Updates On 2A Cases Before The Supreme Court

Today was the last day of the October Term of the Supreme Court. Justice Breyer retired effective 12 noon today and we now have Justice Ketanji Brown Jackson as the most junior Associate Justice. Replacing one liberal with another liberal will not change the Court. Unless I am mistaken, about the only thing that may change is that in cases where Justice Sotomayor was the sole dissenter she probably will now have a co-dissenter. I almost said co-conspirator. Oops.

The impact of NYSRYPA v. Bruen was felt today on a number of cases. Four cases were granted certiorari, the judgement of lower courts vacated, and were remanded to lower courts for reconsideration in light of the Bruen decision. (It is kind of weird that we now refer to this case by the loser’s name and not that of the winner.)

Two of the cases involved restrictions on magazine size. This included Association of New Jersey Rifle and Pistol Clubs et al v. Brunk et al which was remanded to the 3rd Circuit for reconsideration. This was both a Second Amendment and a Takings case. The other case is Duncan et al v. Bonta et al which was remanded to the 9th Circuit Court of Appeals. This case was originally a win in the 9th Circuit until it was reversed En Banc.

As would be expected, Young v. Hawaii, a carry case, is being remanded to the 9th Circuit for reconsideration. This case directly challenged the 9th Circuit’s ruling that there was no right to carry a firearm outside the home.

The fourth case is remanded to the 4th Circuit Court of Appeals and involved the State of Maryland’s ban on modern sporting rifles. Bianchi et al v. Frosh sought to determine whether they could be said to be “arms in common use” which I would argue that they are. This case was brought by the Firearms Policy Coalition among other. Congratulations to Adam Kraut who was one of the attorneys on this case.

In addition to these cases, both challenges to the bump-stock ban are still surviving. Neither have been granted certiorari nor have they been denied it. These cases are Aposhian v. Garland out of the 10th Circuit and Gun Owners of America et al v. Garland et al in the 6th Circuit. In another bump-stock case, the 5th Circuit issued an order vacating Cargill v. Garland et al and ordering an En Banc rehearing. They did this on June 23rd after the Bruen decision.

Finally, the Court ruled against the EPA in West Virginia et al v. EPA et al. This case involved the power of an agency to make rules. The Court said an agency must point out to where Congress gave them clear authorization to make rules. This is considered a “major questions” case which means courts should not defer to agency interpretation where there is “vast economic or political significance.” Applied to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, this could impact the forthcoming rule redefining a receiver and other things. I have only read the syllabus of this case so will have to dig deeper.

Don’t Be A Faubus

My good friends at Doctors for Responsible Gun Ownership have a great tweet up. It was posted a couple of days ago and is aimed at those blue state Democrat governors who want to implement the Bruen precedent “with all deliberate speed.”

So Gavin, Phil, Kathy, David, and the rest, don’t be a Faubus! That goes for you, too, Larry and Charlie even if you are RINOs and not Democrats.

Big Law And The Second Amendment (Updated)

Big Law, those mega-law firms which have hundreds of associates slaving away to make partners even richer, doesn’t like guns. They freely donate their time and efforts to groups like Brady United, Giffords Law Center, and their joint Firearms Accountability Task Force. However, don’t ask them to defend guns.

The most recent case is point is mega-firm Kirkland and Ellis LLP. They are the largest law firm in the United States based upon revenues according to Law.com. Yesterday afternoon, fresh on the heels of their major win in NYSRPA v. Bruen, Kirkland and Ellis partners Paul Clement and Erin Murphy announced they were having to leave the firm due to a change in policy.

From Politico:

“We were given a stark choice: either withdraw from ongoing representations or withdraw from the firm,” Clement said in a statement. “Anyone who knows us and our views regarding professional responsibility and client loyalty knows there was only one course open to us: We could not abandon ongoing representations just because a client’s position is unpopular in some circles.”

Through a firm spokesperson, Kirkland confirmed its decision but did not explain its rationale for dropping gun cases. A key attorney at Kirkland, Jon Ballis, said he hoped the firm could continue to work with Clement and Murphy on matters not related to guns.

“We wish them the best of luck in the future and we look forward to collaborating with them in the future in matters not involving the Second Amendment,” Ballis said in a statement.

While the firm biographies of both Clement and Murphy appeared on the Kirkland website earlier this morning, they are now gone. Both Clement and Murphy had served Supreme Court clerkships. Clement was a clerk to the late Justice Antonin Scalia while Murphy served as a clerk to Chief Justice John Roberts. In addition, Clement was the 43rd Solicitor General of the United States.

As the Wall Street Journal put it in an editorial today, “You Won Your Gun Case. You’re Fired.”

They go on to say:

But these days gun-rights advocates are unpopular in the tony precincts of Los Angeles and New York where Kirkland represents business clients. When it comes to core constitutional rights versus corporate retainers that finance summer homes in the Hamptons, the Constitution is a second-class citizen…

Kirkland’s invertebrate abdication illustrates how progressive ideology dominates the commanding heights of American law, business and culture. If you want to know why a groundswell of opposition against this woke conformity is building in the provinces, this is it.

Clement and Murphy have their own op-ed in today’s Wall Street Journal entitled, “The Law Firm That Got Tired of Winning”.

They point out the proper role of a good attorney:

A lawyer can withdraw from a representation for good reason, like a newly discovered conflict of interest. But defending unpopular clients is what we do. The rare individuals and companies lucky enough to be universally popular (for the time being) have less need for lawyers. And the least popular clients are most in need of representation, from the British soldiers after the Boston Massacre to the defendant in the Boston Marathon bombing.

Our adversarial system of justice depends on the representation of controversial clients, no matter which side has most of big law rooting for it. This is particularly true in constitutional cases. Many of our fundamental constitutional guarantees are designed to be countermajoritarian, and many have been vindicated by litigants who are deeply unpopular, but still have a right to march through Skokie, Ill., to confront witnesses against them—or to defend themselves from violence.

I am glad there are ethical attorneys like Paul Clement and Erin Murphy. I am even more glad they were on our side and will continue to be on our side.

UPDATE: Dave Hardy at Arms and The Law blog pointed out something about Kirkland and Ellis that I did not know. The firm thought defending Jeffrey Epstein was just fine but the 2A was icky. Hmm.

In addition, Kirkland lawyers sued the widow of Andrew Breitbart as a continuation of their suit against him back in 2013. What a classy bunch.

ATF Celebrates Anniversary Of NFA

Whoever is the social media specialist at the Bureau of Alcohol, Tobacco, Firearms, and Explosives is clueless. Their Facebook page is evidence of that.

Often their posts seem more like an effort to tee up negative comments than anything else. They go on about straw purchasing which tees up questions about Project Gunwalker aka Operation Fast and Furious. They talk about arson which tees up responses dealing with the raid on the Branch Davidian compound. Indeed, on February 28th, the anniversary of the ATF raid on the Branch Davidian compound in Waco, Texas, they memorialize the agents killed in the raid. You can imagine the comments that engendered!

Today’s post was celebrating the enactment of the National Firearms Act on June 26, 1934. I am posting a screen shot of it below.

Umm. The NFA Handbook says on the length of rifle barrels, “A rifle subject to the NFA has a barrel or barrels of less than 16 inches in length.”

I think ATF’s Facebook page needs to have a disclaimer on it. Something like, “This page is for entertainment purposes only. Do not rely on it for regulatory or legal issues because we will get it wrong.”

I admit the primary reason I even pay attention to the page is to read the comments by well-known libertarian Spike Cohen. His comment today is representative of them.

88 years of doing nothing but violating people’s rights, criminalizing and murdering peaceful people, and government agencies trafficking guns to cartels and terrorists.

And all because, instead of just admitting that alcohol prohibition had led to massive gang violence, government decided to blame the guns. The same guns that had been available for sale at stores and in magazines by mail for anyone, with no regulation whatsoever, and with no previous massive violence.

Turns out government has a long, proud history of making everything it touches worse.

Happy Birthday. May it be your agency’s last one.

I don’t know how many of our tax dollars go to support the person or persons responsible for handling social media for ATF but I know that it is money wasted.

Every Picture Tells A Story, Post-Bruen

Rob Vance and I have been doing the Every Picture Tells A Story series for over ten years. It started when the 7th Circuit Court of Appeals forced the State of Illinois to adopt concealed carry. Fortunately, it ended up as shall-issue carry. It wasn’t perfect and still isn’t. However, it was better than the regimes in May-Issue states like New York, California, etc.

Now, with the Supreme Court’s ruling in NYSRPA v. Bruen which tossed the “good cause” requirement, the remaining May-Issue states will have to adapt their laws to comply. The attorney generals of both California and New Jersey have already issued directives saying that the “good cause” requirement is null and void. While I expect these states to react to this like the Southern states did to Brown v. Board of Education – that is “with all deliberate speed” – shall-issue and permitless carry will be the order of the day.

This is what the the US will look like at the beginning of 2023. The updated graphic by Rob is below. You will note that No-Issue and May-Issue has gone to zero.

I fully expect the current May-Issue states to adopt onerous and expensive training requirements, extended mental health checks that may include an evaluation by a psychologist or psychiatrist, liability insurance, marksmanship qualification standards, and the list goes on. This will be in addition to the cost of purchase permits for handguns which are quite expensive if you live in New York City. All of these requirements will lead to more litigation and more delays. If the lower courts abide by Justice Thomas’ opinion which throws out intermediate scrutiny, then these will be resolved in our favor. Indeed, if the more liberal judges applied the same standards that they used pre-Dobbs for abortion to carry, we’d have nationwide permitless carry.

Is The SFSD Looking For A Lawsuit?

The San Francisco Sheriff’s Department posted this on Twitter yesterday in response to the Supreme Court’s 6-3 ruling in Bruen.

Are they just asking to get sued? Not only are the requirements onerous but they freely admit that not one permit has been issued since 2020 in a county of over 800,000 people. I can just see the California Gun Rights Foundation, FPC, and the Second Amendment Foundation itching to file a joint lawsuit as soon as possible.


It is highly unusual for the US Department of Justice to release a statement saying that they disagree with a US Supreme Court decision. Yet, that is exactly what Biden’s DOJ did yesterday after the Supreme Court issued its opinion in NYSRPA v. Bruen.

Bear in mind Justice Kavanaugh’s concurrence where he pointed out that 43 states already have shall issue concealed carry and would only impact the outliers. Moreover, 11 out of the top 15 US cities by population are in states with either shall-issue carry or permitless carry.

If the DOJ was intent on defending federal firearms laws as they state, then why has Hunter Biden not been charged for lying on the ATF Form 4473? Is this a case of laws for thee but not for me?

Do they mean to weaponize the FBI and especially the BATFE against gun owners, dealers, and manufacturers? Will they be working with less free states to slow walk this decision?

It is interesting that this statement is attributed to the DOJ while a similar statement on the overturning of Roe v. Wade is directly from Attorney General Merrick Garland.

H/T Cernovich

Protest Against Tillis In Raleigh Starts At 10am Friday

This is just a reminder. Grass Roots North Carolina will be holding a protest outside the office of Sen. Thom Tillis (D-NC) tomorrow. It starts at 10am and will feature the hero of the Sutherland Springs Stephen Willeford.

If you can be there, be there. Information below is from GRNC

Gun Group to Picket Tillis Office 

Grass Roots NC will demonstrate against 

Tillis role in federal gun control

[Raleigh] On Friday, June 24 from 10:00 AM to 1:00 PM, Grass Roots North Carolina (GRNC) will be picketing Sen. “Traitor Thom” Tillis at his district office at 310 New Bern Ave., Raleigh, NC, 27601. The focus will be Tillis’ participation in federal gun control. Additional details are available at GRNC.org

“Traitor Thom” is also a coward

To avoid the “redress of grievances” with his constituents guaranteed by the First Amendment, a Tillis staff member says they will close the office on Friday, demonstrating clearly that Tillis doesn’t want to hear from his constituents. Accordingly, Tillis is not only a traitor to the gun voters who gave him his narrow victory in the 2020 elections, but also a coward afraid to face his constituents.

Sutherland Springs hero

GRNC is bringing in Stephen Willeford, the hero who stopped the mass killing at First Baptist Church in Southerland Springs, TX by shooting and wounding the perpetrator with an AR-15 and then chasing the perpetrator’s motor vehicle to prevent him from committing further killings. Willeford will address the demonstration because his experience illustrates that only armed deterrence and intervention will stop mass killers.

Capitulation, not compromise

Democrats exploit mass killings to further their pre-ordained agenda to disarm the American public. The “solutions” they impose have no impact on mass murder.

What Republicans claim is a “compromise” negotiated by Tillis, John Cornyn (R-TX) and eight other Republicans is not a “compromise” at all because Second Amendment supporters gain nothing. In truth, it is capitulation, virtually guaranteeing that Democrats will soon demand more gun control.

GRNC position on gun control measures

GRNC opposes all measures in the Senate gun control package being voted on today, including:

♦ “Red flag” gun confiscation orders: Gun confiscation orders (GCOs) are issued in “ex parte” hearings in which the accused is not only denied the ability to defend himself in court but might not even know the order has been issued until law enforcement officers show up to confiscate his guns. In 2018, 61-year-old Gary Willis was shot by police after responding to banging on his door at 5:17 AM with a gun in hand. At least one-third of such orders are issued spuriously upon complaints by vengeful ex-spouses and other complainants with grievances. Ironically, if the person is truly dangerous, GCOs leave him at large and able to commit violence with other weapons.

So-called “boyfriend loophole”: This measure further expands the list of people prohibited from owning firearms after committing only misdemeanors rather than felonies. Although Republicans will argue the prohibition is only for five years, it creates another “loophole” which Democrats will eventually exploit to incrementally restrict private gun ownership.

♦Age restrictions and juvenile record provisions: Under these measures, an urban 20-year-old single mother living amidst rioting and looting would have a waiting period to obtain a firearm for self-protection. It represents an unconstitutional infringement on the constitutional rights of people old enough to drive, vote, and die in the service of their country.

For more information: www.GRNC.org 

Did Feinstein Just Sabotage The New Gun Bill?

I don’t know whether to condemn Sen. Dianne Feinstein (D-CA) or praise her. She has filed a bill as an amendment to the Bipartisan Safer Communities Act that would raise the age to purchase many semi-auto rifles, pistols, or shotguns to 21. The impact of this amendment could cause the carefully crafted “compromise” (sic) to fall apart.

AP Photo, March 1998. kolotv.com

From her press release:

Senator Dianne Feinstein (D-Calif.) today filed the Age 21 Act as an amendment to the Bipartisan Safer Communities Act, the gun violence prevention bill pending before the Senate. The amendment would raise the minimum age to purchase assault weapons and high-capacity ammunition magazines from 18 to 21.

Senator Feinstein reintroduced the Age 21 Act on May 19, five days after the massacre at a Buffalo supermarket and five days before the school shooting in Uvalde, each of which involved an 18-year-old who legally purchased an assault rifle.

 “The Senate gun safety bill is a step in the right direction, but it doesn’t address the major problem of teenagers owning weapons of war,” said Senator Feinstein. “It makes no sense that it’s illegal for someone under 21 to buy a handgun or even a beer, yet can legally buy an assault weapon.  My amendment is a commonsense fix with broad public support that should receive bipartisan backing and I hope that it’s allowed a vote.”

Reading through the amendment which I have embedded below, something as innocuous as a semi-auto shotgun such as the Mossberg 940 Pro Waterfowl Snow Goose edition would be forbidden to anyone under 21. The reasoning, according to the amendment, is that it has a tubular magazine that holds more than 5 rounds. Likewise, a turkey shotgun that had a pistol grip would be forbidden. On pistols, if you wanted to have a threaded barrel for a suppressor to protect your hearing, sorry but young ears need to be damaged is the message this amendment sends.

I really think these sorts of amendments could cause the whole thing to fall apart and force the Republicans to walk away. It is one thing to say you want to do careful background checks taking into account juvenile records for those under 21 and a whole another thing to ban a whole category of firearms to them. I don’t think a Manchin or Sinema could get by with voting for such a bill that included that along with the other stuff.

I do notice that Sen. Chris Murphy (D-CT) is not one of the co-sponsors of her original bill nor is Senate Majority Leader Chuck Schumer (D-NY).

Here is the text of Feinstein’s Age 21 Act amendment.


Neville McConnell

If you are a student of 20th Century history, you know that the British led by then-Prime Minister Neville Chamberlain engaged in a policy of appeasement when confronted by Hitler’s demands for the Sudetenland which was part of then Czechoslovakia. Emboldened by this, Hitler later invaded Poland which marked the start of the Second World War.

I think of the 14 Republican senators led by Minority Leader Mitch McConnell who voted to invoke cloture on the Bipartisan Safer Communities Act yesterday. It is a policy of appeasement. I presume that McConnell hopes that by appeasing the Democrats on gun control that it will not be an issue of great importance in the November elections. Is agreeing to a “bipartisan” bill on gun control now any different than Chamberlain’s “Peace for our Time”? Frankly, I don’t think so. If you read any of the comments from the gun control industry issued last night, you can see they are already planning for the next move.

What Sen. McConnell does not seem to realize is that appeasement will never regain the Senate for the Republicans. Those who want gun control will never vote for Republicans and those for whom gun control is anathema may just sit out the election.

Excuse my poor Adobe Photoshop skills but this is how I see it along with an rewriting of Chamberlain’s speech he was waving in his hand after returning from Munich.

Neville McConnell

And the speech.

We, the Democrats, and the Republicans, have had a further meeting today and are agreed in recognizing that the question of gun control is of the first importance for our two parties and for the United States.
We regard the agreement signed last night and the Bipartisan Safer Communities Act as symbolic of the desire of our two parties to ignore the Constitution. We are resolved that the method of capitulation shall be the method adopted to deal with any other commonsense questions of gun control by our two parties, and we are determined to continue our efforts to remove possible sources of difference, and thus to contribute to the end of the Second Amendment.

Chamberlain’s actual speech is here.