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SCOTUS Punts Most 2A Cases Again (Updated)

May 18, 2020 by 3 Comments

The Supreme Court has their conference on Fridays to examine which cases they wish to take and the ones they don’t. They announce the results on Monday in the Orders of the Court. Not all pending cases are sent to conference but those that are can be denied certiorari (or mandamus), accepted, or passed on to another week’s conference.

The Orders of the Court released this morning indicate that they punted all the major Second Amendment cases to the next week. The exception was Bradley Beers v. Barr which dealt with the denial of Second Amendment rights to those who had been involuntarily committed no matter how long ago.

In that case, the Supreme Court granted certiorari, vacated the judgment, and sent it back to the 3rd Circuit to dismiss as moot.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

Unfortunately, I don’t know enough about the Beers case to say why the Supreme Court said it was moot.

The Polite Society Podcast will have attorney Cody Wisniewski of the Mountain States Legal Foundation as our guest tonight. He will be discussing these potential cases and why he considered the finding of moot in NYSRPA v City of New York was not the end of the world for 2A cases. I will have a link up later where you can watch this on Facebook Live.

Cody was one of the attorneys who brought the case that forced New Mexico Gov. Michelle Lujan Grisham (D-NM) to reopen some gun stores in that state.

UPDATE: Thanks to Rob at 2A Updates I have an answer as to why the Beers case was considered moot. Mr. Beers has been cleared by the State of Pennsylvania, was granted a firearms license, and now has a legally owned firearm.

UPDATE II: The link to the Facebook Live broadcast of the Polite Society Podcast can be found here. It starts at approximately 7:05pm EDT tonight.

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Interesting Chart On Population Density

May 14, 2020 by 3 Comments

This chart came to me in an email I get daily from Strategas. I’m not sure how I got on their mailing list but I get daily charts regarding economic issues from them.

They noted in reference to New York City reopening for business:

Population Density Will Cause Trouble for NYC Reopening
Reopening is underway in many areas of the country but New York City may have a more difficult time than other major cities for one reason: population density. NYC has a population density that is more than 1.5x that of the second densest city. With social distancing playing a large role in stopping the spread of the virus, New York City faces many challenges and may take longer to return to normal.

This reinforces my introvert’s desire to have 50 acres with the house smack dab in the center of the property. Oh, and to have a thorn-filled hedge of bramble and other thorny stuff surrounding all 50 acres.

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April Was Another Banner Month For NICS Checks

May 13, 2020 by 2 Comments

April 2020 had the highest number of NSSF-adjusted NICS checks on record for the month of April in the past 21 years.

The April 2020 NSSF-adjusted National Instant Criminal Background Check System(NICS) figure of 1,678,223 is an increase of 69.1 percent compared to the April 2019 NSSF-adjusted NICS figure of 992,642. For comparison, the unadjusted April 2020 FBI NICS figure 2,878,176 reflects a 24.9 percent increase from the unadjusted FBI NICS figure of 2,305,136 in April 2019.

The National Shooting Sports Foundation adjusts the raw NICS data to remove those checks done for permits such as FOID cards from Illinois and for CCWs in many states. While it isn’t a one-to-one ratio of firearm sales, it is indicative of trends in sales by made through dealers and in those states requiring universal background checks. What it doesn’t show are most private sales as well as sales made to those who hold a carry permit that substitutes for a NICS check such as in North Carolina.

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2A Cases Still Alive

May 11, 2020 by 1 Comment

All 11 Second Amendment cases that are still pending before the Supreme Court have been redistributed for conference on Friday, May 15th.

Scroll through the embedded tweet to see all the cases.

Figuring out what the Supreme Court will do is like reading tea leaves. That said, I still think the SCOTUS will take one or more of these cases and hold the rest for remand based upon their final opinion.

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The NRA’s Lack Of A Succession Plan

May 7, 2020 by 6 Comments

Healthy organizations have succession plans. Good leaders make it a priority. Development of future leaders is such an organizational imperative that it is usually under the purview of the CEO. Having a succession plan is both forward looking and a measure of risk management.

Think how many corporations and non-profits have lost their chief executives to heart attacks, cancer, and accidents. The list goes on and on.

This has been at the back of my mind regarding the NRA for a long time now. What brought it to the forefront was a post by Jeff Knox on the lack of new leadership options for the NRA and its cloudy future.

For almost a decade I’ve been asking people in the firearms and Second Amendment community to seriously consider who might take over as Executive Vice President of the NRA if Wayne LaPierre were to retire or be hit by a bus.

About 6 years ago I got really serious about that question and was raising the issue in my regular columns, then 3 and a half years ago, after the election of Donald Trump, there was talk that Wayne might be offered some sort of position within the Trump administration, and I was very actively asking people for suggestions of possible successors, or at least the qualities a successor would need in order to be successful and keep the NRA strong. Finally, last year all sorts of accusations of financial improprieties and self-dealing among LaPierre and other NRA executives, broke in major media, and a lot of people began asking the same questions I’d been asking for years, but the same answer kept coming back… Crickets.

Let’s look at the people that Jeff notes have been seriously mentioned as potential successors as Executive VP and CEO of the NRA.

Chris Cox.

Out. Through the machinations of either Wayne LaPierre or his erstwhile Rasputin, William Brewer III, Chris was labeled as having been a part of a “coup attempt”. This was always strongly denied by Chris and he eventually resigned.

Ollie North.

Out. Again, was accused of plotting to overthrow Wayne and again the fine hand of William Brewer III seems to have been involved. This happened after Ollie started asking too many questions especially with regard to Brewer. Wayne portrayed this as “extortion“.

Kyle Weaver.

Out. Weaver was the Executive Director of General Operations who got replaced by Josh Powell. He is now the President and CEO of the Rocky Mountain Elk Foundation. Weaver had spent 18 years with the NRA in positions of ever increasing responsibility. The RMEF gets a 4 star rating from the Charity Navigator which is the highest possible. By contrast, the NRA is under a “concern advisory” from them.

If you need an example of a corporation that had good succession planning, look at General Electric. It has been the focus of many case studies on how to do succession planning. Jack Welch who served as CEO of GE for 20 years was known for grooming potential successors. He did such a good job that those who lost out on succeeding him at GE where snapped up by other companies.

It isn’t just the CEO who should be responsible for succession planning. Professor Ram Charan who taught at both Harvard Business School and Northwestern University, had this to say on succession planning.

A CEO or board that has been in place for six or seven years and has not yet provided a pool of qualified candidates, and a robust process for selecting the next leader, is a failure. Everyone talks about emulating such best practitioners as General Electric, but few work very hard at it.

By all objective measures, the NRA Board of Directors has failed. They have no succession plan for Wayne. The majority of the board has kow-towed to Wayne and jumped when he said jump.

Part of the reason the board fails is structural and part is due to the composition. The structural issue is that the Board of Directors is too damn large to be effective. The other issue is that many on the board are there due to either celebrity status or allegiance to Wayne. It is the latter that is the greater problem. The board owes a duty of loyalty to the organization and not to any one individual.

In the short run, nothing can be done about the size of the board. However, the board can still start to work on a succession plan to Wayne. Based upon Wayne’s age of 70 alone, this needs to be done. My fear is that the board will do as it has always done. That is do nothing and the organization will continue to suffer while our blood enemies grow stronger.

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All Existing 2A Cases Before SCOTUS Still Alive

May 4, 2020 by 3 Comments

The Supreme Court Order List released this morning denied certiorari to a number of cases. However, they did not deny nor grant certiorari to any of the 11 existing Second Amendment related cases that were sent for consideration at Friday’s conference.

This means that cases dealing with everything from interstate sales to carry to microstamping are still alive. I am keeping my fingers crossed that one or more of them will be granted certiorari. The dissents plus Kavanaugh’s concurrence in NYSRPA v. City of New York indicate at least four votes to hear Second Amendment cases. It only takes four votes but realistically you would need five or more to be assured of a pro-2A ruling.

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Does Aurora Sportsmen’s Club Look Like A Golf Course To You?

May 1, 2020 by 6 Comments

Take a look at that picture above. It is an aerial photo of the Aurora Sportsmen’s Club in Waterman, Illinois. It has rifle and pistol bays ranging from 50 feet to 600 yards. It has two Skeet fields, three Trap fields, a 5-stand course, a 12-stand Sporting Clays course, and an archery range. On top of all of that, it has three stocked fishing ponds.

Now tell me who in their right mind would confuse this with a golf course and want to regulate it in the same manner.

Gov. J.B. Pritzker (D-IL) issued Executive Order 2020-10 on March 20th. It explicitly lists firearm and ammo dealers and suppliers as essential businesses. It also said “outdoor activity” was a permitted reason to leave home so long as social distancing was observed. This included both golf course and shooting ranges.

A week later, Gov. Pritzker issued a subsequent order that ordered golf courses closed and shooting ranges such as those of the Aurora Sportsmen’s Club which didn’t have an attached gun store closed as well. They closed upon the advice of legal counsel when golf courses closed.

As a letter this week to Gov. Pritzker from Eric Callis, President of ASC, makes clear, the Illinois Department of Commerce and Economic Opportunity does not consider them an “essential business” and have said they have to remain closed.

Like many businesses, our not-for-profit club is being impacted by the stay at home order and shutdown of non-essential entities. We have followed the guidelines as proposed and with the revisions of March 27, closed the Club except to law enforcement agencies that needed to complete training to maintain certification and proficiency.

During this time we have watched as marijuana dispensaries remain open. We now see that dog groomers are going to be allowed to open. Even golf courses are being allowed to resume limited operations. Yet each time we reach out to DCEO through our elected officials, we continue to be told we can not reopen under any conditions.

So while golf courses, dog groomers, and pot shops (cannabis dispensaries) are allowed to reopen, a huge outdoor facility spread out of hundreds of acres is ordered to remain closed. Of particular relevance to this issue was the 7th Circuit’s ruling in Ezell v. Chicago which noted in reference to shooting ranges, “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”

In the letter cited above, Callis asks Gov. Pritzker for a written explanation with specifics as to why they aren’t allowed to reopen.

Ranges, training, and practice for proficiency protected under Heller, McDonald, and Ezell are not afforded the same opportunities as golf courses, dog groomers, and marijuana dispensaries?

Non-constitutionally protected activities are given more deference and protection than those enumerated via the Bill of Rights under the Second Amendment and court rulings?

Are hundreds of people allowed at indoor stores, yet we are not allowed to open up a 300-acre outdoor facility?

Can’t we re-open if we follow the same type of guidelines as golf courses?

The club has also appealed to US Attorney General William Barr who has told US Attorneys to be on the lookout for overly strict state and local orders which tread upon constitutional rights.

We, therefore, ask you to determine if those orders barring the use of indoor or outdoor ranges for the “training and practice” of firearms to maintain proficiency as enumerated in Ezell violate fundamental constitutional rights and are an overreach as you described in your memo.

We find it odd that dog grooming businesses in confined spaces are allowed to open, conduct business, and see people while our 300-acre outdoor range is not.  We find it troubling that there appears to be a political double standard for outdoor recreational activities that are not protected by the Constitution with enumerated rights but may be more politically correct.  We also find it inexplicable that drugs still considered to be illegal for sale and possession under Federal law are allowed to be sold, used, and shops that sell marijuana are open for business while actual legal conduct and constitutionally protected activities are being denied.

We appreciate your help in this matter and look forward to hearing from either your office or your representative.

According to the DeKalb County Health Department, they have had 101 confirmed cases of COVID-19. The overwhelming majority of the over 50,000 cases of COVID-19 in Illinois are in Chicago and Cook County. What might be appropriate for the dense urban areas of Chicago and its suburbs is not the same for rural DeKalb County where the club is located. Indeed, the Illinois Department of Public Health maps show zero cases in the club’s location of Waterman, Illinois.

Keeping the Aurora Sportmen’s Club closed is not good public policy nor, in my opinion, constitutional. I hope someone in Springfield wakes up sooner than later.

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WSJ Editorial Board Gets It Right

April 28, 2020 by 3 Comments

The Wall Street Journal published a scathing editorial today on the Supreme Court deciding to moot NYSRPA v City of New York. I think they got it right. For a co-equal branch of government to cower before the threats of senators like Sheldon Whitehouse should be unthinkable. Unfortunately, it wasn’t.

What an enormous abdication. The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.

The editorial then takes note of Justice Alito’s dissent which was joined by Justice Gorsuch in whole and by Justice Thomas in part.

The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”

On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.

Looking at Justice Kavanaugh’s concurrence, the editorial board found it “curious”.

Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.

They note that the Supreme Court has been timid on the Second Amendment and is treating it as a second class right. Moreover, if shrill threats from the Whitehouses of the world and the media can sway the Court, then we can expect it to escalate on this and other issues.

They conclude on the role of Chief Justice John Roberts.

The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.

I wish Kavanaugh was more like his fellow Georgetown Prep classmate Justice Gorsuch. I said back when Kavanaugh was selected that he wasn’t my first choice. I much preferred Tom Hardiman and Raymond Kethledge. Both had better backgrounds on the Second Amendment. Moreover, neither were Ivy League law grads which I found to be a big plus.

My only hope is that the Court does take one or more of the Second Amendment cases that are still out there awaiting cert. Ideally, they would take one of the carry cases, Mance v. Barr, and Pena v. Horan. That threesome with the correct decision would allow carry outside the home, poke holes in GCA68, and do away with the California handgun roster.

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A Win In Virginia For Indoor Ranges (Updated)

April 27, 2020 by

Despite the Supreme Court punting on the NYSRPA case, it hasn’t been a totally bad day in the courts. Judge F. Patrick Yeatts of the 24th Judicial District of Virginia granted SafeSide Virginia, VCDL, GOA, and the Association of Gun Ranges of Virginia a temporary injunction against Gov. Ralph Northam’s closure order.

Judge Yeatts found that Gov. Northam had exceeded his authority in closing indoor gun ranges. Northam had argued that his authority came from his chief executive power to assure that “laws are faithfully executed” and that he could ignore laws that limited his authority. Judge Yeatts disagreed saying:

The Court cannot agree with such an expansive interpretation of the Governor’s authority. His duty to “take care that the laws be faithfully executed” include the laws that limit his power during emergencies like §44-146.15 (3).

Accordingly, the Court finds that the Governor’s power to close whole categories of businesses would only come from §44-146.17, which is constrained by §44-146.15(3) regarding the right to keep and bear arms.

Judge Yeatts notes that the Virginia Constitution includes the words “trained to arms” in the prefatory clause of the Commonwealth’s equivalent of the Second Amendment. He goes on to say that “gun ranges provide a venue for such training to occur, thus, “bear arms” includes loading and shooting at a gun range.” He then references the 7th Circuit’s decision in the Ezell v. Chicago.

In discussing the appropriate level of scrutiny, Judge Yeatts says, “The Court declines to invent a level of scrutiny to circumvent the text in the statute.” §44-146.15(3) says that the governor cannot “in any way limit or prohibit the right of the people to keep and bear arms” during an emergency.

The judge believes the plaintiffs will succeed on the merits. He found that they would suffer irreparable harm if forced to stay closed, that the balance of equities favors granting a temporary injunction, and that the injunction favors the public interest.

His order granting the injunction does note that safe distancing and sanitizing edicts of Executive Order 53 should be followed.

Cam Edwards, writing at BearingArms.com, believes Northam will appeal.

The governor will almost certainly appeal Judge Yeatts decision, but for the moment, SafeSide Lynchburg and other indoor ranges in the state are allowed to re-open. The judge made the right call. Let’s hope that the state Supreme Court agrees.

I agree with Cam’s hope that the Virginia Supreme Court likewise agrees.

UPDATE: I should clarify that Judge Yeatts’ order only applies to SafeSide Lynchburg. He did not order the rest of the indoor ranges in the state be opened.

VCDL sent out an email regarding the win and noted:

As for the other indoor ranges that are still closed, VCDL is disappointed that they were not covered under the ruling and we are weighing our legal options at this time.  Our goal is to get all indoor ranges the option of reopening as soon as possible.