Archive for the 'Second Amendment' Category

Daily Caller.

The Supreme Court rolled back the Environmental Protection Agency’s (EPA) authority to regulate under the Clean Water Act (CWA) in a unanimous decision Thursday.

Sackett v. Environmental Protection Agency, brought by a couple prevented by the EPA from building a home on their own land near Priest Lake, Idaho because it contained wetlands, considered the scope of the agency’s “waters of the United States” (WOTUS) rule, which defines what “navigable waters” can be regulated under the CWA. Plaintiffs Chantell and Mike Sackett, who have spent 15 years fighting the agency’s rule in court, allege the EPA has overstepped the authority it was granted when Congress enacted the CWA in 1972—forcing them to stop construction on their land or face fines.

The Supreme Court sided with the Sacketts, determining their land is not covered under the text of the CWA, which gives the EPA authority to regulate “navigable waters.”

Justice Samuel Alito wrote in the majority opinion, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barett, that the EPA’s interpretation “provides little notice to landowners of their obligations under the CWA.” The Court held that the CWA applies to only wetlands that are “as a practical matter indistinguishable from waters of the United States,” maintaining a “continuous surface connection.”

EPA restrictions on wetlands is similar to civil asset forfeiture.  It amounts to thievery.  It’s wrong and everybody knows it.

The opinion was “unanimous,” but the picture isn’t so rosy as you might suspect.

Though justices were united in their judgement, they maintained disagreements on definitions. Justice Brett Kavanaugh, in an opinion concurring in judgement that was joined by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, thought the majority went too far in its test for which wetlands are included.

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” he wrote.

Kagan similarly said in an opinion joined by Sotomayor and Jackson that the majority has appointed itself as “the national decision-maker on environmental policy” by choosing a test that “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”

“The eight administrations since 1977 have maintained dramatically different views of how to regulate the environment, including under the Clean Water Act,” she wrote, noting some “promulgated very broad interpretations of adjacent wetlands.”

“Yet all of those eight different administrations have recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like,” she wrote. “That consistency in interpretation is strong confirmation of the ordinary meaning of adjacent wetlands.”

So the other “justices” sided with the sensible ones, but they want all but the most obvious examples to be decided by the FedGov, with property owned by the same.

Thus, the Leviathan only got his hand slapped rather than smitten into ruin on the rocks like he should have been.

Interestingly, Mark Smith sees this as very important for gun owners.  See how this decision applies to the ATF and why lawyers will be citing it in the coming months.

Source.

BATON ROUGE—A House committee on crime advanced a bill 8-1 that would allow permitless concealed carry for individuals 18 and older.

Rep. Danny McCormick, R-Oil City, brought what he said was a “constitutional carry” bill before the committee Tuesday. McCormick’s bill would amend present law that only allows concealed carry for 21 or older who undergo the proper training to receive a permit.

Rep. McCormick told the House Committee on Administration of Criminal Justice that his bill, House Bill 131, would mimic current rules that allows individuals 18 and over to openly carry a firearm. His bill would allow individuals to carry a concealed weapon at the same age.

“So basically, what you’re doing with this bill is that you’re trying to get every law-abiding citizen in the state of Louisiana the same ability that every criminal does,” Rep. Raymond E. Garofalo Jr. R-Chalmette, said. “Every criminal right now can carry a concealed weapon with no permit, no training, no nothing.”

[ … ]

“Personally, I’ve never seen anyone open carry that was doing it carelessly,” Rep. McCormick said in response. “I trust the people with the rights, and I think the Second Amendment gives us those rights.”

Despite all the hand wringing in the gun community, neither have I.  I hope Louisiana passes the bill this year and it gets signed into law.  Permitless carry in N.C. probably won’t pass this year, but it’ll be reintroduced again in the next session.  I’m not sure about its status in S.C.

Source.

A new law limiting concealed carry of guns in New Jersey suffered another defeat in federal court Tuesday as a judge ordered state officials not to enforce its tight restrictions pending a flurry of legal challenges from gun rights advocates.

The ruling means New Jerseyans with proper permits are free to concealed-carry handguns at beaches, public parks, bars and restaurants — places from where Gov. Phil Murphy and his Democratic allies in the state Legislature sought to ban firearms in an effort to curb gun violence.

The magnitude of this win should not be understated, especially given the strength of the ruling.  Based on what I heard, I find it unlikely that NJ will prevail even after discovery and arguments.

Here is the decision, all 235 pages of it.

David Codrea.

The complaint, embedded below is a treasure trove of examples from even before the Second Amendment was written, presenting photographic examples including:

• 1720 Flintlock Pistol with Stock
• 1750 Flintlock Pistols with Stocks
• 1760 Flintlock Grenade Launcher
• 1780 Flintlock Pistol w Stock
• 1760-1820 Flintlock Pistol Carbine with detachable stock
• 1790 Flintlock Blunderbuss Pistols – w detachable stocks (and bayonets)
• 1795 Flintlock Blunderbuss – 15” barrel

“Such weapons continued after the ratification era, through the incorporation of the Fourteenth Amendment,” the complaint continues, presenting further examples from 1820 through to the 1940s …

He uses the complaint brought by GOA attorney Stephen Stamboulieh, which we’ve linked before.

So if the Heller test is the law of the land, according to the Supreme Court, then “in common use” should completely disqualify SBRs from the NFA list, and the Bruen test for laws in place at the founding would certainly exclude SBRs (and pistol braces) from the NFA.

Source.

North Carolina lawmakers pulled back Wednesday from a bill that would let people carry concealed guns without a permit.

The measure faces an uphill battle now, with the top Senate Republican saying Wednesday that he doesn’t think it’s time to take up the issue. In the House of Representatives, lawmakers punted on a scheduled vote, indicating the bill didn’t have enough support to pass the chamber.

House Bill 189 would let any legal gun owner conceal that gun. Right now gun owners need a concealed carry permit to do that, which is typically issued by their local sheriff. That process requires a background check, proficiency test and a test on the rules for self defense and where guns are allowed.

Those tests, and the permits themselves, would be optional under the bill.

The bill moved through a pair of committees Tuesday and seemed primed to pass the House. But enough Republican lawmakers had misgivings to at least delay the measure, and leadership dropped it from Wednesday’s House floor calendar. Tomorrow brings a legislative deadline that there are ways around but which generally requires bills to pass at least one chamber to stay alive.

Also Wednesday, Senate Republican Leader Phil Berger indicated the bill would not move through his chamber this session. Berger, R-Rockingham, said Senate Republicans hadn’t discussed the bill, but that the General Assembly already passed a substantial gun bill this year, ending the state’s pistol permit system.

That system required people to get a permit from their sheriff to purchase a handgun, and Republicans lawmakers scrapped (editorial comment – passed?) it over Democratic Gov. Roy Cooper’s veto.

This is the good part – listen to his excuse.

“We’ve done away with the pistol purchase permit, which was the No. 1 goal of many of the gun rights groups for a long period of time,” Berger said Wednesday. “I just don’t know if there’s a need for us to delve into additional issues dealing with guns and people’s 2nd Amendment rights.”

“People have a right to protect themselves utilizing weapons, and law abiding citizens can be trusted to handle those rights responsibly,” Berger said. “I just don’t know that the timing is right for us, at this time, to move forward with additional gun legislation.”

We’ve let rights dribble out to the people this year, so what’s the problem with ignoring the rest of it?

The N.C. Sheriffs Association opposed the bill which I’m certain didn’t help.  But here is the rest of the story you weren’t told above.

Isn’t that sweet.  “The NRA will never apologize for refusing to compromise on an issue as critical as constitutional carry.”

Okay, how about the NFA, the GCA, the Hughes Amendment, the Bump Stock Ban, Red Flag Laws, the initial AWB, and I could go on.  Do you apologize for those abominations?

Honestly, I see the virtue of waiting to get this right, but I would have preferred that we go ahead and get some of this done now and correct it later after lawmakers saw that blood doesn’t really run in the streets.

But the most telling thing here are the two responses, first Berger’s, and then the NRA’s.  And Paul is right that the NRA will then swoop in to take credit for it all if it does finally pass after having ignored it the whole time.

What a despicable organization.

Tenth Amendment Center.

On Wednesday, the Montana Senate gave final approval to a bill that would place a constitutional amendment on the ballot to remove a clause restricting concealed carry. The amendment would limit the state’s power to regulate the concealed carrying of firearms and also foster an environment hostile to federal gun control.

Rep. Casey Knudsen (R) introduced House Bill 551 (HB551) on Feb. 14. The bill concerns Article II, Section 12 of the state constitution, which reads:

Right to bear arms. The right of any person to keep and bear arms in defense of 19 his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be 20 called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

HB551 would place an amendment on the ballot to remove “but nothing herein contained shall be held to permit the carrying of concealed weapons” from that section. It would also change the phrase “keep or bear arms” to “keep and bear arms.”

Passage of HB551 now places the proposed amendment on the ballot in the November 2024 general election.

On April 4, the House passed HB551 by a 65-33 vote. It then cleared the Senate 33-17, narrowly reaching the two-thirds majority necessary.

Montana legalized permitless carry in 2021. This constitutional amendment would make it more difficult for the state to repeal that law. More generally, it would set the stage to end any state regulation on concealed carry.

[ … ]

Because it is a constitutional amendment, it will bypass the governor and now be sent to voters for approval in 2024.

Readers in Montana can weigh in with details, but I expect this to pass a voter referendum.

Montana – showing the rest of the states how to do it right.  Make it a constitutional amendment.

Eugene Volokh.

The case arose before Bruen, when New York required a showing of special need to get a license to carry a gun for self-defense. The petitioner had argued that she needed a gun because she and her husband would often carry substantial sums of cash for business, but the New York licensing authorities responded that she “failed to explain why her stated self-defense needs were not already adequately and independently addressed by her husband’s recent acquisition of an unrestricted concealed carry license.”

The New York intermediate appellate court rejected that logic (Matter of DiPerna-Gillen v. Ryba, decided Thursday in an opinion by Justice Stan Prizker, joined by Presiding Justice Elizabeth Garry and Justices Michael Lynch, Molly Reynolds Fitzgerald and Eddie McShan). The court’s main point was that, given the decision in Bruen, which came down while the appeal was pending, petitioner had a constitutionally protected right to carry, even without a showing of special need.

What a bunch of jerks.  They would force the husband to accompany the wife everywhere she went in order to obtain means of self defense, which might be a good idea at times, but comports more with Islamic culture than it does with Christianity.

Source.

SPRINGFIELD, Ill. — A federal judge in East St. Louis issued an order Friday blocking enforcement of Illinois’ ban on assault weapons and high-capacity magazines until a lawsuit challenging the law is resolved.

Judge Stephen P. McGlynn, of the Southern District of Illinois, said the law known as the Protect Illinois Communities Act, or PICA, is likely to be found unconstitutional when the case goes to trial and the plaintiffs in the consolidated cases will suffer harms without a preliminary injunction to block its enforcement.

In a 29-page opinion, McGlynn acknowledged that the law was passed in the wake of a mass shooting at an Independence Day parade in Highland Park last year. But he said the “senseless crimes of a relative few” cannot be used to justify abridging the constitutional rights of law-abiding citizens.

That’s the so-called “heckler’s veto” which we discussed just recently.  These legal doctrines do matter.

“More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen?” McGlynn asked rhetorically in the opinion. “That is the issue before this Court. The simple answer at this stage in the proceedings is ‘likely no.'”

McGlynn’s decision came less than a week after another federal judge, Lindsay Jenkins, of the Northern District of Illinois, reached an opposite conclusion and denied a motion to halt enforcement of the law. Plaintiffs in that case have indicated they intend to appeal to the Seventh Circuit Court of Appeals.

This will likely go to the seventh circuit to rectify the split, and all bets are off there.  But the seventh circuit will block the law, in which case it’s either over or it may go to the supreme court, or they will uphold the law, in which case it will certainly go to the supreme court.

Judge Benitez hasn’t issued his ruling for California as of this writing, but there isn’t much doubt as to what he will do.  In the end, these will likely go to the supreme court, with the decision based on Heller, which stipulates that if a weapon is in common use for lawful purposes, it cannot be banned.  Heller doesn’t say if a weapon is in common use for self defense it cannot be banned.  It says “for lawful purposes.”  If there are thirty million ARs and AKs in America and they are all being used to adorn fire place mantles, that’s common use.

Here is Judge Stephen P. McGlynn’s ruling.  Here are some takeaways from the ruling.

The prefatory clause of the Second Amendment states, “[a] well-regulated Militia, being necessary to the security of a free State . . . .” The prefatory clause “announces a purpose” for the operative clause but “does not limit [it].” Id. Meaning that there “must be a link between the state purpose and command” but that the scope of the operative clause remains unchanged by the prefatory language. See Id. As the Supreme Court noted, the operative clause of the Second Amendment creates an individual right. See Id. at 598. Thus, logic demands that there be a link between an individual right to keep and bear arms and the prefatory clause. The link is clear, “to prevent elimination of the militia.” Id. at 599. During the founding era, “[i]t was understood across the political spectrum that the right . . . might be necessary to oppose an oppressive military force if the constitutional order broke down.” Id. Therefore, although “most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting” the additional purpose of securing the ability of the citizenry to oppose an oppressive military, should the need arise, cannot be overlooked. See Id.

Which I have always maintained.  The prefatory clause is sufficient but not necessary, or sufficient but not comprehensive.

The second section of the operative clause, “Keep and Bear Arms,” defines the substance of the right held by “the people.” Id. The Heller Court first turned to what constitutes “arms” and found that “arms” were understood, near the time of the ratification of the Second Amendment, to mean any weapon or thing that could be used for either offense or defense. See Id. The Court specifically noted that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582. Finally, the Court turned to the meaning of “keep” and “bear.” Id. at 582-92. These words are understood, in light of founding era history, to mean to “have” and to “carry” respectively. See Id. at 582-84. In sum, the operative clause of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Id. at 592.

Yes, although the supreme court dealt specifically with the “keeping” part of the RKBA in Heller, and the “bearing” part in Bruen.

… in the years following Heller and McDonald, the Courts of Appeals analyzed the Second Amendment under a two-step test. See Id. at 2126. The first step included an analysis to determine if “the original scope of the right based on its historical meaning.” Id. The second step was a balancing test of either intermediate scrutiny or strict scrutiny depending on “[i]f a ‘core’ Second Amendment right is burdened.” See Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc)).

The Bruen Court firmly rejected this two-step framework, concluding that “[d]espite the popularity of this two-step approach, it is one step too many.”

Bruen once and for all ended “interest balancing” for the RKBA.  It’s over and done with, and should more cases appear before the Supreme Court where interest balancing has occurred, they will be dealt a blow.

He goes on to deal with magazines, and many other important things.  I’m disappointed that Judge Benitez hasn’t issued his ruling, for I expect it to be a good one.  However, this is an excellent ruling for the RKBA.

Here is Mark Smith celebrating the victory.

Prior:

Sixth Circuit Strikes Down Bump Stock Ban

Hundreds more in the Second Amendment Category

Be the smartest guy in the room.  Always catch Mark’s videos.  They are legal classes in 12 – 15 minutes. And you don’t have to pay law school tuition for them.

Always remember that you have Trump to thank for the bump stock ban, and the corollary empowered ATF making law out of whole cloth.

Just today, the Sixth Circuit struck down the bump stock ban.  Two of the judges decided in favor of the plaintiffs because of the doctrine of lenity.  I disagree with that.  I think the law is very clear and adding a piece of plastic to a rifle doesn’t convert it to a machine gun under the statutory language.  The third judge said it better.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF “the power to expand the law banning machine guns through [the] legislative shortcut” of the ATF’s rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

26 U.S.C. § 5845(b). Under this definition, a bump stock cannot be a machinegun part because a bump stock by itself cannot increase the rate of fire of a rifle, nor does it change the mechanics of a “single function of the trigger.”

Here is Mark Smith celebrating the victory.