When the Supreme Court handed down Bruen I think most people expected hardware bans would be next on the chopping block. That’s where all the energy on the gun-rights side was focused. It’s also where the Court itself focused when deciding what cases to grant, vacate, and remand for further hearings.
Instead, the immediate effect has been seen in criminal cases that litigate who can be barred from owning a gun rather than what kind of guns and accessories can be banned. The Supreme Court’s next Second Amendment case is on whether people subject to domestic violence restraining orders can own guns (and we have an analysis piece from gun-rights scholar Mark W. Smith on the challenges facing amici in that case). It will probably have to take another one on whether even non-violent felons can buy firearms (as Contributing Writer Jake Fogleman explains in his own analysis piece).
But this week we saw significant movement on one kind of hardware ban: ammunition magazine capacity limits. California’s magazine ban was struck down as a violation of the Second Amendment. But Washington’s ban wasn’t. Jake dives into the key question that divided the two judges in those cases, and that’s dividing judges across the country.
The House also passed a bill fixing language in the Bipartisan Safer Communities Act that cut off funding for school hunting and archery programs. The Senate just passed its own version. There was almost no opposition to it. We’ll see what President Joe Biden does with it, but it seems Congress may actually clean up its mess on this point.
Plus, Defense Distributed’s Cody Wilson joins the podcast to explain the company’s new AI model that can help you build a gun.
California Ammo Mag Ban Ruled Unconstitutional
By Stephen Gutowski
The Golden State’s ban on magazines that hold more than ten rounds of ammunition violates the Second Amendment.
That’s the ruling United States District Court Judge Robert Benitez handed down on Friday. He found the restriction on so-called high-capacity magazines failed the test for determining the constitutionality created by the Supreme Court last year.
“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”
Federal Judge Upholds Washington Ammo Magazine Ban
By Jake Fogleman
Washington state can continue to enforce its ban on the sale of commonly owned ammunition magazines, a federal judge ruled Monday.
U.S. District Judge Mary Dimke, a Joe Biden appointee, denied a motion for preliminary injunction filed by gun-rights advocates against the state’s magazine ban. She ruled that the plaintiffs failed to make a persuasive case that “large capacity” magazines are “arms.”
“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right,” Judge Dimke wrote in Brumback v. Ferguson. “The instant decision is primarily the result of Plaintiffs’ insufficient evidentiary showing, and should not be read to preclude a contrary finding at a trial on the merits.”
Click here to continue reading.
Analysis: Judges Diverge on Whether Second Amendment Protects Ammo Magazines [Member Exclusive]
By Jake Fogleman
Are ammunition magazines constitutionally protected arms? Or are they simply accessories incidental to the weapons covered under the Second Amendment?
Different judges have reached wildly different conclusions since the Supreme Court’s decision in NYSRPA v. Bruen last June, particularly regarding the so-called large capacity magazines often banned in blue states. It is no surprise then that the outcomes of the various legal challenges taking aim at those prohibitions have primarily been settled depending on which side a particular judge falls on this very question. Two major decisions handed down in the last week demonstrate this.
Last Friday, U.S. District Judge Roger Benitez struck down California’s ban on ammunition magazines capable of holding more than ten rounds.
“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”
Just three days later, U.S. District Judge Mary Dimke upheld Washington state’s nearly identical magazine ban.
“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right,” Judge Dimke wrote in Brumback v. Ferguson.
If you’re a Reload Member, click here to read the rest. If not, buy a membership today for exclusive access to this and hundreds of other pieces!
Analysis: The Pitfalls Facing Gun-Rights Amici in Rahimi
By Mark W. Smith
The United States v. Rahimi case that is currently pending before the Supreme Court potentially presents a clear and present danger to the originalist methodology of interpreting the Second Amendment as set forth in New York State Rifle and Pistol Association v. Bruen.
For those unfamiliar with Mr. Rahimi’s background and why this is a potentially difficult case for the Court, the following facts, as alleged in the court filings, reveal why this case may set a bad precedent for Second Amendment jurisprudence. In February 2020, he had a restraining order entered against him for dragging his girlfriend and then hitting her head on the dashboard of a car. After hitting his girlfriend he shot at a potential witness. He repeatedly violated his restraining order. In November 2020, he threatened another woman with a gun, leading to his arrest. Months later, police say Mr. Rahimi participated in five shootings, including in the presence of children.
These facts explain why it was a smart decision for Biden’s Attorney General Merrick Garland to put this case on the fast track to the Supreme Court. Rahimi is an apparently odious person, and Garland wants the Court to have to choose between defending Bruen and ruling in favor of him.
Click here to read the full analysis.
U.S. House Passes Bill to Restore Funding to School Hunting, Archery Programs
By Jake Fogleman
Congress is now one step closer to fixing a problem of its own creation.
The U.S. House of Representatives voted Tuesday to pass the Protecting Hunting Heritage and Education Act. The bill, which cleared the chamber on an overwhelmingly bipartisan 424-1 vote, would amend the 1965 Elementary and Secondary Education Act to specify that school archery, hunting, and shooting sports programs are eligible for federal funding. It would effectively undo an unintended consequence of last year’s Bipartisan Safer Communities Act (BSCA).
“Bureaucrats in Washington should never prevent our children from receiving safety and skills training in archery, hunting, and other shooting sports,” Representative Mark Green (R.–TN.), who introduced the bill, said in a press release. “Hunting, fishing, and archery are cornerstones of American culture, and it’s our duty to make sure that these traditions—and opportunities for students—are protected.”
Click here to read the full story.
Podcast: A New AI Promises to Help You Build a Gun (Feat. Cody Wilson)
By Stephen Gutowski
This week, we’re looking at a new AI product that promises to do what ChatGPT can’t: talk to you about building guns.
The cleverly named GatGPT went into beta this week. I got an early look at it. And, now, we’re having the head of the company behind it on the show to explain why they created it.
Plus, Contributing Writer Jake Fogleman and I discuss USCCA’s latest foray into the political realm.
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.
Analysis: SCOTUS Will Have to Weigh in on Non-Violent Felon Gun Rights Soon [Member Exclusive]
By Jake Fogleman
It’s becoming impossible for the Supreme Court not to weigh in on whether felons, or at least the non-violent ones, can own guns.
Since the Court handed down its landmark ruling in New York State Rifle and Pistol Association v. Bruen last June, lower courts across the country have been grappling with how to apply the case’s text, history, and tradition-based approach to deciding Second Amendment challenges—often arriving at competing conclusions. The constitutionality of banning felons from gun ownership for life has been among the most prominent questions they’ve addressed.
The federal felon-in-possession prohibition, or 18 U.S.C. § 922(g)(1) as it is formally known, permanently strips the Second Amendment right to keep and bear firearms from anyone who has been convicted in any court of a crime punishable by more than a year in prison. It’s a prohibition that has been relatively uncontroversial for most of its history, at least as far as American gun control laws go. It’s also been used prolifically by law enforcement. According to federal data from the U.S. Sentencing Commission, the vast majority of federal firearms law offenders (79 percent) are convicted under 922(g)(1).
However, in recent years, a growing body of gun-rights advocates, civil libertarians, and criminal justice reformers have taken an increasingly skeptical eye toward the prohibition, particularly regarding non-violent felons. That movement, combined with the Bruen decision’s burden-shifting test requiring the Government to demonstrate that its gun laws are constitutional, have placed the prohibition on a crash course toward imminent Supreme Court review.
If you’re a Reload Member, click here to continue reading. If not, join today for exclusive access to this and hundreds of other analysis pieces!
Outside The Reload
Indiana schools move to arm teachers with guns kept in biometric safes | Fox News | By Nikolas Lanum
Gavin Newsom signs gun tax, concealed carry restrictions into law | AP News | By Adam Beam
The changing face of gun ownership | The Washington Examiner | By Jay Caruso
That’s it for this week in guns.
I’ll see you all next week.
Thanks,
Stephen Gutowski
Founder
The Reload
