Legislative sessions in full swing
By Tanya Metaksa
Latest developments— Fed. Legislative: DOJ classifying bump stocks as machine guns; H.R. 8; S.66; S.69; S.193; Judicial: Politics: State Legislation: Hawaii, Illinois, Iowa, North Carolina, Oregon, South Dakota, Virginia, Washington, West Virginia, Wisconsin, Wyoming.
The 2019 legislative session at the state level is expected to be volatile—especially in those states that had a change in leadership from one party to the other. Before the 2018 elections Republicans controlled 67 legislative chambers while Democrats controlled 32. After November 6, 2018 Democrats picked up 5 chambers. For legislation dealing with gun rights the change in legislative leadership could have a negative effect in Colorado, Maine, Minnesota, New Hampshire and New York. Additionally in seven states the Democrats attained “supermajority” status that could result in veto proof legislation: California, Hawaii, Illinois, Maryland, Rhode Island, and Oregon. Additionally several new states became “trifecta” states where both legislative houses and the governorship were held by the same party: Illinois, Maine, Nevada, New Mexico, and New York.
Federal
On December 18, 2018 the Department of Justice (DOJ) promulgated a rule classifying “bump” stocks as machine guns that makes them illegal to own without having paid the requisite fee. As of this date a 90-day grace period ending on March 21, 2019 has begun that gives current owners of such accessories time to either destroy or turn them in. Slide Fire Solutions, that appeared to be the largest manufacturer of such stocks, closed down its business in the spring of 2018. Any remaining devices were being sold by RW Arms, Fort Worth, TX.
As promised the House Democrats have introduced H.R. 8, on Jan. 8, 2019, the 8th anniversary of the attack on former Rep. Gabby Giffords. According to Politico, “The Democratic proposal would require federal background checks on all gun sales, including private transactions. There will be some small exemptions to those checks, such as transfers between family members, or temporary use of a gun for hunting. Gun-control groups estimate that roughly one-fifth or more of gun sales don’t include background checks.”
- 69, The Constitutional Concealed Carry Reciprocity Act of 2019, was introduced by Sen. John Cornyn (TX-R) on January 10, 2019.
Assault Weapon Ban of 2019, S.66, was introduced by Sen. Dianne Feinstein and at least 25 other Democrats on Jan. 10, 2019. It bans the sale, transfer, manufacture, and importation of “military-style assault weapons and high-capacity ammunition magazines,” 205 gun models have been specifically listed and includes a definition of assault weapon as a semi-automatic firearm with a detachable magazine that includes at least one feature such as a threaded barrel, pistol grip, or folding stock. Additionally the bill bans adjustable stocks and stabilizing braces.
S.193, to require the safe storage of firearms, was introduced by Sen. Richard Blumenthal and Sen. Chris Murphy (Both CT-D). Firearms owners who fail to secure guns would face a class D felony, $500 fine and up to five years in prison, if the firearm cause injury or death.
Judicial
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. The plaintiffs argue that 1. A “Bump” stock is NOT a “machine-gun” and 2. Acting Attorney General Matthew Whittaker is not legally the “acting” Attorney General.
Peña, et al. v. Acting CA DOJ Bureau of Firearms Chief Martin Horan: This case was/is a challenge to the California Handgun Roster Microstamping Requirement. On Dec. 28, 2018 attorneys Alan C. Gura, the lead attorney on the Heller case, and Donald Kilmer filed a petition for Supreme Court review in a federal Second and Fourteenth Amendment lawsuit challenging the State of California’s handgun roster and “microstamping” laws. The Calguns Foundation, an institutional plaintiff in the case, is joined by Second Amendment Foundation and four individuals. A copy of the petition for certiorari can be found at https://www.calgunsfoundation.org/pena.
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.
Montana: Missoula: In October 2015 when the Missoula City Council was debating a proposed ordinance requiring background checks on guns transferred within the city, Attorney General Tim Fox issued a press release saying “Missoula’s proposed gun control ordinance is prohibited by state law.” The city, however, passed the ordinance in 2016. On Jan. 26, 2018 Montana Attorney General Tim Fox issued Vol. 57, Opinion No. 1 in which he stated that the Missoula ordinance violates two MT statutes; thus local government is prohibited from enforcing an ordinance “requiring background checks on firearm sales or transfers.” The city appealed Fox’s opinion in April and on Oct. 11, 2018 District Court Judge Robert “Dusty” Deschamps ruled that the city had the authority to pass the ordinance. Five days later the Missoula City Council passed a new rule prohibiting people from carrying guns in city controlled public spaces. According to the Washington Times, Dec. 10, 2018 Fox will be challenging Missoula’s gun ordinances to the Montana Supreme Court.
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.
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.
The Defense Distributed cases: As a result of the case States of Washington; Connecticut; Maryland; New Jersey; New York; Oregon; Commonwealth of Massachusetts; Commonwealth of Pennsylvania; and the District of Columbia v. Various department of the US Government, Defense Distributed; Second Amendment Foundation, Inc.; and Conn Williamson: In late August 2018 the judge issued an injunction against Defense Distributed stopping the publication of the blueprints. This lawsuit is a direct result of the decision by the Department of State in the Defense Distributed case listed below. The Attorney Generals of the above listed states sought a restraining order to stop Defense Distributed from making the blueprints for 3D printed firearms available to the general public. Judge Robert S. Lasnik of United States District Court ruled immediately after the suit was filed that those states had established “a likelihood of irreparable harm” and he added there were “serious First Amendment issues” that would need to be worked out later in court, but that for the moment, there should be “no posting of instructions of how to produce 3-D guns on the internet.” Defense Distributed has now decided to sell the files rather than make them available for download.
In response to the above case, Defense Distributed and Second Amendment Foundation, Inc. has filed a suit Defense Distributed and Second Amendment Foundation, Inc. v. Gurbir Grewal, NJ Attorney General, et all, countering the injunction that was granted in the above case and seeking relief under the First, Second and Fourteenth Amendments and the Due Process and Commerce clauses to the US Constitution. On Sept. 28, 2018 Cody Wilson resigned from Defense Distributed and it was announced that Paloma Heindorff, who previously had been a vice-president, became Director of the corporation
State Legislation
All 50 state legislatures will be in session in 2019. The following states have begun or begin in January: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, DC, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.
2018 Legislation
Ohio: Although Gov. John Kasich vetoed Substitute House Bill 228, during a veto override session the House voted to enact the bill on the morning of December 27, by a vote of 67 to 22. Later the Senate concurred by a 21 to 11 vote. The bill expanded preemption, placed the burden to disprove a self-defense claim on the prosecution, and clarified Ohio signage relating to concealed carry.
2019 Legislation
Arkansas:
A bill prefiled to cut the initial fee for a Right-to-Carry permit from $100 to $50 and the renewal from $50 to $25 has the support of Gov. Asa Hutchinson.
California:
With the passage of Proposition 63 and Senate Bill 1235 the California Department of Justice released the first set of proposed ammunition sales regulations. Two hearings on the regulations will be held: 1/19/19 10:00-12:00 AM, Ronald Reagan State Building, 300 S. Spring Street, Los Angeles, CA 90013 and 1/31/19 1:00-3:00 PM, Resources Building Auditorium, 1416 9th Street, Sacramento, CA 95814. Written comments may also be submitted by 5:00PM, 1/31/19 to Jessie Romine, Bureau of Firearms, Division of Law Enforcement, Department of Justice, PO Box 160487, Sacramento, CA 95816-0487, email Ammoregs@doj.ca.gov.
Florida:
According to Marion Hammer, Executive Director USF, “An article posted on FLORIDA POLITICS dated 12/25/2018 titled The 12 Days of Christmas …reported that NY Billionaire Mike Bloomberg’s anti-gun group “Everytown for Gun Safety Action Fund” has hired a lobbying team from Smith Bryan & Myers.”
Hawaii:
HB25, making the possession of firearms or ammunition in a hotel room a crime.
Illinois:
Gov. J.B. Pritzker, the newly elected anti-gun chief executive, signed SB337, a bill that was passed by the 2018 legislature but held by Senate President John Cullerton, Fullerton did not send SB337 to former Gov. Bruce Rauner as a veto had been threatened. SB337 will create an electronic firearms transfer form that will lead to an electronic firearms registry.
Indiana:
Two pro-gun bills have been introduced: HB1643, eliminating fees for a lifetime state Right-to-Carry
Permit and allowing carrying in churches, and HB1284, removing the burden from a defendant when a firearm is used in self-defense.
Iowa:
in 2018 an effort to add gun rights to the Iowa constitution passed the legislature, but the Secretary of State’s office failed to publish the required notifications required by Iowa Constitution. It is highly likely that this has set back this effort for at least two years.
Mississippi:
The legislature began its 2019 session on January 8.
Missouri:
Prefiled pro-gun bills: SB5, changing the initiative and referendum process; SB39, allow for carrying of firearms for self-defense on public transit; and HB82, allowing employees to keep their firearms and ammunition in their locked vehicles when parked on the employer’s or state-owned property. Prefiled anti-gun bills: several bills have been filed that would allow family or law enforcement to petition a court to seize a person’s gun without due process-SB23, SB41, SB42, HB40, Bills to criminalize private transfers-SB163, HB210. Mandate firearms storage-SB40, HB56, HB235. Apply federal law for prohibition of firearms possession to state law-SB94, HB163, Ban certain firearms accessories such as “Bump” stocks-HB163.
New Mexico:
Anti-gun lawmakers have already begun introducing legislation in the New Mexico legislature prior to the January 15 commencement of the 60-day session. Two bills requiring “universal” background checks, HB8 and SB8 have been filed. Other pre-filed bills include: HB40, mandating background checks on private sales; HB3, extreme risk protection (“red flag”) legislation and HB130, a mandatory storage bill that would make a gun owner criminally and civilly liable should a child gain access to an unsecured firearm.
New York:
Gov. Andrew Cuomo has suggested that the legislature should increase the waiting time for purchasing guns from 3 days to 10 days. NY S2857A, requiring firearms owners to carry $1 million dollars of liability insurance, has been introduced.
North Carolina:
The NC Wildlife Resources Committee (WRC) will be holding public hearings regarding Sunday hunting. In 2017 the legislature legalized Sunday hunting, but the WRC has yet to propose rules to enable Sunday hunting.
Oklahoma:
SB38, would allow Right-to-Carry permittees to carry guns in the Capitol.
Oregon:
SB501, require licensing of gun owners, ban magazines capable of holding more than 5 rounds, 14-day waiting persons and limit ammunition purchase to 20 rounds per month.
Pennsylvania:
Governor Tom Wolf tweeted, “It’s time for Pennsylvania to have a conversation about restricting semi-automatic rifles. Dangerous people should not have easy access to the weapons that killed innocent victims in Pittsburgh.” Pittsburgh Mayor Bill Peduto is sending draft ordinances to other mayors encouraging them to pass them in their cities. Included in those draft ordinances is 1. An assault weapons ban, 2. Banning “semiautomatic modifications” including “large capacity” magazines, certain ammunition and “Bump” stocks, and 3. Extreme risk protection orders to allow courts to seize firearms.
South Dakota:
SB47, a permitless carry bill, passed the Senate Judiciary Committee 3-2.
Utah:
It has been reported that Rep-elect Andrew Stoddard has suggested a law allowing anyone who lends a firearm to a person who then uses it to commit a violent offense could be sued.
Virginia:
The Senate Committee on Courts of Justice held hearings on gun bills on January 16, while the House Militis, Police and Public Safety Committee held hearings on January 17. There are two pro-gun bills: SB1158, allowing law-abiding adults to carry concealed without government permission, and HB2253, to require the state police to issue nonresident Right-to-Carry permits in the same time that residents can get their permits.
The following bills are still viable after those Committees voted: In the Senate SB1163, a bill banning accoutrements that increase the rate of fire of rifles, has been referred to the Senate Finance Committee. None of the bills voted on in the House Committee were passed. Although there have been more than 25 anti-gun bills introduced it appears that Rep. Terry Kilgore’s (R) prediction that defending the Second Amendment was a priority for Republicans and that the Governor’s bills were “dead on arrival” in the VA House of Delegates, is coming to fruition.
Wisconsin:
The New Democrat Governor, Tony Evers, is already working on gun control measures.
Washington:
The Alliance for Gun Responsibility has announced their anti-gun agenda for 2019 legislative session. It includes:1. Standard Magazine Ban, 2. Mandated training, 3. Abolish State Preemption, 4. Remove firearms’ rights without due process, 5. Expand gun free zones, 5.Mandate reporting of lost and/or stolen firearms. 6. All Washington State Police to destroy seized firearms. Anti-gun bills introduced: SB5062/HB1068, bans magazines with a capacity of more than ten rounds; SB5027 and SB5072 would expand Extreme Risk Protection Orders denying gun owners due process; SB5340/HB1286, banning commonly owner set-automatic firearms, and HB1010, allowing the Washington State Patrol to destroy forfeited firearms rather than selling them to firearms dealers.
West Virginia:
HB2519, the Campus Self-Defense Act, was introduced. It would allow Right-to-Carry permit holders to carry on the campus of a state institution of higher learning.
Wyoming:
SB75/HB183, repealing Wyoming law that prohibits the lawful carrying of a firearm for self-defense in any governmental meeting, school, college or professional athletic event and university facility.
