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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.

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Supreme Court Punts On NYSRPA V. City Of NY

April 27, 2020 by 2 Comments

The US Supreme Court issued its ruling on New York State Rifle and Pistol Association v. City of New York today. The bottom line is that they punted in a 6-3 decision finding the case moot.

More as I read the opinion and the dissents.

I know we wished for more but this, as much as I hate it, was not unexpected after the City of New York changed its regulations.

UPDATE: From Jonathan Adler at the Volokh Conspiracy.

Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.

For what it’s worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh’s concurrence got things right: “petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.” In addition, there is ample cause for concern that “some federal and state courts may not be properly applying Heller and McDonald.” Accordingly, Kavanaugh wrote: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

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A Great Example Of An Oxymoron

April 27, 2020 by

The Giffords Law Center to Prevent Gun Violence (sic), formerly known as Legal Center Against Violence, issued a press release on Friday that is a great example of an oxymoron. The release concerned Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra.

The head line of the release read:

Second Amendment Experts Denounce Court Ruling on California Ammunition Background Checks

When I think of the term “Second Amendment Experts”, I think of legal scholars like David Hardy, Dave Kopel, Stephen Halbrook, Glenn Reynolds, Joyce Lee Malcolm, and many others in the field. These attorneys and historians have studied the origins of the Second Amendment from English common law onwards. Dave Kopel is one of the editors of the first legal case law text on the Second Amendment.

Hannah Shearer, Litigation Director for Giffords Law, with all due respect, is NOT a Second Amendment expert. She is an ideologue determined to subvert the standard model of the Second Amendment as well as to promote gun control. She does have a couple of law journal articles and did appear in a panel discussion at Campbell Law School.

https://www.commondreams.org/author/hannah-shearer

Those articles are the exception as her bio indicates:

She regularly provides information and commentary on the Second Amendment and state firearm laws to media outlets, and has been featured in the Los Angeles Times, US News & World Report, and VICE News, among many other publications.

I have no doubt that Ms. Shearer is an intelligent person with her degrees from Yale and Stanford along with a circuit court clerkship. That said, to put her in the same scholarly class with David Hardy or Dave Kopel is an insult to Messrs. Hardy and Kopel. To call her a Second Amendment expert is an oxymoron.

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9th Circuit Issues Stay In Rhode

April 27, 2020 by

The 9th Circuit Court of Appeals granted an administrative stay of Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra late on Friday, April 24th. Judge Benitez had earlier that day denied an ex parte motion by Attorney General Xavier Becerra requesting a stay of his injunction.

In dismissing it he said, in part:

The Attorney General does not point to any change in circumstances or new evidence to undermine that conclusion. That the laws have been in effect for 10 months reflects this Court’s patient consideration, not its constitutional approval. Any delay was occasioned by judicial optimism that the high erroneous denial rate of early Standard background checks might significantly improve. It did not. Instead, the constitutional impingements on Second Amendment rights that began immediately, will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any constitutional right is offensive and unacceptable.

The Attorney General’s Office then filed an emergency motion with the 9th Circuit to stay the injunction pending appeal and requested immediate relief. They argued that a stay would be in the public interest and would prevent prohibited persons from purchasing ammunition. They went on to say the plaintiffs were not prevented from purchasing ammunition. Of course, this ignores the 16.4% error rate referenced by Judge Benitez.

It should be noted that the stay granted by the 9th Circuit is an administrative stay and does not address the merits of Becerra’s argument. They will rule on that later.

The stay was issued at 9:45pm local time on the 24th. Ammunition orders in the system prior to that could be processed according to what I’m reading.

Freedom Munitions and Brownells both said they would be honoring orders made prior to that time and would be shipping directly to the purchaser.

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COVID-19 Causes 2020 National Matches To Be Canceled

April 24, 2020 by 2 Comments

The COVID-19 pandemic has caused another major event to be canceled. The 2020 National Matches at Camp Perry have been canceled according to an alert from the Civilian Marksmanship Program.

After thoughtful consideration and reflection, the Board of Directors of the Civilian Marksmanship Program announces the cancellation of the 2020 National Matches at Camp Perry.    

“This decision was not arrived at lightly, but was prompted by restrictions resulting from the COVID-19 pandemic.  These matches date back to 1903 and have been held at Camp Perry since 1906,” said Judith Legerski, CMP Board Chairman.  

“The health and safety of our competitors, participants, vendors, military support, volunteers and staff members is of the upmost importance — overriding even the historical imperative of maintaining the continuity of the Matches,” agreed Legerski, with Chief Operating Officer Mark Johnson and Programs Chief Christie Sewell.    

“We were unable to come up with a manner in which we could safely produce the Matches.  Housing and pit duty were amongst the many insurmountable problems faced by the CMP Board,” Legerski explained.     The CMP looks forward to the 2021 National Matches at Camp Perry as the best marksmanship celebration ever!  In the meantime, please stay safe and healthy at home, as we prepare for the new normal ahead of us.

All CMP operations have been shut down since mid-March and a full resumption of business remains undetermined.  Full refunds will be made to those who have already registered.  

The last time the National Matches were canceled was in 1950 due to the start of the Korean War. They resumed in 1951 and returned to Camp Perry in 1953.

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Big Win In California

April 24, 2020 by 5 Comments

Olympian Kim Rhode and the California Rifle & Pistol Association won a preliminary injunction against enforcement of California’s ammunition background checks and importation ban yesterday.

US District Court Judge Roger T. Benitez opened his 120 page opinion granting the preliminary injunction by saying:

The experiment has been tried. The casualties have been counted.
California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.

This is a big win for the CRPA, attorney Chuck Michel, and especially the gun owners, new and old, of California.

Judge Benitez went on to conclude:

Together, the background check requirement for all ammunition purchases in California and the anti-importation provisions that prohibit direct sales to residents often effect a complete statutory barrier to the lawful purchase of ammunition. Moreover, the provisions are interlocking and derive from the same section of Proposition 63. See §§ 8.1 through 8.16. The anti-importation provisions are not severable from the ammunition background check requirements. Even if only one part was unconstitutional both parts would need to be enjoined. But severability does not matter here, as both parts fail constitutional muster and require injunctive relief….

It is not the Court’s role to dictate to a state how it should go about attempting to accomplish its goal. If the state objective is to make it extremely difficult, if not impossible, for its law-abiding citizens to purchase protected ammunition, then this law appears to be well-drafted. However, if the genuine object is to keep ammunition out of the hands of those who should not be able to buy it, perhaps the State could create a database (that would include persons prohibited, i.e., aliens
unlawfully present, felons, and others) and simply make that information available to sellers by cross-checking with the magnetic strip on a standard driver’s license and by allowing out-of-state vendors the same ability to engage in commerce as it does California vendors.

I would wager house money that California Attorney General Xavier Becerra will appeal this ruling. As of this morning, he has not nor has he published a press release indicating any acknowledgement of the Judge Benitez’s ruling. If the state does appeal, the question then becomes will they be granted a stay to the preliminary injunction while they appeal the ruling. We will see.

In the meantime, Californians are free of an onerous and unconstitutional burden on their Second Amendment rights.