IL: Gunfight, Rideshare Driver Wounds two Armed Robbery Suspects

Chicago police say the 26-year-old driver was dropping off a passenger around 1 a.m. in the 1500 block of South Millard Avenue when two people – a man, 20, and an 18-year-old woman – walked up to him and announced a robbery.

The male suspect took the victim’s cell phone, then fired shots as the two robbers tried to flee the scene, police say.

Police say the driver, who is a concealed carry license holder, returned fire, striking the man in the leg and grazing the woman in the arm. The driver was not injured.

 

 

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Colorado: Ban on Puchase of Firearms by 18-20-Year-Olds Stopped by Court Order

On April 27, 2023, Governor Jared S. Polis of Colorado signed Senate Bill 23-169 into law. The bill increased the age of a person to legally purchase a firearm from 18 years of age to 21 years of age, preventing people under the age of 21 from legally purchasing firearms. Exceptions were provided for people in the United States armed forces or peace officers. The bill was challenged by the Rocky Mountain Gun Owners (RMGO) with two individuals plaintiffs in April, then amended in May. The RMGO and other plaintiffs asked for a preliminary injunction to prevent enforcement of the statute while the case is undergoing adjudication on July 7, 2023. Judge Philip A. Brimmer of the United States District Court for the District of Colorado, issued the preliminary injunction on August 7, 2023. Judge Brimmer ruled the right to keep and bear arms necessarily included the right to acquire arms. He concluded there was no significant historical record of United States governments prohibiting 18-20 year old people from acquiring arms.  From the opinion:

Several courts have ruled that the right to keep arms necessarily includes a right to acquire arms. See, e.g., Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (“the core Second Amendment right to keep and bear arms for self-defense wouldn’t mean much without the ability to acquire arms” (quotations and citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use.”); United States v. McNulty, --- F. Supp. 3d. ----, 2023 WL 4826950, at *4 (D. Mass. July 27, 2023) (“The text of the Second Amendment itself also suggests that the right to ‘keep’ firearms necessarily includes an ability to purchase, sell, or otherwise transfer firearms in order to keep oneself properly armed.”); Renna v. Bonta, 2023 WL 2846937, at *7 (S.D. Cal. Apr. 3, 2023)(“t he right to keep arms, necessarily involves the right to purchase them.”), appeal filed, No. 23-55367 (9th Cir. 28 Apr. 20, 2023). 

The Court agrees with the Individual Plaintiffs that the Second Amendment includes the right to acquire firearms and, therefore, protects the Individual Plaintiffs’ proposed conduct. See Teixeira, 873 F.3d at 677; Ezell, 651 F.3d at 704. For purposes of a preliminary injunction, the Individual Plaintiffs have sufficiently demonstrated a likelihood of success in showing their proposed conduct is covered by the plain text of the Second Amendment.

The State of Colorado is prohibited from enforcing the statute while the case is being adjudicated.

Judge Brimmer writes of a crucial distinction on what is acceptable regulation of the commercial sale of firearms. The regulation of commercial sales is on the seller of the firearms, not on the buyer of the firearms. From the opinion:

Second, the Governor fails to show that SB23-169 falls into the category of commercial regulations described by Heller. Regulations of the commercial sale of arms have been described as “condition[s] or qualification[s]” that “affect[] only those who regularly sell firearms.” United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016). SB23-169 does not base its prohibitions on 18-to-20 year olds because 18-to-20 year olds, as a group, regularly sell firearms. Rather, SB23-169 categorically bans an entire group of law-abiding citizens from purchasing firearms based on age. Additionally, the Court is not persuaded that the pre-Bruen cases the Governor cites, see Docket No. 28 at 9, suggest a different outcome for age-based firearm restrictions17  because these cases presume the lawfulness of the category of restriction and, as a result, do not follow the test for Second Amendment cases discussed in Bruen.

Much of the current law on the United States regulation of commercial sale of firearms affects the purchasers, not the sellers. The reasoning shown here seems to call into question much of the National Firearms Act and the Gun Control Act of 1968.

The opinion shows a critical understanding of standing and irreparable harm as it relates to constitutional rights. This understanding is in alignment with previous cases which found a violation of constitutional rights alone constitutes an irreparable harm. From the opinion:

Here, because SB23-169 likely causes a violation of the Individual Plaintiffs’ individual constitutional rights, see Aposhian, 958 F.3d at 990 (observing that “our cases finding that a violation of a constitutional right alone constitutes irreparable harm are limited to cases involving individual rights, not the allocation of powers among the branches of government”), resulting in damages that are potentially inadequately remedied by money and “difficult[ to] calculat[e],” Free the Nipple-Fort Collins, 916 F.3d at 806, the Court finds the Individual Plaintiffs have shown irreparable injury.

In the recent decision in the Ninth Circuit for the District of Hawaii, Judge Leslie E. Kobayhashi reaches a similar conclusion. If this reasonable understanding of irreparable harm from violations of constitutional rights becomes the standard in Second Amendment cases, as seems likely, lawsuits against the violation of Second Amendment rights become far easier to prosecute.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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WI: Teen Gunfight, Victim Wounded, Robbery Suspect Killed

MILWAUKEE — In what’s been reported as an act of self-defense, an 18-year-old allegedly shot and killed a 16-year-old who was trying to rob him and at least one other person at gunpoint near N 87th St & W Silver Spring Dr on Friday morning.

As reported by the Milwaukee Police Department and our news partners at TMJ4, authorities were alerted to a double-shooting near Valhalla Memorial Park around 10:40 a.m. on Friday, August 11. Investigators found that the suspect, an armed 16-year-old, attempted to rob at least two people at gunpoint.

However, one of the victims — an 18-year-old — was also armed at the time. The two individuals allegedly exchanged gunfire, leaving the 16-year-old robbery suspect with a fatal wound that eventually claimed his life. 

 

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Ninth Circuit: Hawaii Knife Ban is Unconstitutional

 

 

In 1999, Hawaii enacted a categorical ban on the possession, carry, and use of butterfly knives or "balisongs". The knives had been legal to possess before that time. In 2020, the ban on butterfly knives was challenged in court. The District court upheld the ban. The ban was appealed to the Ninth Circuit. On August 7, 2023, the three judge panel of the Ninth Circuit Court of Appeals reversed the District court, ruing the Hawaii ban was unconstitutional under the Second Amendment. The Supreme Court Bruen decision (June of 2022) was cited in the ruling. Of particular interest is the logic used by the three judge panel to show the plaintiffs in the case had standing to sue. The opinion shows how the requirement for standing has changed with the Heller decision in 2008. From the opinion, pages 9-10:

 When San Diego County was decided, our precedent held that “the Second Amendment [was] a right held by the states, and [did] not protect the possession of a weapon by a private citizen.” 98 F.3dat 1124 (cleaned up).3 In other words, to the extent San Diego County categorically held that a plaintiff cannot be injured by his inability “to purchase outlawed firearms,” id.at 1129–30, that was because our precedent had not yet recognized any individual right to keep and bear arms, id. at 1124. Of course, that precedent is “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003), with Heller’s recognition of the individual right to keep and bear arms. 554 U.S. at 595.

The three judge panel recognizes knives are arms protected by the Second Amendment. The opinion states an obvious fact, which should be cited more often in Second Amendment cases. Arms are going to be used by criminals. Just because arms are used by criminals is not a valid reason to prevent law abiding citizens from having those arms. From page 22 of the opinion:

In opposition, Hawaii cites some conclusory statements in the legislative history claiming that butterfly knives are associated with criminals. We give little weight to these statements. Common sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes. Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.

Having rejected Hawaii’s arguments to the contrary, we conclude that the possession of butterfly knives is conduct covered by the plain text of the Second Amendment.

Knife laws in Hawaii are somewhat restrictive. You may carry single-edged pocket knives, without a length restriction. It is illegal to carry daggers, dirks, knives with knuckles on them and illegal knives. It has been illegal to own balisong knives since 1999.

The three judge panel in the Ninth Circuit shows how important it was to have President Trump make judicial appointment. Senior Judge Carlos T. Bea, born in Spain, played basketball for Cuba in the Olympics, before the Castro revolution, was appointed by George Bush to the Ninth Circuit in 2003. Judge Daniel P. Collins was appointed by Donald Trump in 2019. Judge Kenneth K. Lee was appointed by Donal Trump in 2019.

The Ninth Circuit has a long history of taking decisions of three judge panels which uphold the Second Amendment to en banc panels, and reversing them. It remains to be seen if Teter v. Lopez will suffer the same fate. The procedure from Bruen is clear. The Hawaii government relied, primarily, on the argument about standing. An en banc panel might reverse the three judge panel, claiming the plaintiffs do not have standing. Standing has become a way for the judicial branch to decide what cases it is willing to hear.

The opinion has a good section on the history of restrictions on the possession and carry of knives in the United States. It is clear pocket knives were seldom restricted and were often specifically exempted from regulation. The opinion ends with this:

We conclude that section 134-53(a) violates the Second Amendment as incorporated against Hawaii through the Fourteenth Amendment. We reverse and remand for further proceedings consistent with this opinion.

Teter v. Lopez shows how important the Heller and Caetano decision were. They unambiguously state all bearable arms are protected by the Second Amendment.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Burglar Kidnaps Woman, Man Shoots Burglar

The neighbor said he also went outside to see what was going on, and that’s when he noticed the wounded man on the ground.

He says he later saw surveillance video of the conflict.

The neighbor said it showed the suspected burglar dragging a woman by her hair minutes before he was shot.

“He was holding her at gunpoint at one point, walking across the part of the buildings,” the neighbor said. “Then they walked back toward the vehicles in the background, and he strikes her in the face three times.”

Police say the resident who fired the shots told them the suspected burglar, at one point, had been holding his girlfriend at gunpoint.

 

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NICS Numbers for July, 2023, Fifth Highest gun sales, Sixth Highest Background Checks

Lines are for 2022 numbers, bars are for 2023 numbers

 

The National Instant Background Check System (NICS) show another slide in gun sales and background checks for July of 2023. According to my calculations, the gun sales for July of 2023 have dropped 17.8% from July of 2022. The NICS total back ground checks declined about 16.8% from July of 2022. July of 2023 comes in fifth for total gun sales of all July numbers since 1999, and sixth in NICS background check numbers since 1999, which was the start of the NICS system.

The number of gun sales calculated come to about .98 million. The National Shooting Sports Foundation NSSF has released their estimates for gun sales in July. There is uncertainty in determining how many background checks translate to gun sales. This correspondent's calculations and the NSSF numbers are reasonably close. From the NSSF:

The July 2023 NSSF-adjusted National Instant Criminal Background Check System (NICS) figure of 1,023,903 is a decrease of 17.0 percent compared to the July 2022 figure of 1,233,115. For comparison, the unadjusted July 2023 FBI NICS figure 1,987,650 reflects a 15.7 percent decrease from 2,358,150 in July 2022. July 2023 marks the 48th month in a row, four years, that has exceeded 1 million adjusted background checks in a single month.

While the .98 million falls below one million in a month by this correspondent's calculations, the NSSF adjustment shows gun sales of over a million for 48 months straight. It represents a new normal in firearms sales based on increasing numbers of gun owners.

In some segments of the firearms market supply may be overcoming demand. As that happens, prices drop.  There are perfectly good AR-15 rifles on the market for less than $400. The price when the first AR-15 rifles were offered to the public by Colt in 1964, was $189.50. Dollars in 1964 were worth much more than they are today. A dollar in 1964 was worth about $9.84 of todays dollars. The comparable price of the Colt AR-15 today would be $1,865. Effectively, we can purchase rifles comparable to the first Colt AR-15 rifles for one fourth the earning power it took in 1964. This is because the initial costs in development have been amortized and the productivity of men and machines has increased enormously in the last 60 years. If the purchaser is willing to forego any warranty, and purchase a complete lower receiver, which requires a NICS check, and a complete upper receiver on sale,  one may obtain an AR-15 rifle, sans sights and magazine, for about $300. This is an amazing bargain.

One of the reasons for sales of a million guns a month is simple. Guns are relatively cheap compared to decades past.  Ammunition is similarly less expensive in the number of hours worked to purchase cartridges. An obvious exception are surplus military cartridges. In times past, they have often been available at far below the cost of production. Increasing numbers of gun owners and the continued uncertainty in domestic politics and international affairs are part of the reason for continued gun sales of about a million guns a month. The latest addition of a million guns sold in July of 2023 brings the estimate of the total stock of private firearms in the United States of America to 498 million. Barring some unexpected and extreme event, the private stock of firearms in the United States will reach half a billion in 2023.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Domestic Defense, Woman Shoots Ex who Attacked Her

According to police, a woman was walking to her car to go to work when she noticed her former boyfriend, Brandon Webb, standing between two cars across the parking lot – presumably waiting for her to come out of her apartment. She tried to get into her car before he could get to her, but he managed to push the door back open. Webb made some comment about how she was dressed and then attacked her as she sat in the drivers seat. During the struggle, he began to try to shave her head with a pair of electric clippers that he’d brought with him. She wound up with several cuts on her forehead and neck from the clippers. With Webb still attacking her, she managed to grab her pistol from her console and fired one shot in his direction, which she believed hit him because he fell several times as he tried to run away. She immediately called 911.

 

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Fargo N.D. Argues "Home rule" allows it to Supercede State Preemption Law

 In 2001, Fargo, North Dakota, used the vehicle of zoning ordinances to prevent people from selling guns and/or ammunition from their homes.  The ordinance was mostly ignored until some residents decided to renew their Federal Firearms Licence (FFL) in 2020. Fargo considered changing the ordinance, but did not do so. In 2021, North Dakota strengthened its preemption statute to this language:

1. A political subdivision, including home rule cities or counties, may not enact a zoning ordinance or any other ordinance relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.

Fargo challenged the new preemption statute, claiming the state did not have the power to regulate zoning.  District Judge Stephannie Nicole Stiel ruled in 2022 the preemption ordinance did not apply to Fargo zoning, because state law did not regulate commercial sales of firearms.  From inforum.com:

Stiel terminated the uncertainty and controversy in her 2022 ruling by saying that cities “can enact zoning ordinances regulating home occupations and restricting uses of land relating to the purchase, sale, ownership and possession, transfer of ownership, registration, or licensure of firearms and ammunition.”

Stiel summarized the state’s argument by saying the state has preempted the area of law dealing with firearm regulation, “and because there is no state law, there is no restriction and any restriction would be more restrictive.”

Stiel summarized the city’s argument by saying that city ordinances are not more restrictive than state law because there is no state law on the issue.

The North Dakota legislature was quick to take action against this challenge to its authority. It passed HB1340, which made clear political subdivisions of the state did not have any authority to regulate firearms in zoning ordinances, unless the regulations applied to all businesses in the zoning. They also clarified the language in the law to show state law did not allow political subdivisions to specifically target firearms or firearms use. HB1340 passed 83-10 in the House on February 20th 2023, and 41-6 in the Senate on April 5th. It was signed by Governor Burgum on April 12, 2023. The bill is very specifically denies political subdivisions from enacting gun bans through zoning.  Here is the new, improved legislation. From HB1340:

62.1-01-03. Limitation on authority of political subdivision regarding firearms- Civil action.

1. A political subdivision, including home rule cities or counties, may not enact any ordinance relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.

2. A political subdivision, including home rule cities or counties, may not enact a zoning ordinance relating to the purchase, sale, ownership, possession, transfer of ownership,registration, or licensure of firearms and ammunition. All such existing ordinances are void.

3. This section does not limit the ability of a political subdivision, including home rule cities or counties, to enforce an ordinance or zoning regulation relating to a business operation if the restriction in the ordinance or regulation:

a. Applies equally to all persons engaging in commerce within the area subject to the ordinance or regulation; and

b. Is not specifically related to the purchase, sale, ownership, possession, transfer of ownership, registration, or licensure of firearms and ammunition.

4. The absence of a state law restriction relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition may not be construed to allow a political subdivision, including a home rule city or county, to enact an ordinance restricting the purchase, sale, ownership, possession, transfer of ownership,registration, or licensure of firearms and ammunition.

5. A person aggrieved under this section may bring a civil action against a political subdivision for damages as a result of an unlawful ordinance.

It appears Fargo is not happy with the new legislation and will be challenging it in court. It is possible Judge Stiel will be the presiding judge.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Armed Security required at all Texas Public Schools in 2024

From the Groesbeck ISD press release

In the American colonial days, several colonies required colonists to be armed for public safety. Texas, in a statute designed to reduce the risk of mass murder at public schools, will require armed security at public schools starting next year. Texas bill HB3 passed in 2023. It requires an armed security officer at all Texas public schools K-12 starting in 2024.

Sec. 37.0814. ARMED SECURITY OFFICER REQUIRED. (a) The board of trustees of each school district shall determine the appropriate number of armed security officers for each campus; however, they shall ensure that at least one armed security officer is present during regular school hours at each district campus

(b) A security officer described by Subsection (a) must be:

(1) a school district peace officer;
(2) a school resource officer;
(3) a commissioned peace officer employed as security personnel under Section 37.081;
(4) a school marshal; or
(5) a school district employee who:
       (A) has completed school safety training provided by a qualified handgun instructor certified in school safety under Section 411.1901, Government Code; and
       (B) carries a handgun on their person on school premises in accordance with written regulations or written authorization of the district under Section 46.03(a)(1)(A), Penal Code.

HB3 lists only five ways for school districts to comply with the statute. Three of them are very expensive. They require officers who have extensive training in areas far beyond what is needed to defend against a mass killer. The cost of certified law enforcement officers (options 1-3) are about $100,000 a year. The fourth option is the school marshal program. The cost of a school marshal is about 80 hours to start, with renewal every two years. The fifth option is the school guardian program. The school guardian program is the least expensive and arguably the most effective option.  The cost of the school guardian program is about $800 to $1000 a year. About 450 Texas independent school districts (ISD) out of roughly 1040 ISDs are already participating in the school guardian program. 

The school guardian program, is allowed under Sec. 411.1901:

Sec. 411.1901. SCHOOL SAFETY CERTIFICATION FOR QUALIFIED HANDGUN INSTRUCTORS. 

(a) The department shall establish a process to enable qualified handgun instructors certified under Section 411.190 to obtain an additional certification in school safety. The process must include a school safety certification course that provides training in the following:

(1) the protection of students;

(2) interaction of license holders with first responders;

(3) tactics for denying an intruder entry into a classroom or school facility; and

(4) methods for increasing a license holder's accuracy with a handgun while under duress.

(b) The school safety certification course under Subsection (a) must include not less than 15 hours and not more than 20 hours of instruction.

(c) A qualified handgun instructor certified in school safety under this section may provide school safety training, including instruction in the subjects listed under Subsection (a), to employees of a school district or an open-enrollment charter school who hold a license to carry a handgun issued under this subchapter.

(d) The department shall establish a fee in an amount that is sufficient to cover the costs of the school safety certification under this section.

(e) The department may adopt rules to administer this section.

This correspondent predicts a steep rise in the number of Texas ISDs which participate in the school guardian program in 2024. 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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IN: Wife Shoots Kills Man who Attacked Husband in Front Yard

Davis, the post’s public information officer, said the investigation yielded information that Chastain showed up at that address and drove through the front yard.

He ultimately exited his vehicle and grabbed the homeowner and forced him to the ground before pulling a weapon and pointing it at the homeowner’s head, Davis said.

The homeowner’s wife noticed this from inside the home, grabbed her handgun and exited the house and ultimately shot Chastain, Davis said.

Chastain was transported to Ascension St. Vincent Hospital in Salem, where he was pronounced dead.

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Fifth Circuit: Pistol Brace Rule Illegal, likely Unconstituional under Second Amendment

Image from Rock Island arsenal
 

On August 1, 2023, a three judge panel for the United States Court of Appeals for the Fifth Circuit issued an order which found the "Final Rule" of the ATF, with regard to pistol braces, to be unlawful.  Part of the "Final Rule" claimed pistol braces, combined with legal pistols, made the combination "short barreled rifles" subject to the regulatory requirements of the National Firearms Act (NFA). This contradicted years of previous findings by the ATF. The three judge panel sent the case back to the trial court for a ruling on a preliminary injunction and on what injunctive relief is called for. The case is Mock v Garland.

The three judge panel decision was split. Two judges, Don R Willett and Jerry E Smith were in the majority. Judge Stephen A Higginson dissented. The decision is one of several involving the controversial "Final Rule" of the Biden administration ATF. It may be the Biden Administration will ask the Fifth Circuit to hear the case en banc, or the Biden administration may appeal the decision to the Supreme Court. Of particular interest is the concurrence written by Judge Don Willett. Judge Willet went on record as opining the regulation/law which defines pistols with shoulder stocks as "short barreled rifles" may well be unconstitutional by itself, without the regulatory mismanagement of the ATF in this case. From the order of the Court page 41:

Don R. Willett,Circuit Judge, concurring: 

I join the majority’s careful opinion in full measure. I write separately because I suspect that the Final Rule would likely fail constitutional muster even if it were a logical outgrowth of the worksheet idea that preceded it.

Rearward attachments, besides making a pistol less concealable,improve a pistol’s stability, and thus a user’s accuracy. Accuracy, in turn, promotes safety. Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer. 

Instead, the NFA tends to regulate weapons that inflict indiscriminate destruction: “machinegun[s]”,short-barreled “shotgun[s],” and “smooth bore” weapons (and for that matter, “explosive[s]”, “grenade[s]”, and “poison gas”).1 Weapons that begin as rifles, too, are more difficult to keep accurate once the barrel starts shrinking. 

In my view, protected Second Amendment “conduct” likely includes making common, safety-improving modifications to otherwise lawfully bearable arms.2 Remember: ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment. Congress might someday try to add heavy pistols to the NFA and the GCA, but it hasn’t yet. These pistols are therefore lawful. Adding a rearward attachment—whether as a brace or a stock—makes the pistol more stable and the user more accurate. I believe these distinctions likely have constitutional significance under Bruen.

The dissenting Judge, Stephen A Higginson, disagrees. From the dissent by Judge Higginson on page 56:

I disagree that these braces are, in relevant regard, “safety-improving modifications.” After all, as a plurality of the Supreme Court has observed, it is “clear from the face of the [NFA] that [its] object was to regulate certain weapons likely to be used for criminal purposes,” and “the regulation of short-barreled rifles . . . addresses a concealable weapon likely to be so used.” United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517 (1992) (plurality opinion) (emphasis added). Indeed, as some commenters observed in response to ATF’s proposed rule, “short-barreled rifles are uniquely dangerous because they ‘combine the power of shoulder-mounted rifles with the concealability of handguns’ and . . . ‘stabilizing braces’ are functionally equivalent to shoulder stocks.” Final Rule at 6,498. Other commenters, “including former law enforcement officers,” favored the proposed rule because braced pistols, “as evidenced by their use in the Boulder[, Colorado] and Dayton[, Ohio] mass shootings, ‘are unusually dangerous because they can be easily concealed like a handgun but have the firepower and accuracy of a rifle.’” Id. (emphases added). Increased concealability and accuracy, at least in the hands of killers, is not “safe”—it is lethal.

Analysis:

Judge Higginson does not mention the Thompson/Ctr. Arms Co. case occurred long before the Heller decision in 2008, or the McDonald decision in 2011, or the Bruen decision in 2022. All of those decisions would now be relevant to the 1992 case, but did not exist when the case was settled. Moreover, Judge Higginson conveniently does not mention handguns with shoulder stocks are less concealable than handguns without shoulder stocks. This argument is a variation of the "guns are bad, more guns are more bad" simplistic premise shown to be false over the last 50 years and more.  Shoulder stocked handguns were not considered during Congressional debate in 1934. They were not formally found to be "short barreled rifles" until 1961. Handguns with shoulder stocks were in common use for lawful purposes long before the 1934 law was passed. They are not "dangerous and unusual". They are bearable arms in common use, protected under the Second Amendment. Judge Willet is showing how this may be seen by the Supreme Court.

Following this line of reasoning, it should be expected silencers/suppressor or gun mufflers would also be protected under the Second Amendment. A shoulder stock is an accessory which makes a protected arm safer and more effective. Exactly the same can be said of a silencer/suppressor.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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OK: Man Breaks into House with Shovel, is Shot by Homeowner

A man who police believe was having a mental health event broke into the house of a relative early Tuesday and was shot by the homeowner. 

The suspect,51-year-old Dustin Personette, was armed with a shovel when he entered a home in the 1200 block of East Yakima Street, on Broken Arrow's north side, around 1:20 a.m.

Police responded to the home for a report of a domestic disturbance and found Personette inside with a gunshot wound. The homeowner, who is related to the suspect, has not been charged so far  and is cooperating with the police investigation.

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Arkansas Passes Bill to Protect the Right of Medical Marijuana Users to Obtain a Concealed Carry License

The state of Arkansas has created a law to protect the ability of medical marijuana users in the state to obtain a concealed carry handgun license. HB1784 was introduced on March 29, 2023. On April 4th, 2023, the House voted for bill HB1784, 82 to 5, with 8 not voting and 5 not present. On April 7, 2023, the Senate voted for the bill HB1784, 26 to 3, with two not voting and two not present. HB1724 was signed by Governor Sarah Huckabee Sanders (R) into law on April 12, 2023. Here are relevant excerpts. From the Arkansas State Legislature:

(B) The director shall not consider a person’s status as a qualifying patient or designated caregiver under the Arkansas Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98, § 2, in determining whether an applicant is eligible to be issued a license to carry a concealed handgun under this subchapter.

(skip)

(C) An applicant shall not be considered to chronically or 13habitually abuse a controlled substance based solely on the applicant’s 14status as a qualifying patient or designated caregiver under the Arkansas 15Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98.

 This part of the statute prohibits the Arkansas Department of Health from disclosing the status of a person as a marijuana user in a criminal history check or other background check which will be used in the consideration of the issuance of a concealed carry handgun license.

20-56-308. Firearm rights protections.

(a) The General Assembly finds that under Arkansas Constitution, Amendment 98, § 5(f), a person’s status as a qualifying patient or designated caregiver is confidential.

(b) The Department of Health shall not disclose the identity of a person who has been issued a registry identification card to the Division of the Arkansas State Police for the purpose of facilitating a criminal history record check or any other background check related to the issuance of a license to carry a concealed handgun under § 5-73-301 et seq.

(c) The Director of the Division of Arkansas State Police shall not consider a person’s status as a qualifying patient or designated caregiver under the Arkansas Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98, § 2, in determining whether an applicant or licensee is eligible to be issued a license to carry a concealed handgun under § 5-73-301 et seq.

The Arkansas law takes effect on August 1, 2023.  

Arkansas is a Constitutional Carry state. No permit is needed to carry a loaded handgun, openly or concealed. The permit is useful to carry in other states which recognize the Arkansas permit.

On the federal level, U.S. District Court Judge Patrick R. Wyrick found the prohibition on Marijuana users from purchasing and owning firearms in federal law to be unconstitutional. The case is in the Western District of Oklahoma in the Tenth Circuit Court of Appeals. The United States Attorney has filed an appeal to the Tenth Circuit Court of Appeals. 

A bill, H.R.2772, the GRAM Act, has been filed in Congress to remove marijuana from the list of substances whose use disqualifies a person from being able to legally purchase a firearm or to posses one. The act does not appear to have much support at present. 

Such disqualifiers are recent additions to federal law. They do not have historical precedents. In time, this correspondent expects they will be found to be unconstitutional at the Supreme Court.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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IN: Man Stabbed, Attacker Shot ... Over Facebook?

According to EPD, the man with the stab wound said that Baptiste had attacked them when they fired their gun in self defense.

When police questioned Baptiste, they say he told them he had been arguing with the victim on Facebook, and that he went to the victim's apartment to fight and settle the argument.

Baptiste claimed he didn't know who stabbed the victim, according to EPD, and that the victim must have been stabbed after he left the area.

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A Silly Argument: the Second Amendment Insurrectionist Purpose

Heading of the Bill of Rights from Congress 

One of the silliest arguments about the purposes of the Second Amendment is put forward this way. The newly formed Constitutional government would never have created an amendment with the purpose of destroying the government just created. Here is an example from the far-left eugeneweekly.com:

That newly created narrative included the supposed purpose of arming citizens in order to enable them to rebel against the very constitutional government which the Founders were establishing with its checks and balances. This despite the Founders having defined treason as taking up arms against that very government.

But this glaring contradiction persisted and found a home within the halls of the Supreme Court, whose collective wisdom may have suffered from the influx of unreported gifts by billionaires to a number of justices weighing in on the question.

The writer does not appear to have read the history of the Revolutionary War, the Federalist Papers, the arguments surrounding the Bill of Rights, the rudiments of the political theories the Constitution is based on, or the Constitution itself. Knowledge of any one of these fields provides ample refutation of the argument above.

One of the principle causes of the Revolutionary war was the attempt by the Government of England, specifically the King, to disarm the American colonists. The proximate start of the war resulted from an attempt by the Crown to confiscate privately and publicly owned weapons, resulting in the battles of Lexington and Concord. During the war, a British minister proposed disarming all the colonists, in perpetuity. Having just defeated a government bent on their disarmament, the successful revolutionaries were not about to grant such a power to the newly formed government of the Constitution.

During the argument about ratification of the Constitution in the Federalist papers, those who were concerned about the centralization of power in the federal government, demanded more checks and balances on the newly formed government.  From gun quotations of the founding fathers:

 “Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

 “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
- James Madison, Federalist No. 46, January 29, 1788

The Bill of Rights was ratified in December of 1791. It was demanded by the anti-federalists as a check on the powers of the new federal government. It enhanced the existing checks and balances of the Constitution. The people who demanded the Bill of Rights were not those who created the Constitution. They were those who warned of the centralization of power in the Federal government. The Bill of Rights was proposed by the anti-federalists and enthusiastically passed by the states with the overwhelming support of the people. It was not those who proposed and wrote the Constitution who demanded, passed, and ratified the Bill of Rights, including the Second Amendment. It was those who were leery of centralized power, who demanded more restraints on the power of the new government. There is no contradiction in this action.

The political theories the Constitution is based on are those of Natural law and Natural rights, theories the founders avidly agreed with and supported. The Second Amendment is a direct product of the theory of Natural Law, which holds no one, including government, has the right to take a person's life or property without due process. Because evil exists in the world, and many are willing to illegitimately take life or property, or to destroy communities, the means to defend your life, property or community is protected. The right to life fundamentally includes the right to effective means to defend your life.  The  American revolutionaries understood the flaw in the English Bill of Rights, as put forward by Sir William Blackstone. When they  created their distinctly American version of the right to arms, they made it far more powerful and restrictive than the English law which had failed them. St. George Tucker was a prominent revolutionary. As a legal scholar, he rose to the highest level of importance in the early United States. Tucker explained the difference of the treatment of the natural right to arms in England v. the new United States:

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2, and its indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

Blackstone was explaining the 1689 English Bill of Rights, which provided: "That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions, and as allowed by Law."

Tucker added his own analysis in two footnotes:

"The right of the people to keep and bear arms shall not be infringed. Amendments to the C.U.S. Art. 4 and this without any qualification as to their condition or degree, as is the case in the British government."

The Constitution itself belies the idea the founders would not have included a means to defend against a government which might become tyrannical. The checks and balances in the Constitution are a basic defense against such tyranny. There is no contradiction in including protection of another basic defense. The right of the people to keep and bear arms is not created by the Constitution, it is protected by it as an additional defense against  a government which may become tyrannical. The founders were well aware of the history of governments accumulating power to themselves and turning against the people.

The idea the people who formed the new Constitution would reject their recent experience in the Revolutionary war, reject the commitments to create a Bill of Rights, reject the historical importance of the individual right to keep and bear arms, because they feared arms in the hands of the people, is ridiculous.  The idea the new government chose to limit itself is false. It was the people who opposed the centralization of power who forced the Bill of Rights to be added to the Constitution, as additional protections against a potential future tyranny.

Those who claim there should be no limitations on governmental power push such silliness to centralize more and more power in the  hands of government.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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NM: Clovis Woman Shoots Man During Reported Burglary

One man is dead after police received a report of a burglary in progress Friday morning.

Officials said a woman who lives in the 700 block of Dawn Loop in Clovis is the shooter. She was detained and questioned by police on Friday, but no charges were immediately filed. “We’re still awaiting autopsy results and deciding whether to take it to a grand jury,” Police Lt. Steven Wright said late Saturday morning.

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HI: Lawsuit Filed Against Hawaii Ban on Guns in Most Public Places

Hawaii has been one of the states with the most severe infringements on Second Amendment rights. Hawaii became a territory of the United States in 1900. Hawaii became a state in 1959. Hawaii therefore has no history of American laws which apply to the test established by the Supreme Court Bruen decision. History after 1900 is not allowed, and Hawaii has no history as an American territory before 1900. This did not stop the government of Hawaii from claiming Hawaii history as a kingdom should be used as a precedent for Hawaii's extremely restrictive gun control laws. The Supreme Court disagreed. In response, the Hawaii government passed a very restrictive carry law. Carry outside of the home, either openly or concealed, requires a permit. The law used the responses of New York, and New Jersey, as guides and created so many designated "sensitive places" it is nearly impossible for a permit holder to carry a concealed firearm in public, legally.

The Hawaii Firearms Coalition responded with a lawsuit. From courtlistener.com:

Plaintiff Hawaii Firearms Coalition (HIFICO) is a member driven organization incorporated under the laws of the State of Hawaii with its principal place of business in Honolulu, Hawaii, Hawaii Firearms Coalition promotes legislative and legal action, as well as research, publishing, and advocacy, in support of people’s civil liberties.

The case is found as Wolford v Lopez on courtlistener. in the complaint, the plaintiffs explain how the Bruen decision does not allow Hawaii to effectively neuter the right to carry arms in public by labeling most public and private spaces. From the complaint:

The Bruen Court struck down as unconstitutional New York’s “proper cause” requirement for issuance of a permit to carry a handgun in public. In doing so, Bruen explicitly rejected New York’s attempt to justify its restriction as analogous to a historical “sensitive place” regulation. 142 S.Ct. Case 1:23-cv-00265-JAO-WRP Document 1 Filed 06/23/23 Page 7 of 71 Page ID.7 at 2133-34. The Court explained that a state may not simply ban guns wherever people may “congregate” or assemble. A rule that “expand[ed] the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.” 142 S.Ct. at 2134. As the Court explained, “[p]ut simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” Id; 18. If a state seeks to restrict firearms in a particular location as a “sensitive place,” then it must prove that its current restriction is sufficiently analogous to “well-established and representative historical analogue.” In Bruen, the Court identified only five such locations that may have a historical basis: “schools and government buildings” as well as “legislative assemblies, polling places, and courthouses.” Id. At 2133, citing District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Bruen held that the lower “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Id;

The Hawaiian government created fifteen categories of places it labeled as sensitive. These include nearby land and parking lots which make carrying a concealed firearm in public essentially impossible. Here are the fifteen categories as shown in the text. The fifteen categories are found on pages 15 - 19 of the complaint:

(1) Any building or office owned, leased, or used by the State or a county, and adjacent grounds and parking areas, including any portion of a building or office used for court proceedings, legislative business, contested case hearings, agency rulemaking, or other activities of state or county government;

(2) Any public or private hospital, mental health facility, nursing home, clinic, medical office, urgent care facility, or other place at which medical or health services are customarily provided, including adjacent parking areas;

(3) Any adult or juvenile detention or correctional facility, prison, or jail, including adjacent parking areas;

(4) Any bar or restaurant serving alcohol or intoxicating liquor as defined in section 281-1 for consumption on the premises, including adjacent parking areas;

(5) Any stadium, movie theater, or concert hall, or any place at which a professional collegiate, high school, amateur, or student sporting event is being held, including adjacent parking areas;

(6) All public library property, including buildings, facilities, meeting rooms, spaces used for community programming, adjacent grounds, and parking areas;

(7) The campus or premises of any public or private community college, college, or university, and adjacent parking areas, including buildings, classrooms, laboratories, research facilities, artistic venues, and athletic fields or venues;

(8) The campus or premises or any public school, charter school, private school, preschool, summer camp, or child care facility as defined in section 346-151, including adjacent parking areas, but not including: (A)A private residence at which education is provided for children who are all related to one another by blood, marriage, or adoption; or (B)A dwelling when not used as a child care facility;

(9) Any beach, playground, park, or adjacent parking area, including any state park, state monument, county park, tennis court, golf course, swimming pool, or other recreation area or facility under control, maintenance, and management of the State or a county, but not including an authorized target range or shooting complex;

(10) Any shelter, residential, or programmatic facility or adjacent parking area operated by a government entity or charitable organization serving unhoused persons, victims of domestic violence, or children, including children involved in the juvenile justice system;

(11) Any voter service center as defined in section 11-1 or other polling place, including adjacent parking areas;

(12) The premises of any bank or financial institution as defined in section 211D-1, including adjacent parking areas;

(13) Any place, facility, or vehicle used for public transportation or public transit, and adjacent parking areas, including buses, paratransit vans, bus shelters and terminals (but not including bus stops located on public sidewalks), trains, rail stations, and airports;

(14) Any amusement park, aquarium, carnival, circus, fair, museum, water park, or zoo, including adjacent parking areas;

(15) Any public gathering, public assembly, or special event conducted on property open to the public, including any demonstration, march, rally, vigil, protest, picketing, or other public assembly, for which a permit is obtained from the federal government, the State, or a county, and the sidewalk or street immediately adjacent to the public gathering, public assembly, or special event; provided that there are signs clearly and conspicuously posted at visible places along the perimeter of the public gathering, public assembly or special event”;

 

In addition, all private property is dictated by the government as banned for the carry of arms unless the property owner or manager gives explicit permission to carry on the property.

This use of the "sensitive places" label as a proxy to deny the right to carry arms in public is being contested in New York and New Jersey. The cases are making their way through the courts. The current justices on the Supreme Court are unlikely to look kindly on this sort of twisting of the Bruen decision. Hawaii is in the ninth circuit, which has been hostile to affirming rights protected by the Second Amendment. If the District judge rules against the State of Hawaii, which seems likely, expect the case to be appealed to the Ninth Circuit.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Justice Alito Grants Temporary Stay of Fifth Circuit Decision finding ATF "Final Rule" on Receivers and Frames Illegal

On July 27, 2023, the Attorney General of the Biden Administration, Merrick B. Garland, submitted an application for a stay to Justice Alito at the Supreme Court, in the case of VanDerStok v. Garland. The request for an emergency stay had been refused by a three judge panel of the United States Court of Appeals for the Fifth Circuit on July 24, 2023, as reported on AmmoLand.  One of the possibilities mentioned was the Biden administration would appeal directly to the Supreme Court. The possibility of a request for an en banc decision existed, but was unlikely because the Fifth Circuit has been following the Supreme Court guidance in the Bruen decision for enforcing Second Amendment rights, and because an en banc panel would not have been emplaced for a period of time.

The request for an emergency stay to the Supreme Court is based on the false notions the Final Rule of the ATF on receivers and frames is somehow related to public safety; that "public safety" overrides the Constitution; and that the Executive branch (the Biden Administration) must act because the Legislative branch will not do so.  From page 6:

The district court’s universal vacatur is irreparably harming the public and the government by reopening the floodgates to the tide of untraceable ghost guns flowing into our Nation’s communities.

If this sounds like the familiar song and dance put forward by dictators and authoritarians all over the world, you are correct.

The Final Rule put forward by the ATF reverses over five decades of precedent because the Biden administration wants to do it. Here are some of the arguments put forward in the application filed.  From the request for an emergency stay: Page 3

The Rule does not prohibit the purchase, sale, or possession of any firearm, nor does it prohibit any individual lawfully entitled to possess a firearm from making one at home. Instead, it simply requires compliance with the uncontroversial federal laws “imposing conditions and qualifications on the commercial sale of arms,” District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008).

This is false. The rule prohibits the manufacture of firearms by individuals who are unwilling to submit to the inclusion of their firearms on a federal data system, using tools and parts which have been available for decades. The Gun Control Act has always been controversial. It passed in 1968 because of the unrelenting pressure of President Johnson and the dominant media, leveraging the emotional tumult of the assassinations of Bobby Kennedy and Martin Luther King. It has remained particularly controversial, and has only stayed in effect because the courts have refused to honor rights protected by the Second Amendment. With the publishing of the Supreme Court Bruen decision, restoring Second Amendment protections, numerous provisions of GCA 68 are being challenged in the Courts.  The ban on possession of a firearm where the serial number has been removed is being challenged as well.

page 6:

This Court should stay the district court’s vacatur in full. A stay would prevent further irreparable harm to the public while allowing the litigation in this case and other challenges to the Rule to proceed in the ordinary course. But given the gravity and urgency of the public safety issues at stake, if the Court is not prepared to grant a stay it may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for argument this fall.

The claim there is irreparable harm to the public is laughable. There are hundreds of millions of firearms already in circulation in the United States. Hundreds of millions of them are already "untraceable". Once a firearm is more than a few years old, "tracing it" is an exercise in futility. Tracing firearms is virtually useless in solving violent crimes. Criminals almost never leave firearms which can be traced to them at the scene of a crime. All that is accomplished by tracing is to waste public resources on the accumulation of useless data. Even full blown registration of firearms almost never is used to actually solve crimes. The idea of "tracing guns" as a useful crime fighting tool is a myth. The serious danger to a viable Second Amendment is the potential of a national gun registry using the requirement for serial numbers imposed by the federal government.

page 18:

An ordinary speaker of English would recognize that a company in the business of selling kits that can be assembled into firearms in minutes -- and that are designed, marketed, and used for that express purpose -- is in the business of selling firearms. A contrary conclusion blinks reality.

No. A kit is not a completed product. When the pieces of a kit must be physically altered to allow the parts to be assembled into a functional firearm, it is not a disassembled firearm. It is a kit, where the purchaser finishes the manufacturing process. Individuals in the United States, who are not manufacturing firearms for commercial sale have always been able to make their own homemade firearms using parts purchased from other parties.

page 20:

The court appeared to accept that “disassembled” weapons are subject to the Act’s requirements, App., infra, 39a, but exempted parts kits that can be assembled into a fully functional weapon in a matter of minutes, see id. at 70a-71a, 81a-88a.

No, this is incorrect. If it takes time and effort to make parts compatible, it takes more time and effort than merely assembling parts. Functional firearms can be made from hardware supplies in "minutes". That does not make pipes into firearms. The pipes are not firearms until the work is done to make them functional.

An unusual part of the brief is the Biden administration attack on "universal relief", where a single district court judge can vacate a law for the entire nation. This tactic has been used, particularly by the Left, for decades. If the court uses this case to eliminate the ability of single district courts to vacate national laws for the entire nation, it will be a victory for limited government. The court could both uphold the ruling, which was upheld by the Fifth Circuit Court of Appeals, and still disapprove of a single district court vacating national law. From Page 29, the Biden Administration attacks "universal relief" :

Universal relief also creates other constitutional, legal, and practical problems. It “strains our separation of powers” by “allowing individual judges to act more like a legislature by decreeing the rights and duties of people nationwide.” Texas, 143 S. Ct. at 1985 (Gorsuch, J., concurring in the judgment). It circumvents the procedural rules governing joinder and class actions. See id. at 1981. It encourages forum shopping by empowering a single district judge to nullify the decisions of other courts upholding the challenged agency action.

The Biden administration makes a laughable claim about reality in 1968. Serial numbers were not required on most firearms (handguns and high-powered rifles were an exception) in 1968. Millions, perhaps tens of millions of firearms without serial numbers were grandfathered into the system in 1968. Homemade firearms, without serial numbers, have been made in the United States from colonial times. From Page 39:

More fundamentally, there was no such thing as a ghost gun in 1968. As recently as 2017, they were a novelty being sold in relatively small numbers. It is only over the last five years that the manufacturing respondents and others have dramatically changed the status quo by selling tens if not hundreds of thousands of firearms outside the Act’s regulations.

This is the progressive argument of that was then, this is now, therefore we must ignore the rules in place and act by diktat!

Predicting what the Supreme Court will do on any issue is difficult. The Court consists of nine people who can see through obvious, inflated rhetoric.  The Supreme Court has already spanked the Biden Administration for attempting to act with dictatorial authority on student loans. The Court has ruled the EPA cannot change law for the entire country by administrative whim.  Refusing to grant the emergency stay to the Biden administration only returns firearms regulation to the status quo before the Biden administration gambit to expand ATF authority was attempted.

The question of whether the entire firearms regulation scheme concocted with the National Firearms Act of 1934, the Federal Firearms Act of 1938, the Gun Control Act of 1968 and the 1986 Gun Owners Protection Act are all an overreach of federal power, not allowed under the Second Amendment, is not addressed.

Update: Justice Alito grants administrative stay for a week. Responses due on August 2, 2023.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX : Gunfight, Armed Victim Wounded at Taco Stand

SAN ANTONIO - A man who was just waiting to buy breakfast tacos was shot in an exchange of gunfire during an early morning robbery.

The shooting happened around 6:30 a.m. Wednesday in a parking lot near the Tacos De Mama food truck off Blanco Road near Dresden Drive.

Police said two customers were waiting for the truck to open when the armed suspects talked up and demanded their wallets. After they both handed over their wallets, one of the suspects opened fire on the suspects, hitting one in the stomach.

The victim pulled out his gun and returned fire. No word if either of the suspects were hit during the shootout.

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Illinois District Court: Are Suppressors/Silencers Protected by the Second Amendment?

In the United States District Court for the Southern District of Illinois, on November 25, 2022, Larry Morse and Theodore Ray Buck, Jr. filed a lawsuit against the state of Illinois, claiming the state ban on the sale and possession of silencers is a violation of the Second Amendment.  A similar lawsuit was filed by Carlin Anderson and David Clark on February 27, 2023, backed by the American Suppressor Association. The two lawsuits, Morse v Raoul and Anderson v Raoul have been consolidated as of June 15, 2023. The parties involved have agreed the principle area of contention is whether silencers are arms protected by the Second Amendment. Morse and other plaintiffs claim silencers are obviously bearable arms, and are in common use, so they cannot be banned from ownership as they are in Illinois. Here are excerpts from the pleading in Morse v. Raoul. From courlistener.com:

29. As of 20201, there were 2,042,719 suppressors owned by law abiding citizens as registered in the National Firearms Registration and Transfer Record (“NFRTR”), far more than was needed for the DC Circuit to find AR-15s in common use. And that is despite legal impediments to owning a silencer, including the National Firearms Act requirements—paying a $200 transfer tax, submitting a detailed application and fingerprints, and a multi months-long wait for the federal government to process the application. See26 U.S.C. § 5811. Even arms that are far less common have been found to be protected.

Plaintiffs point out that silencers are used for numerous lawful purposes. From the pleading:

33. And the primary purpose of suppressors are for lawful purposes, including hunting, which Heller v. District of Columbia, 399 U.S. App. D.C. 314, 331, 670 F.3d 1244, 1261 (2011) holds is part of the Second Amendment right, self-defense (the core right pursuant to District of Columbia v. Heller, 554 U.S. 570, 628, 128 S. Ct. 2783, 2817 (2008)) and target shooting which both the Seventh and Third Circuits have already found to be protected Second Amendment conduct. The right to self-defense “implies a corresponding right to acquire and maintain proficiency” with common weapons. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) [hereinafter Ezell I].

Silencers are in common use. They are used for numerous lawful purposes, including self defense. The major contention of the State of Illinois is silencers are not arms, they are merely an accessory. From the motion by the defendants:

Defendants Kwame Raoul, Brendan F. Kelly, Craig Miller, and Bryan Robbins respectfully move the Court to enter judgment in their favor pursuant to Federal Rule of Civil Procedure 12(c). Plaintiffs raise a Second Amendment challenge to an Illinois law prohibiting the possession of silencers, which are attached to firearms to reduce the noise of gunfire. But the Second Amendment protects only “the right of the people to keep and bear Arms” (emphasis added). Silencers are not weapons. They are not used for self-defense. And they are not necessary to the effective use of a firearm. So they are not “Arms” within the meaning of the constitutional text, and thus plaintiffs cannot prevail on their Second Amendment claim.

Two problems exist with the above claim. The first is silencers are explicitly treated as arms in both Illinois law and federal law. While silencers are not "arms" by themselves, they clearly add to the effectiveness of firearms and serve to aid in the use of firearms for lawful purposes such as self defense. The second is accessories, which make arms more effective, such as aiding in training, are protected under the Second Amendment. The State of Illinois claim could be used to ban magazines (currently under contention) or other firearms accessories such as telescopic sights, red dot sights, flash suppressors, or even such things as rifled barrels or recoil pads. 

The Supreme Court, in Caetano made clear all items which constitute bearable arms fall under the protection of the Second Amendment. Outright bans on bearable arms are not allowed if the arms are in common use for lawful purposes.

This is why the State of Illinois is contending silencers are not arms. If they are not arms, why are they regulated and banned, especially under Illinois and United States weapons statutes? Illinois code 720 ILCS 5/24-1(a)(6) bans the possession of any device or attachment designed, used or intended for use in silencing the report of a firearm. If they are not useful to make firearms more effective, why ban or restrict them? 

If the court rules silencers are arms under the protection of the Second Amendment, the Texas lawsuit against the NFA restrictions on making silencers gains credibility.

Analysis: 

What Illinois is attempting to do is a salami slice destruction of the Second Amendment. Under the theory that accessories, which make weapons more effective, can be banned, the Second Amendment could be reduced to the absurdity of allowing only a single, muzzleloading shotgun for defense in the home. Such an absurd outcome is not allowed under the Second Amendment. 

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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