendment Foundation (SAF) and several other pro-gun groups have joined together in this lawsuit against the CA DOJ’s delay in firearms transfers. According to Alan M. Gottlieb, “California DOJ and the Bureau of Firearms are using the state’s Dealer Record of Sale and the coronavirus outbreak to violate the state’s 10-day waiting period by extending it as long as 30 days to complete a firearms transaction. The agency is essentially violating its own law to perpetuate its anti-gun political philosophy needlessly delaying the ability of law-abiding Californians to exercise their rights.”
Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey—
this is an appeal from the decision of a 3-judge panel in the case of New Jersey’s law to ban that possession of magazines with a greater capacity than 10-rounds. A brief was filed by Professors Of Second Amendment Law, Firearms Policy Coalition, Firearms Policy Foundation, Madison Society Foundation, California Gun Rights Foundation, And Independence Institute In Support Of The Petition For Rehearing En Banc.
Federal Law Enforcement Officers Association v. Gurbir Grewal—
The NRA and the Association of New Jersey Rifle & Pistol Clubs have filed an amicus brief in this case. This is another case in which the state of New Jersey is over reaching. A federal law, Law Enforcement Officer Safety Act, (LEOSA) allows current and retired law enforcement officers to carry firearms nationwide. However, the state of New Jersey is requiring these officers to get state-issued Right-to-Carry Permits.The case is being tried in the U.S. District Court for the District of New Jersey.
Duncan v. Becerra,
On Aug. 28 the office of the Attorney General filed a petition for an en banc hearing on this case. Chuck Michel, the lead attorney, posted on Facebook, “The Ninth Circuit has ordered us to file a response to the state’s request for en banc review. ON IT.” TheNinth Circuit Court held that the California law banning magazines capable of holding more than 10 rounds is unconstitutional. However, this does NOT mean any Californian can now start buying or selling magazine with a capacity over 10 rounds. 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 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.
