This week saw a lot of developments on the legal side of things. Perhaps the most important has to do with the federal prohibition on felons possessing firearms.
The same federal judge who just struck down the ban on those facing felony indictment receiving guns has now upheld the ban on those convicted of a felony from having them. He telegraphed his decision in the second case when he wrote his opinion in the first. But now we have our first attempt at building a framework for upholding gun laws like the conviction ban under the new Bruen standard.
I take a look at that standard and try to assess its weaknesses as well as its strengths.
There were also a pair of other new gun rulings this week. The first was more bad news for the NRA as the Second Circuit tossed its long-running First Amendment suit against a former New York official. The other was good news for home-built gun enthusiasts since a federal judge blocked enforcement of Delaware’s “ghost gun” ban.
A pair of new gun suits were filed this week too. One takes on Philly’s latest end-run around state preemption law. The second takes on California’s attempt to make it much more costly to sue the state over its gun laws.
Contributing Writer Jake Fogleman also examines how the renewed challenge to New York’s restrictive gun-carry law is faring, and why there could soon be new action in the case.
Plus, George Mason University’s Robert Leider joins the podcast to talk about the felony indictment gun ban being struck down.
Federal Judge Who Struck Down Felony Indictment Gun Ban Upholds Conviction Ban
By Stephen Gutowski
The federal prohibition on convicted felons possessing guns is in line with the Second Amendment.
That’s the conclusion reached by the judge who recently ruled the ban on those under felony indictment receiving guns was not. Judge David Counts of the U.S. District of Western Texas found that contrary to the indictment ban, the convicted felon ban survived scrutiny under the Supreme Court’s new Bruen standard.
“Bruen did shake up the legal landscape,” Counts wrote in his ruling. “And the Court believes that faithfully following Bruen’s new framework casts doubt on some firearm regulations. But the regulation in this case is not one of them.”
We now have a new framework for how the federal prohibition on felons owning guns could be constitutional.
District Judge David Counts of Western Texas upheld the conviction ban this week. That’s despite the fact that he struck down the federal ban on people indicted for felonies receiving firearms just a few days beforehand. And he did it under the Supreme Court’s Bruen standard, making him among the first to apply it to federal law.
His logic will sound familiar to anyone who followed his opinion in the indictment case. After calling into question the constitutionality of the indictment ban under Bruen’s text-and-tradition standard, he did the same for the conviction ban.
“Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn’t clearly ‘longstanding,’” Counts said in that ruling, dismissing a claim made in the Supreme Court’s landmark Heller decision.
However, he also outlined how he believed the conviction ban could be constitutional under the Bruen test even without a historical gun law as an analogue. Instead of relying on gun laws, Counts argued, it is better to look at how groups have been excluded from the political rights afforded to “the people.” Those historical examples provide a better guide, he said.
And now, just a few days after laying out his hypothetical test for the convicted felon prohibition, he has applied it in practice.
A former New York financial regulator did not violate the NRA’s First Amendment rights by pressuring insurers not to work with them, and, if she did, she was protected by qualified immunity.
That’s what a three-judge panel at the Second Circuit Court of Appeals ruled on Thursday. Reversing a lower court’s holding, the panel argued Maria Vullo, the former Superintendent of the New York State Department of Financial Services, did nothing wrong when she wrote a letter to financial institutions urging them to drop relationships with the NRA and other “gun promotion organizations” after the 2018 Parkland school shooting. It said Vullo “acted reasonably and in good faith” using methods that were constitutional.
“[W]e conclude that the NRA has failed to plausibly allege that Vullo ‘crossed the line ‘between attempts to convince and attempts to coerce,’” the court wrote. “Moreover, even assuming that Vullo’s actions and statements were somehow coercive, we conclude further that her conduct here–taking actions and making statements in her various capacities as regulator, enforcement official, policymaker, and representative of New York State–did not violate clearly established law.”
Federal Judge Partially Blocks Delaware ‘Ghost Gun’ Law
By Jake Fogleman
A new federal ruling casts doubt on a government’s ability to restrict the self-manufacture of firearms for personal use.
U.S. District Court Judge Maryellen Noreika issued a preliminary injunction on Friday blocking the state of Delaware from enforcing provisions of its recently-passed law outlawing the manufacture and possession of unserialized firearms and unfinished firearm components. The judge noted that the plaintiffs in the case were likely to succeed in proving the provisions that prohibit manufacturing unserialized firearms “are unconstitutional” at trial.
“These statutes burden constitutionally protected conduct because possession of firearms and firearm frames and receivers is within the scope of the Second Amendment’s right to ‘keep and bear Arms’ and Defendant has not shown that these firearms and components are not commonly owned by law-abiding citizens for lawful purposes,” Judge Noreika wrote in her opinion. “Further, Defendant has offered no evidence that these statutes are consistent with the nation’s history of firearm regulation.”
California’s attempt to evade judicial review of its gun laws has drawn a fresh legal challenge.
A coalition of gun-rights groups filed a new suit in federal court on Monday to block Section 1021.11 of California’s recently passed Senate Bill 1327. The new law, set to take effect at the beginning of next year, would shift the burden of paying legal fees to gun-rights litigants challenging the state’s laws, even if they’re successful in court.
“In its effort to silence any opposition to unconstitutional gun control laws, the California Legislature adopted this new statute which details when and under what circumstances attorney’s fees may be awarded in cases challenging those gun laws,” Alan Gottlieb, Second Amendment Foundation (SAF) founder, said in a statement. “Essentially, this new law is designed to suppress any defense of the Second Amendment in court by imposing standards that violate the First Amendment. The law upends Congress’s regulation of fee awards by, among other things, purporting to change who may be considered a ‘prevailing’ party entitled to fees.”
Gun Group Sues Philadelphia Over Latest Gun-Carry Ban
By Jake Fogleman
The City of Philadelphia has decided to test Pennsylvania’s firearm preemption law again. It is getting sued again.
Philadelphia Mayor Jim Kenney (D.) signed an executive order on Tuesday banning firearms in all city-owned recreational facilities. Less than 24 hours later, Gun Owners of America (GOA) filed suit against the order in state court.
“Pennsylvania law expressly preempts the Mayor from banning firearms in public recreational facilities,” the complaint reads. “Nonetheless, Mayor Jim Kenney has attempted to do so. He may not. Pennsylvania law is “crystal clear”: regulation of firearms is a matter of statewide concern, and must be undertaken by the General Assembly.”
We’re focusing on a new federal court ruling calling the federal felony gun ban into question this week.
That’s why we’ve got George Mason University’s Robert Leider on the podcast. He is an assistant professor at the Antonin Scalia Law School who has clerked for Justice Clarence Thomas. He has also written extensively about Second Amendment law.
Plus, Contributing Writer Jake Fogleman and I talk about new polls that show how Beto O’Rourke’s gun-control push in Texas is playing out. And Reload Member Bobby Mercer joins the show to talk about how he got into guns as well as what The Liberal Gun Club is and why he joined it.
You can listen to the show on your favorite podcasting app or by clicking here. You can also watch the show on our Youtube channel. Shows come out every Monday. However, Reload Members get access on Sunday AND the opportunity to appear on the show!
New York’s gun-carry law is back in federal court, and this time its fate might be sealed.
At the end of last month, US District Judge Glenn Suddaby rejected an attempt by gun-rights advocates to block the state’s Concealed Carry Improvement Act (CCIA) from taking effect. He dismissed the suit without prejudice after determining the plaintiffs in the case, Gun Owners of America (GOA) and a New York gun owner, “failed to demonstrate standing.”
The dismissal allowed the new law to take effect starting on the first day of this month. As a result, gun owners hoping to obtain a permit to carry a firearm in public for self-defense must now demonstrate that they possess “good moral character” by disclosing their social media accounts for review, providing four character references, and conducting in-person interviews with law enforcement officials. They must also pass 18 hours of classroom and live fire training through a state-approved training course that has yet to be developed.
Additionally, those who do obtain a permit are now barred from carrying on private property unless the owner posts a sign explicitly allowing it. They’re also barred from carrying anywhere the state has declared a “sensitive location,” defined broadly to include all of Times Square and most public property in the state. The places deemed off-limits to lawful carry are construed so broadly, that when asked by reporters where a law-abiding licensee might be able to carry under the law, New York Governor Kathy Hochul (D.) glibly responded “probably some streets.”
The rushed nature of the provisions in the bill, combined with its felony penalties for those who do not comply, has already wreaked havoc across areas of the state for even the most benign activities. A ceremonial 21-gun salute by New York state officials commemorating the anniversary of the 9/11 terrorist attacks was forced to take place at a consenting gas station this month, rather than at a county court house, due to the law’s no-exceptions ban on gun carry on government property. Musket-wielding Civil War reenactors have been forced to cancel their events out of fear of being arrested.
However, because the previous attempt to have the new law thrown out in court was dismissed without prejudice, the plaintiffs had the option of filing another suit on the same cause of action at a later date. And that is exactly what they did.
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Speaking at the Gun Rights Policy Conference
I’m giving the keynote speech at the Gun Rights Policy Conference this weekend in Dallas, Texas. I’ll be around on Friday and Saturday. My speech is at Saturday’s luncheon. So, if you’re attending the conference, make sure you reach out and say hello!
Outside The Reload
That’s it for this week in guns.
I’ll see you all next week.