This week, we saw an unexpected ruling out of the Fifth Circuit. A panel in the nation’s most conservative federal circuit upheld the brand new “enhanced” background check process from the Bipartisan Safer Communities Act. It did so by essentially sidestepping the Bruen test.
Contributing Writer Jake Fogleman argues the ruling is evidence even right-leaning judges may be hesitant to undo popular gun laws like background checks.
Then, I look at the results of the NRA board elections. Reforms dominated. That leaves some room for them to enact internal reforms before a New York judge decides what to do with the group. But it’s not a lot of room, and it’s not clear exactly how much support the reformers have from the rest of the board.
Plus, Top Shot Champion Chris Cheng joins the podcast to discuss his fundraiser to prevent gun suicide.
Analysis: Judges Show Limited Appetite for Upending Background Check Regimes [Member Exclusive]
By Jake Fogleman
Following the Supreme Court’s Bruen decision, Second Amendment jurisprudence is more unsettled than it has perhaps ever been. However, judges thus far appear skeptical of disrupting at least one realm of gun law: background check requirements.
Even in novel formats, background check requirements have largely escaped falling victim to the text, history, and tradition-based legal test so many other gun laws have been felled by in the courts. Most recently, the “enhanced” background check requirements for 18-20-year-old gun buyers in the 2022 Bipartisan Safer Communities Act were upheld as constitutional by the Fifth Circuit Court of Appeals.
“The [Second Amendment’s] plain text covers plaintiffs’ right ‘to keep and bear arms,’” Judge Jerry E. Smith, a Ronald Reagan appointee, wrote on behalf of a unanimous panel in McRorey v. Garland. “And on its face ‘keep and bear’ does not include purchase—let alone without background check. That is so in either the contemporary or the Founding-era context.”
As a result, there is now precedent in the country’s most conservative circuit blessing a background check scheme that effectively creates a ten day waiting period. And it’s difficult to see gun-rights challengers having better luck elsewhere.
In part, gun-rights litigants have a dicta problem. The language deployed by the Supreme Court to hedge its majority opinions in Heller and Bruen is repeatedly being used to uphold modern gun laws, even those that would seem to lack a historical analogue at first glance.
In the McRorey decision, the Fifth Circuit panel drew from a portion of Justice Scalia’s opinion in Heller that emphasized how the Court’s holding was not casting doubt on “laws imposing conditions and qualifications on the commercial sale of arms.”
That dicta, coupled with the panel’s view that purchasing firearms is merely ancillary to “keeping” or “bearing” firearms, is how it justified eschewing a historical inquiry. So, they didn’t require the federal government to provide Founding-Era analogues to a requirement that young adults go through a three-to-ten-day waiting period and background check before buying a gun.
“Bruen and Heller make clear that background checks preceding firearm sales are presumptively constitutional,” Judge Smith wrote. “Plaintiffs fail to rebut that presumption.”
The lower court decision Smith and his co-panelists were deciding on appeal reached a similar conclusion, mainly based on what the lower court viewed as the Bruen opinion’s implied blessing of objective, shall-issue carry permitting regimes and their associated background check procedures.
“The Bruen majority therefore seems to acknowledge the facial constitutionality of regimes requiring background checks and attendant waiting periods to ensure a potential purchaser is not prohibited from exercising Second Amendment rights, so long as the waiting periods are not ‘lengthy,’” District Judge Reed O’Connor wrote.
And while that practice has not only been limited to cases involving background checks and waiting periods (a federal appeals court cited the Heller opinion’s dicta about military M16s not being protected by the Second Amendment to uphold a ban on civilian AR-15s, for instance), it poses a particular hurdle for challenges to those policies. That’s because, unlike outright hardware or carry bans, background checks and, to a certain extent, waiting periods are much more popular.
Put another way, a ruling striking down the National Instant Criminal Background Check System is likely to engender far more backlash, including from people otherwise sympathetic to gun rights, than one doing away with gun-free zones or AR bans. Though judges are meant to be insulated from the whims of public opinion, they often remain sensitive to considerations beyond the letter of the law. That includes the judges on the Supreme Court.
To date, the Court’s major decisions upholding gun rights have all been broadly popular because they have more or less struck down restrictions that most of the country had long ago rejected. Handgun bans were broadly unpopular well before Heller and the vast majority of states had already adopted permissive concealed carry laws before Bruen.
Some of the conservative Justices have also shown signs they aren’t necessarily looking to get ahead of public opinion on guns in the Court’s most recent cases.
The Justices agreed to review the federal gun ban for persons subject to domestic violence restraining orders and strongly suggested they intended to overturn that ruling during oral arguments last November. Additionally, the Court has taken up a case against the ATF’s reclassification of bump stocks as machine guns. While those oral arguments were less suggestive of a particular outcome, they did feature multiple instances of conservative Justices expressing sympathy for the need to outlaw both machine guns and bump stocks.
“Look, intuitively, I am entirely sympathetic to your argument,” Justice Amy Coney Barrett said in an exchange with the Solicitor General on why bump stocks should be banned. “I mean, it seems like, yes, that this is functioning like a machinegun would.”
“I can certainly understand why these items should be made illegal,” Justice Neil Gorsuch added separately.
The Court’s Bruen opinion sets a difficult bar to clear for most gun restrictions, but that doesn’t necessarily mean the Justices will follow through in striking down many of the more popular gun laws currently on the books. So, gun-rights advocates should not count on background check challenges succeeding. At least, not until more conservative federal judges start to sound more open to expanding their view of the Second Amendment.
Podcast: The Shooting Champion Raising $100k to Prevent Gun Suicides [Member Early Access]
By Stephen Gutowski
This week, we’re talking about a new effort to reduce gun suicides.
That’s why we have shooting champion Chris Cheng on the show. The winner of Top Shot season four is trying to raise money for mental health screenings and treatment. He is matching up to $5,000 of small-dollar donations in an effort to raise $100,000 for Walk The Talk America (WTTA).
WTTA is a grassroots effort to try and reduce suicide from within the gun-owning community. We’ve interviewed one of their co-founders on the show in the past. Cheng said he’s a big believer in their unique approach because it understands some of the novel challenges in reaching gun owners experiencing suicidal ideation without inadvertently discouraging them from seeking help.
Cheng noted that seeking out mental health help can be intimidating for gun owners because mental health professionals have the power to take their guns away. He said WTTA tries to address this problem by educating those professionals about the concerns of gun owners. They have a training program and a list of professionals who’ve worked with the non-profit that gun owners can reach out to.
But it’s not just about reaching mental health professionals, Cheng said. The group also works to open up conversations about suicide and mental health inside the gun-owning community. It offers help for firearms trainers, store operators, and range owners. It also gives people direct access to free mental health screenings.
Cheng said the community has come a long way in addressing the issue of suicide over the past decade, but a lot more is needed. After all, suicide has long been the largest percentage of gun deaths in America. So, Cheng said he’s going to keep working to help, and this fundraiser is the next step.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Plus, Contributing Writer Jake Fogleman and I discuss the Biden administration’s new rule to restrict firearms exports on the news update. We also talk about the Fifth Circuit’s ruling upholding enhanced background checks for 18-to-20-year-olds and why the results of the latest NRA board elections suggest the members are pushing for change. Then we cover my new piece in The Dispatch and my appearance on CNN talking about Tennessee’s new armed teacher law. Audio is here. Video is here.
Analysis: A Sign NRA Members Are Fed Up [Member Exclusive]
By Stephen Gutowski
The National Rifle Association’s board election results came in this week, and they provide pretty good evidence for how the group’s membership is reacting to its current ordeal.
Every candidate who explicitly ran on replacing current leadership and instituting significant internal reforms was elected, according to results published in the NRA’s American Rifleman magazine. Two of the top three vote-getters were reform candidates. The same can be said for three of the top five and four of the top seven. The final board candidate who ran on instituting internal reforms, who is a relative newcomer to NRA activism, also won a seat in the top 16 of the 26 who were elected.
NRA voters also approved the creation of a new chief compliance officer position.
The reformers, who ran as a block on a common campaign platform, will be sworn in at the group’s next board meeting later this month. The outcome suggests many NRA members are on board with the changes the reformers want to impose. It could convince other board members to join the dissidents’ cause and alter the course of the organization in the wake of a years-long corruption scandal that recently culminated in the resignation of longtime CEO Wayne LaPierre and a jury finding that the group didn’t safeguard its charitable assets.
NRA members voted Phillip Journey, Rocky Marshall, Jeff Knox, Dennis Fusaro, and Owen “Buz” Mills onto the board for three-year terms. Other than newcomer Fusaro, all of them have been vocal critics of LaPierre and his allies on the NRA board for years.
Journey, Marshall, and Mills all joined in an attempt to get a federal judge to appoint an independent examiner during the NRA’s failed 2021 bankruptcy filing. They had criticized LaPierre and his allies, such as current NRA President Charles Cotton and outside counsel William Brewer, for initiating the expensive and doomed attempt without even telling the board. Journey and Mills were not renominated by the board after raising their concerns. Instead, they had to get back on the ballot by collecting enough signatures to qualify.
“I want to thank the dozens of members who took the time to gather the voting members’ signatures for the petitions that put us in the ballot and the tens of thousands of members that voted for reform,” Journey told The Reload.
Knox hasn’t been on the board in the five years since the allegations that LaPierre and NRA leaders diverted millions of dollars in funds toward lavish personal expenses, including private flights and fancy vacations. But he has been fighting to oust LaPierre and his supporters for decades. His father first appointed LaPierre CEO but eventually came to regret it after corruption allegations first surfaced against him in the 1990s. Knox’s father was unable to dislodge LaPierre, but he has carried on the fight from outside of the group’s board since then. Now, he’ll do so from inside.
“I’m not sure whether to celebrate or cry,” he told The Reload. “I prefer to stay home and live a quiet, country life, but I love this Association and have been a Life member for over 40 years. I’ve hated watching it eroded by greed, incompetence, and misplaced loyalties. I just hope enough Directors now realize how bad the situation is and who’s responsible for it, so we can work together to restore trust and begin the process of rebuilding.”
The reformers want to wipe the current leadership clean of those who were involved in any of the questionable spending or approved of it after the fact. That likely includes Cotton and interim CEO Andrew Arulanandam. Brewer, who has racked up over a hundred million dollars in charges to the group for the legal strategy he has masterminded in the wake of the corruption allegations coming to light, would also likely be on the chopping block.
In addition to removing key leadership members, the reformers want to change the group’s bylaws to avoid a repeat of what got the NRA to this point. That probably means more transparency about who receives NRA contracts, less control by the board of who gets nominated to run for the board, and potentially even fewer board members overall.
But that brings us to one of the reformers’ first challenges. Five members on a board of 76 clearly isn’t a majority. It’s unclear where most NRA board members stand on the group’s current leadership or legal strategy. So, the reformers still face an uphill battle to gain control of operations and implement meaningful changes.
That will be especially hard to do before the sword hanging over the group’s head falls this summer. The second phase of the group’s New York trial is set to begin in mid-July and will ultimately determine the NRA’s leadership. If the NRA strips out the leaders who facilitated LaPierre’s corruption and implements internal changes over the next two months, it has a better shot of avoiding court-appointed monitors for its finances and operations.
“I am going to be looking for private remedies, internal remedies, rather than state oversight,” Judge Joel Cohen said during a March hearing, according to The Trace.
Of course, even making changes might not guarantee he decides not to intervene. Failing to adopt the changes internal reformers want may not push him to take action either. After all, Brewer’s main argument throughout the case is that the NRA already has cleaned up its act–a claim the reformers reject.
In the end, the current fight over NRA leadership could all look inconsequential by the end of the trial. But, at the very least, this is the first concrete sign we’ve seen that many NRA members seem to believe the reformers could right the ship in time. That’s what the newly minted board members certainly say they’ll try to do.
“In a little more than two weeks we will be at the members’ meeting and board meeting in Dallas,” Journey said. “We intend to do all we can to restore the NRA to its former glory.”
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
