United States 2nd Amendment Legal Cases and Law Discussion

California Mag Ban Ruled Unconstitutional
  • bullethead

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    Guess what guys - California can now enjoy freedom:
    The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of largecapacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.

    The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

    The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

    Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

    The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

    The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

    Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.
     
    PSA: Solvent Traps = Jail Time w/o an NFA Tax Stamp
  • bullethead

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    Paper: The Right to Armed Self-Defense in the Light of Law Enforcement Abdication
  • bullethead

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    Here's a great article on how the 2nd Amendment is relevant, despite the Democrats saying we need to rely on the police:
    Mainstream liberals, who had previously been strongly on the “rely exclusively on police and not on a personal firearm for protection” bandwagon, seem unwilling or unable to defend the importance, competence, and efficacy of the police in the face of allegations of institutional racism against American law enforcement. In short, the argument that Americans should trust the police to protect them, already greeted with skepticism if not derision in gun-rights circles, has been undermined further by the anti-police movement.

    In short, conservative and libertarian guns rights proponents have long asserted that the existence of professional police forces is an inadequate substitute for a right to armed self-defense, and progressive advocates of gun control and even confiscation have, to a significant extent, now joined the anti-police bandwagon. Given that reality, there does not seem to be much of a constituency left for the argument that the right to armed self-defense has been rendered anachronistic by the development of professional law enforcement.

    Perhaps even more significant, the events of Summer 2020 demonstrate that putting aside how one feels about the police from a theoretical or philosophical approach, law enforcement in fact often cannot be relied up to “do their jobs” in the face of significant disorder. As this article has shown, in cities around the country police forces failed to preserve law and order. In some cases they were ordered to stand down by elected officials who sympathized with the law breakers; in some cases because in an environment dominated by anti-police agitators, police supervisors thought it unwise to ratchet up police presence and activity; and in some cases, grassroots police officers, frustrated with the hostility shown by the public, quit, either permanently, or, as with the “Blue flu,” temporarily refused to do their jobs.
     
    California "assault weapon" ban declared unconstitutional
  • bullethead

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    Saint Benitez declares California's assault weapon restrictions unconstitutional:
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    Let's see whether this goes to SCOTUS, because it could be some real fun shit.
     
    Federal Government held responsible for botching NICS update
  • bullethead

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    Here's some big news:

    twitter.com/steve_vladeck/status/1412766506635730951
    Big ruling from Judge Rodriguez (W.D. Tex.):

    After a bench trial, he's ruled that the federal government is 60% responsible under the Federal Tort Claims Act for the 2017 Sutherland Springs shooting, and will hold a separate trial to determine damages:
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    Texas sues to get ATF to stop regulating Texas made suppressors
  • bullethead

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    Article:
    BREAKING: Paxton v. Richardson (N.D. TX): @TXAG files lawsuit to stop the federal government from regulating suppressors made in Texas for personal use in Texas.

    Article:
    4. Moreover, federal regulation of firearm suppressors made in Texas for personal use in Texas cannot be justified as regulations of interstate commerce, or as laws necessary and proper for the carrying into execution such regulations of interstate commerce.

    5. David Schnitz, Tracy Martin, and Floice Allen are Texas citizens, have informed the Attorney General of Texas that they intend to make a firearm suppressor for personal use in Texas that will remain in Texas. Moreover, Schnitz, Martin, and Allen intend to make the firearm suppressor out of basic materials that are not firearm suppressors and that would not be subject to federal regulation if they possessed them for other reasons. Therefore, Texas law states that the firearm suppressor they intend to make will not be subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce. See TEX. G OV ’T CODE §§ 2.052(a).

    6. Upon such notification, Texas law requires the Attorney General of Texas, Ken Paxton, to file suit against the federal government. TEX. G OV’T CODE § 2.054.

    7. Consequently, Plaintiffs seek an injunction against enforcing federal firearms statutes and regulations as applied to persons who make firearm suppressors in Texas for personal use that will remain in Texas.

    8. Plaintiffs also seek declaration that firearms suppressors made in Texas for personal use in Texas may not be regulated under the Interstate Commerce Clause or the Necessary and Proper Clause.


    This is incredibly based, and I hope they win, but man, this is going to be a huge ass legal battle that'll probably get to the Supreme Court.
     
    Firearms Policy Coalition lawsuit against California law that doxxes gun owners
  • bullethead

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    So, uh, big lawsuit against California for attempted doxxing of gun owners:
    Article:
    Summary: Challenge to California Assembly Bill 173, which requires the state’s Department of Justice to share the personal identifying information of millions of gun and ammunition owners with other parties for non-law-enforcement purposes.

    Article:
    Dr. Amy Barnhorst, one of the Center’s lead investigators who runs its “Bullet Points” project, doesn’t hide her anti-gun-rights views. UC Davis Health, Violence Prevention Research Program, UCFC Lead Investigators, UCFC Lead Investigators | UC Davis Violence Prevention Research Program. She recently unleashed a Twitter tirade on gun owners and gun rights following the Kyle Rittenhouse trial: Barnhorst said the “verdict is a small tree, but the dark forest here is this country’s permissive firearm laws, pervasive myths that guns keep people safer, and vigilante / militia culture that encourages ordinary citizens to take up arms to ‘protect’ themselves and others.” https://bit.ly/3v3Emkq.

    This context is important in a case where gun owners’ PII must now be handed over to these anti-gun activists, and may be handed over to countless other opponents of gun rights. In fact, AB 173 was spurred by a dispute between the Center and DOJ over DOJ’s refusal to share the very same PII at issue in this case based on DOJ’s concerns that sharing this data violated gun owners’ privacy rights. See, e.g., Wiley, Gun violence researchers fight California Department of Justice’s plan to withhold data, Sacramento Bee (March 15, 2021); Beckett, TheGuardian.com, California attorney general cuts off researchers’ access to gun violence data (March 11, 2021).

    In the past, DOJ had provided the Center with confidential gun owner PII in violation of California law: Multiple research papers affirm that the Center obtained and used gun owner PII in violation of Section 11106. See, e.g., Zhang et al., Assembly of the LongSHOT cohort: public linkage on a grand scale, 26 Injury Prevention 153 (2020) (cross referencing DROS database, voter registration data, and mortality data to link individual-level data of millions of Californians based on their PII); Pear et al., Criminal charge history, handgun purchasing, and demographic characteristics of legal handgun purchasers in California, 8 Injury Epidemiology 7 (2021) (cross referencing AFS and DROS databases with criminal charge and conviction history based on PII and evaluating individual demographic characteristics including age, race, and sex).

    In 2020 and 2021, however, DOJ advised the Center that it was going to start complying with the law and no longer provide gun owners’ PII for the Center’s research. Wiley, supra (DOJ spokesman stating “[w]e . . . take seriously our duty to protect Californians’ sensitive personally identifying information, and must follow the letter of the law regarding disclosures of the personal information in the data we collect and maintain”); Beckett, supra (“it’s precisely this more detailed personal information, including about gun purchasers . . . that Becerra’s justice department is telling some researchers that it will not provide”; DOJ “has cited privacy concerns as a justification for the data restrictions, and has said it believes current California law does not permit the agency to release certain kinds of data to researchers”). DOJ reportedly instructed the Center to delete the PII it possessed from these prior disclosures. Wiley, supra.

    Wintemute lashed out against DOJ’s change in position, and he dismissed DOJ’s view that disclosing gun owners’ PII raised serious privacy issues: “People have started to wonder what other reasons there might be for which privacy is a fig leaf.” Beckett, supra. Wintemute even took the remarkable position that gun owners’ PII is “public information” since it was held by DOJ. Orr, AG Becerra Takes Heat for DOJ’s Move to Restrict Release of Gun Violence Data, KQED (March 12, 2021). He rallied the Legislature to change the law.5


    I added the underline in the last paragraph as emphasis for how fucking insane that is.
     
    Summary excerpts from DOJ Commerce in Firearms report
  • bullethead

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    Here's a report from ATF on firearms production/importation:
    Article:
    Between 2000 and 2020, approximately 24% of licensed firearm manufacturers failed to submit the required AFMER report. Between 2016 and 2020, this average increased to 30%. However, the FFLs responsible for most firearms manufactured annually, as indicated by the parent entities throughout the report, have consistently submitted the required AFMER. The percentage of non-AFMER filers does not equate to the volume of firearms entering commerce.

    Between 2000 and 2020, the number of domestically manufactured firearms produced on an annual basis per 100,000 persons in the U.S. increased 187%. During that same time, the U.S. population only increased 18%. At no point since 2011 has there been a year where less than 6,731 ,958 firearms were manufactured for domestic consumption.

    Between 2016 and 2020, Smith and Wesson, Sturm Ruger, and Sig Sauer parent entities collectively manufactured and entered commerce 42% (20,045,276) of all domestically manufactured GCA firearms (47,716,521) between 2016 and 2020.

    Between 2000 and 2009, the dominant firearm type manufactured in the U.S. was rifles. This changed in 2010 when pistols became the dominant firearm type manufactured in the U.S. Pistol dominance continued from 2010 to 2014, until it was slightly overtaken by rifles in 2015, and then reemerged as the dominant firearm from 2016 through 2020. Among pistol calibers manufactured in 2020, the 9mm PARA caliber pistol constituted 58% (3,211,768) of the total 5,509,151 pistols manufactured and distributed into domestic commerce.

    Between 2000 and 2020, annual SBR manufacturing volume increased 24,080% with the bulk of this growth taking place since 2011.

    Between 2000 and 2020, annual silencer manufacturing volume increased 3,699% with the bulk of this growth taking place after 20l0.

    Between 2000 and 2020, annual miscellaneous firearms manufacturing increased 4,281 % with the bulk of this growth taking place in the last 10 years. Miscellaneous firearms are predominantly firearm frames and receivers that are manufactured and sold before being assembled into a complete firearm. This growth reflects the growing trend in private individuals making their own customized firearms from serialized parts.


    Article:
    As technology advances in the making of PMFs [Privately Made Firearms], there has been a corresponding increase in their use in crimes. Between 2016 and 2020, 25,896 suspected PMFs were recovered in crimes and traced by law enforcement. In 2021 alone,19,344 suspected PMFs were recovered and traced by law enforcement. To put these figures in perspective, on average, from 2016 to 2020, approximately 5,150 suspected PMFs were traced annually, whereas, in 2021 this number nearly quadrupled.

    ATF has taken numerous steps to address the rise in the criminal use of PMFs. This includes standardizing terminology used by law enforcement, as well as outreach and targeted education to local law enforcement on the identification and tracing of PMFs. Most recently, ATF's issuance of Final Rule 2021R-05F published on April 26, 2022, will result in licensing and serialization of firearm parts kits that are produced and sold commercially, and requires identifying marks be placed on all PMFs when they are taken into inventory by FFLs, including overnight repairs by licensed dealers/gunsmiths, and that FFLs record those PMFs in their A&D records.

    These additional requirements will assist law enforcement to more effectively trace PMFs that are recovered in criminal investigations. Continued advancements in technology and information access will likely result in continued growth and evolution of PMF making. As this growth of PMFs occurs, the PMF market will continue to impact licensed manufacturers and their share of the firearms market.


    Article:
    The total number of import permits issued by ATF generally declined between 2000 and 2020. However, the total number of annual firearms imported into the U.S., increased by almost 360% during this 20-year period. This dramatic increase was driven by the total number of handguns imported into the U.S., which grew by 440% between 2000 and 2020 and represented 63% of all firearms imported in 2020. Ammunition imports considerably increased during this time, growing by 175,365% between 2000 and 2020.


    Article:
    Estimated Minimum Sales Volume
    EMSV is calculated by multiplying the number ofNICS checks conducted in the relevant period by the number of distinct NICS purpose codes associated with a NICS transaction that involved the actual transfer of a firearm to a new possessor. These NICS purpose codes are: 01 - Sale of a Handgun, 02 - Sale of a Long Gun, 03 - Sale of an Other Weapon, 27 - Private Sale ofa Handgun, 28 - Private Sale ofa Long Gun, and 29 - Private Sale of an Other Weapon. NICS transactions involving more than one of these purpose codes reflect at a minimum the transfer of two firearms and may involve more. For example, a NICS transaction with purpose codes 01, 02, 28, and 29 associated to it would equate to an estimated minimum of four firearms being sold. The NICS data used to calculate EMSV does not include any personally identifiable information about the purchaser or possessor of a firearm; it is limited to aggregate numerical and code data.

    As the term itself indicates, EMSV does not capture all firearm sales, but instead provides an estimate of the lowest number of firearms involved in a NICS transaction in which a transfer occurs.


    Article:
    Over this period, by far the largest increase of EMSV across all FFL types occurred between 2019 and 2020. Overall, total EMSV for all FFLs increased by approximately 65% between 2019 and 2020 with EMSV increasing by 64% for Type 01 FFLs and by 94% for Type 07 FFLs. In 2020, approximately 99% of all EMSV sales were transacted by Type 01 (74%), Type 02 (15%) and Type 07 (11 %) FFLs.

    EMSV also showed a fairly consistent increase between 2019 and 2020 for most states and territories. However, over the 2017 to 2020 period, EMSV transactions show variation in the degree to which EMSV is concentrated by state across different types of FFLs with Types 02 and 07 EMSV showing more concentration in the top ten states than Type 01 FFLs.

    Analysis of EMSV data reveals that many FFLs do not engage in firearm sales that involve conducting NICS checks, and thus had no EMSV, or engage in low levels of EMSV. During the period 2017 to 2020, 27% of Type 01, 17% of Type 02, and 38% of Type 07 FFLs had no EMSV. In the same period, 58% of Type 01, 45% of Type 02, and 55% of Type 07 FFLs were determined to have low EMSV levels (1 to 500 EMSV). In total, from 2017 to 2020, 85% of Type 01 FFLs, 62% of Type 02 FFLs, and 92% of Type 07 FFLs had an EMSV less than 500.


    Article:
    The annual number ofNF A applications received has grown considerably over the last twenty years with a 1,231% increase in annual applications received between 2000 (41,412) and 2020 (551,074). Between 2016 and 2020, ATF received 2,073,275 eligible applications involving the registration or transfer of 10,074,950 NFA weapons. The most registered or transferred NFA weapons were silencers, machineguns, and destructive devices.

    Between 2016 and 2020, FFLs paid more than $30 million in SOT.

    To facilitate the submission ofNF A applications, ATF established an internet portal to accept eForm submissions in 2013. By 2020, eForms had accounted for almost half of the total number ofNF A applications received by ATF. The average ATF processing time for paper NFA applications in 2020 was almost 154 days as compared to eForms which was about 8 days. The substantial decrease in eForm processing times reflects ATF's commitment to leveraging technology to facilitate lawful firearms commerce more efficiently.
     
    Pittsburg anti-2A laws struck down
  • Bear Ribs

    Well-known member

    Pittsburgh's Red Flag Law, Mag Ban, and AWB Ban have all been struck down.
     
    Lawsuit to throw out the NFA post-Bruen
  • bullethead

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    Some Florida lawyers are now trying to get the NFA thrown out as unconstitutional:
    Article:
    To summarize: any law, regulation, or government policy affecting the “right of the people to keep and bear arms,” U.S. CONST., Amend. II, can only be constitutional if the Government demonstrates analogous restrictions deeply rooted in American history evinced by historical materials contemporaneous with the adoption of the Bill of Rights in 1791. Bruen, 597 U.S. at *29.

    ...

    Defendant is charged under 18 U.S.C. 5861 and 5871, as well as conspiracy to commit those offenses. The charged statutes deal with the taxation and transfer of machineguns, and other weapons. The Government alleges the tchotchkes at issue—the “auto key cards”—to be machineguns. What’s more, actions subsequent to the passage of the charged firearm statutes render it impossible to comply with the taxing provisions, thus leaving the statutes a bizarre, vestigial area of law passed pursuant to the taxing power which—in dubious constitutionality—is used by the Government as an independent effective prohibition on the sale, transfer, or possession of any controlled devices not registered by 1986.

    The Government may attempt to argue that machineguns are beyond the scope of the Second Amendment by attempting to characterize them as “dangerous and unusual,” as it has in other cases, but this is not the test. The court’s invocation of “dangerous and unusual” weapons in Heller and subsequently Bruen was for the purpose of discussion of what might be a constitutionally acceptable law, rather than the endorsement of any particular extant policy. Bruen, 597 U.S. at *12 (Clarifying that the Court was not undertaking “an exhaustive historical analysis…of the full scope of the Second Amendment”) (quoting Heller, 554 U.S. at 627). Rather, the only way a court may conclude Defendant’s conduct falls outside the scope of the Second Amendment’s unqualified command remains clear: the Government must prove the particular regime in question is consistent with the history and tradition of the United States. Id at *15. Furthermore, the question of whether a weapon is “in common use at the time,” necessarily pins the analysis to the time before the prohibition. To consider otherwise would incentivize the Government to legislate wantonly and aggressively, seizing arms, then later evade constitutional scrutiny by suggesting that the arms cannot be in common use, because the Government prohibited them. Such circular logic would be inconsistent with any fundamental rights jurisprudence. Thus, the Government has the burden to prove that the regime in question is consistent Case 3:21-cr-00022-MMH-MCR Document 101 Filed 07/01/22 Page 4 of 9 PageID 581 5 with the history and tradition of firearms regulation in this country around the founding era.
     
    NFA Lawsuit Explained
  • bullethead

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    The lawyers suing over the NFA explain themselves:



    TL;DR:
    -First Amendment violations in terms of criminalizing expression (the autokey card and talking about it)
    -No 2A organizations involved in funding the case
    -They're sticking to that old lawyer "zealously advocate for your client" thinking
    -They're friends of the client
    -They're trying to force the government to uphold its burden to defend the NFA
    -The autokey card is not a machinegun, but even if it was, the NFA is unconstitutional in general and as applied to the charges against the creator
    -The challenges:
    1. Facial challenge: statue is unconstitutional as written.
    2. As-applied challenge: law is unconstitutional in this particular instance. (Fall back position.)
    3. History and Tradition test against the NFA.
     
    California/Giffords vs Federal Government on 80% Receivers
  • bullethead

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    LOLOLOLOLOLOLOLOL:

    Article:
    California v. ATF (N.D. CA): Federal government argues that CA/Giffords lawsuit trying to redefine "80% percent" receivers as firearms is moot due to the new ATF rule. Plaintiffs say it's not because "the ghost gun industry is defying" federal law.


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    Article:
    "Plaintiffs’ claims remain live because... 'unfinished' or '80 percent' frames and receivers—continue to be sold without serial numbers, without background checks, and without record-keeping—all critical requirements under federal law that the ghost gun industry is defying."


    Article:
    "And in proceedings before a federal court in another district, Defendants took the position that other 80% receivers are entirely unaffected by the issuance of the Final Rule."

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    NFA Case involving auto-sears
  • bullethead

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    We got an interesting NFA case!
    Article:
    CHICAGO (CN) — A federal appeals court on Thursday heard arguments in the case of a man who owns banned automatic weapons parts and claims the court should either rule he is allowed to own them because he bought them before they were regulated or that he should be given a grace period to register them and make his ownership legit.

    The firearm components in question are known as drop-in auto sears, or just auto sears, which according to court documents were invented in the mid-1970s. Part of a gun’s trigger mechanism, they essentially convert a semiautomatic rifle into a fully automatic machine gun by allowing it to fire more than one bullet with a single pull of the trigger.

    The federal government began requiring machine guns to be registered and taxed starting with the National Firearms Act in 1934. In 1968, the Gun Control Act expanded the NFA’s reach, at which point auto sears technically fell under the definition of a machine gun.

    In 1981, the Bureau of Alcohol, Tobacco and Firearms specifically classified auto sears as machine guns and codified their regulation as such for registration and taxation purposes, but the ruling did not apply to those manufactured before November of 1981.

    Then, in 1986, Congress passed the Firearm Owners Protection Act, which added to federal gun laws that it is illegal to transfer or possess a machine gun with two exceptions, one being that the prohibition does not apply to machine guns legally owned before the law took effect in May of that year.

    An Illinois man, known in court documents only as John Roe, bought an unregistered auto sear in 1979. He made no attempt to register the part until 2021, when he sued then-acting ATF Director Marvin Richardson and U.S. Attorney General Merrick Garland on the basis that his auto sear should be grandfathered as legally owned because he bought it before 1981, or that he should be given an amnesty period under ATF rules to legally register it.
     
    Federal Judge strikes down portions of NY's CCW permiting scheme
  • bullethead

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    New York and Gun Control Advocates blown the fuck out:
    Article:
    Last June in New York State Rifle and Pistol Association v. Bruen, the Supreme Court ruled that it was unconstitutional to require that people who want to carry handguns in public for self-defense demonstrate that they have "proper cause" to do so. New York legislators and Gov. Kathy Hochul responded by eliminating that requirement while simultaneously imposing a raft of new restrictions, including criteria for proving a carry-permit applicant's "good moral character" and bans on firearm possession in a long list of "sensitive locations." Yesterday a federal judge issued a temporary restraining order (TRO) against enforcing many of those rules, saying they probably violate the Second Amendment.

    U.S. District Judge Glenn T. Suddaby's decision in Antonyuk v. Hochul casts doubt on the constitutionality of the vague standards that New York and several other states retained even after Bruen. It also suggests that sweeping, location-specific gun bans like New York's, which make leaving home with a gun legally perilous even for permit holders, are inconsistent with the constitutional right to bear arms.

    Suddaby notes that New York's law "expressly prohibits the issuance of a license [to carry a handgun] unless the licensing officer finds (meaning unless the applicant persuades him or her through providing much information, including 'such other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application') that the applicant is of 'good moral character,' which involves undefined assessments of 'temperament,' 'judgment' and '[]trust[].'" He adds that "shouldering an applicant with the burden of showing that he or she is of such 'good moral character' (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of showing that he or she has a special need for self-protection distinguishable from that of the general community."

    That is exactly the sort of requirement that the Supreme Court rejected in Bruen, which said New York's "may issue" permit policy, in contrast with "shall issue" laws that allow people to carry guns if they meet a short list of objective criteria, gave local officials too much discretion. "In essence," Suddaby says, "New York State has replaced its requirement that an applicant show a special need for self-protection with its requirement that the applicant rebut the presumption that he or she is a danger to himself or herself, while retaining (and even expanding) the open-ended discretion afforded to its licensing officers. Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction."

    Suddaby's TRO also applies to New York's requirement that applicants supply information about their social media accounts so that licensing officials can decide whether they have said anything suggesting they lack "good moral character." As the gun owners who challenged the new regulations saw it, that demand violated the right to freedom of speech as well as the right to bear arms, making the latter contingent on how applicants have exercised the former.

    Suddaby also blocked enforcement of New York's requirement that carry-permit applicants meet in person with licensing officials for an interview, saying "the
    Court finds that no such circumstances exist under which this provision would be valid." He likewise said the state had failed to justify its demand for the "names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home." Suddaby deemed that requirement "far more invasive and onerous" than the requirement that an applicant supply four character references, which he let stand.

    In analyzing whether these provisions were likely to pass constitutional muster, Suddaby applied the test that the Supreme Court prescribed in Bruen: whether a rule is "consistent with this Nation's historical tradition of firearm regulation." Meeting that test requires citing historical analogs that resemble the challenged restriction, which New York had trouble doing for several of its rules.

    The state's justification for the character-reference requirement, for example, relied on three historical analogs, including a Delaware law that said "any free negro or free mulatto" who wanted permission to carry a gun had to submit the "written certificate of five or more respectable and judicious citizens of the neighborhood" attesting to his "fair character." In a footnote, Suddaby notes that he took that precedent into account despite its "racist and abhorrent" nature. New York also cited two municipal ordinances regulating public possession of guns, one requiring a police recommendation and one requiring references from "at least three reputable freeholders."

    That thin record was enough for Suddaby to let New York demand that a carry-permit applicant submit four character references. But he said the state had not shown that its expansive definition of "sensitive locations" was consistent with the historical understanding of the right to bear arms.

    "The Court respectfully reminds Defendants that, because the Second Amendment's plain text covers the conduct in question (carrying a handgun in public for self-defense), 'the Constitution presumptively protects that conduct,'" Suddaby writes. "Defendants must then rebut the presumption by 'demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation.'"

    In the landmark Second Amendment case District of Columbia v. Heller (2008), the Supreme Court described "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as "longstanding prohibitions." But in Bruen, it noted that "the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited." They included "legislative assemblies, polling places, and courthouses."

    New York's location-specific gun bans, by contrast, include 20 broad categories that encompass myriad places where people might want to carry firearms for self-defense. Suddaby rejected many of these restrictions, including the prohibition of firearms in public transportation, in entertainment venues, in places where alcohol is served, and in "the area commonly known as Times Square." He said the ban on guns in places of worship was overly broad because it did not include an exception for "persons who have been tasked with the duty to keep the peace" in such locations.

    More generally, Suddaby rejected New York's default rule that guns are prohibited in all businesses open to the public unless the owner expressly allows them and posts signs to that effect. Contrary to the state's claim that it is defending the prerogatives of business owners, he says, New York is "making a decision for private property owners that they are perfectly able to make for themselves…as well as arguably compelling speech on a sensitive issue." In any case, he adds, "this policy dispute is irrelevant, because it does not regard the Supreme Court's 'historical tradition' standard."

    That standard may prove to be an insurmountable challenge for states that pretend to comply with Bruen while imposing licensing requirements just as nebulous as the "proper cause" test that Court rejected or making it practically difficult for permit holders to carry guns for self-defense. Judging from Suddaby's decision, courts may not be as easy to fool as anti-gun politicians hope.
     
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