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U.S. Federal Court Enjoins ATF from Enforcing “Pistol Brace Rule” Against NRA Members (Wednesday, Apr. 3, 7:00pm)
A federal court in Texas has issued a preliminary injunction against the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) enjoining ATF from enforcing its “Pistol Brace Rule.” In response to a case filed by the National Rifle Association of America (“NRA”) in July 2023, U.S. District Judge Sam A. Lindsay of the U.S. District Court for the Northern District of Texas (1) ruled that the NRA had “associational standing” to bring this case because it is a traditional membership organization whose members rely on the NRA to protect their gun rights and (2) applied the Fifth Circuit Court’s earlier ruling in Mock v. Garland to determine that because ATF failed to allow the legally required notice-and-comment period and made major revisions to the rule without considering further input in response to the rulemaking, the ATF’s actions were likely unlawful. Based on these findings, the court enjoined the ATF from enforcing the “Pistol Brace Rule” against any member of the NRA.
This last point is important to note, since the court’s ruling, dated March 29, 2024, specifically states that the NRA was being granted the sought-after preliminary injunctive relief restraining Defendants from enforcing the “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (the “Final Rule”) against law-abiding NRA members. This language clearly limits the effects of the ruling to only those members of the organization that filed the lawsuit on behalf of its members. Non-NRA members are therefore theoretically still subject to the ATF rule, although, as a practical matter, it is unclear whether the ATF will make this differentiation in any attempts to enforce the Rule in the near future.
Further legal action on this issue is expected.
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S.C. State Law Enforcement Division (SLED) Issues Guidance Letter to Police Chiefs, Sheriffs and LEOs on State’s New Constitutional Carry Law (Wednesday, Mar. 13, 1:00pm)
The South Carolina Law Enforcement Division (SLED) has issued a four (4) page letter offering guidance to Police Chiefs, Sheriffs, and Law Enforcement Officers on the state’s new “Constitutional Carry” law.
Below is a copy, which provides a succinct explanation of all the different facets of the new law, as well as insight into state law enforcement’s guidance on its enforcement:
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Governor McMaster Signs Open Carry/Constitutional Carry Bill into Law (Thursday, Mar. 7, 4:00pm)
South Carolina Governor Henry McMaster has signed the state’s Constitutional Carry bill into law. The bill allows eligible citizens 18 and older to carry a firearm in public without gaining approval or a permit from the government. The state Senate passed the bill Wednesday in a 28-18 vote, after the state House passed the legislation on Tuesday, with lawmakers in that chamber voting 86-33 in favor of passage.
This action marks the second time this week that such legislation has been enacted, following Tuesday’s enactment of a similar law in Louisiana, and makes South Carolina the 29th state in the country to enact Constitutional Carry legislation.
Under South Carolina’s law, carrying a firearm is still banned in certain locations, such as schools, courthouses and polling places on election days. Residents can still obtain a permit if they wish to do so. The bill also increases penalties against those who are barred from carrying a firearm, such as convicted felons, if they are found with a gun, and establishes penalties against those who repeatedly carry a firearm in restricted areas.
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Constitutional Carry Bill One Step Closer to Becoming Law (Tuesday, Mar. 5, 5:00pm)
The S.C. House, on Monday, March 4, passed, by a vote of 86-33, a slightly amended version of the Senate-approved Constitutional Carry Bill, H.3594. This House vote was the result of further debate and negotiation in the House relating to the Bill as passed by the Senate on February 1, 2024.
The House adopted most of the Senate’s changes, including optional, free training offered twice a month in every county and tougher penalties for people who do not have a permit and are caught carrying where it is prohibited.
The bill now goes back to the Senate and is reported to be likely to be passed there within the next few days. Once passed by the Senate, it will be sent to the Governor, who has repeatedly stated his approval of the Bill. Upon his signature, it will become official law.
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S.C. Senate Passes Constitutional Carry Bill, Sends it Back to House for Another Vote (Friday, Feb. 2, 2024, 7:00pm)
The South Carolina Senate passed its version of the South Carolina “Open Carry” bill, H.3594, officially named Constitutional Carry/Second Amendment Preservation Act of 2023, yesterday afternoon.
The legislation had been under debate for almost a week, centering on the lack of a training requirement in the bill. But an amendment proposed late Wednesday night by Senate Majority leader Shane Massey (R-Edgefield), which would offer free gun training overseen by the South Carolina Law Enforcement Division (SLED) at least twice a month in every county, add additional penalties for people who illegally carry a gun where it’s prohibited, and create a statewide marketing campaign to inform people of these increased penalties, appears to be the compromise that got the bill passed.
Even so, there was still some opposition to the compromise amendment, including by the Judiciary Committee chair, a Republican, who argued that the amendment wasn’t enough to overcome the opposition of police chiefs from across South Carolina who urged lawmakers to keep the mandatory training requirement in place.
The bill would ban guns in the same places where they are currently not allowed, including schools, churches and courthouses, and the current State Concealed Carry framework would remain in place so that people could still obtain a concealed weapons permit if they wanted to do so (for maintaining reciprocity in other states, for example). The bill also increases penalties for people who illegally carry guns, including felons who carry despite being legally prohibited from doing so, and for people who possess stolen guns.
This bill will next head back to the S.C. House, which passed their version last year, which will have to vote on the amended version of the bill. The House can either agree with the Senate’s changes and send the bill to the governor for signature or they can propose and approve further changes to the Senate version and send the bill back to the Senate. Governor McMaster has publicly stated that he supports the bill as passed by the Senate, and hopes the House concurs with the Senate version and sends it to his desk “immediately.”
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Federal Judge Dismisses Charges Against Postal Worker for Carrying Gun in Post Office (Friday, Feb. 2, 2024, 5:00pm)
A U.S. District Judge in Tampa, FL recently dismissed charges against a postal worker for possessing a gun in a post office. Judge Kathryn Kimball Mizelle, appointed by former President Donald Trump, made the ruling, deeming that the federal statute under which the defendant was charged, which that prohibits the possession of firearms in federal facilities, including post offices, violated the defendant’s Second Amendment rights.
In making the ruling, Judge Mizelle expressly referenced the historical evolution of federal law regarding firearms in government buildings and emphasized that no historical practice dating back to the 1700s justified the post office gun ban, and, as such, applied what has become known as the Supreme Court’s “Bruen Standard” in determining that the prohibition was unconstitutional.
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UPDATE: S.C. Senate Now Set to Vote on Open Carry Bill This Week (Monday, Jan. 29, 2024, 12:00pm)
It is now being reported that a floor vote on the South Carolina “Open Carry” bill, H.3594, is now expected to take place “on or before” this coming Thursday, Feb. 1, 2024. According to at least one pro-Second Amendment organization, it appears there are some traditional pro-gun allies in the SC Senate that are “on the fence” about voting yes for this bill, although no particular individuals were named. If true, this might mean that passage of the bill is still in question.
MCRC members concerned about this issue are encouraged to contact their State Senator and respectfully communicate their interest. Contact information for all current members of the South Carolina State Senate (in alphabetical order) can be found by clicking on the following text: South Carolina Legislature Online – Member Biography (scstatehouse.gov)
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UPDATE: South Carolina Senate Continues to Debate Constitutional Carry Bill (Thursday, Jan. 25, 2024, 4:00pm)
As previously reported, the South Carolina “Constitutional Carry” bill, H.3594, was brought to the State Senate floor for consideration yesterday, Wednesday, Jan. 24, 2024. During that consideration, four additional amendments to the bill were introduced, including one to include establishments serving alcohol to the list of premises where weapons cannot be carried and another to allow for a process by which a judge can review the post-conviction prohibition from possessing a firearm for certain non-violent felonies and, if warranted, limit the prohibition to a period of not greater than five (5) years. Debate on these amendments was then “interrupted by adjournment”, meaning Wednesday’s session ended without further action on either the bill or the amendments. Further debate on the bill and amendments was held today, according to the official Senate record, but, once again, the debate was again “interrupted by adjournment” without a vote being held. At present, there is no indication as to when floor debate on the bill & amendments will be concluded and when a vote will be held.
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URGENT: South Carolina Senate Set to Vote on Constitutional Carry Bill Tomorrow, Wednesday, Jan. 24, 2024. (Tuesday, Jan. 23, 2024, 7:00pm)
It is being reported by various credible sources that the South Carolina “Constitutional Carry” bill, H.3594 (a copy of which can be found by clicking on the following text: South Carolina Legislature Online – Bill Search by Bill Number (scstatehouse.gov)), has been “fast-tracked” by the S.C. Senate, and is now set for a vote tomorrow, Wednesday, January 24, 2024.
This bill, which was passed the S.C. House in Feb. 2023 and has been awaiting Senate action since that time, would allow law-abiding gun owners to legally carry a firearm, open or concealed, without a government permit, while strengthening criminal penalties for illegal possession of a firearm. If the bill is passed without amendment by the Senate, it will go to Governor Henry McMaster’s desk for signature. If amendments are added, the bill will go back for reconsideration and vote by the House of Representatives on the amended legislation.
MCRC members with an interest in this issue are encouraged to contact their State Senator as soon as possible before tomorrow’s vote and respectfully communicate their interest in this matter. Contact information for all current members of the South Carolina State Senate (in alphabetical order) can be found by clicking on the following text: South Carolina Legislature Online – Member Biography (scstatehouse.gov)
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New York Federal Court Denies State Request to Dismiss Lawsuit Seeking to Overturn “Assault Weapon” Ban (Friday, Jan. 5, 2024, 1:00pm)
A U.S. District Court judge this week has denied a motion to dismiss a lawsuit challenging to New York’s “assault weapons” ban, allowing the challenge to proceed in federal court. The lawsuit, filed by two New York residents supported by gun rights advocacy groups in December 2022, challenged the state’s ban on so-called “assault weapons,” claiming the law was “infringing the right of law-abiding, peaceable citizens to keep and bear commonly possessed firearms for defense of self and family and for other lawful purposes.”
In response to the lawsuit, attorneys for New York officials filed a motion in the Southern District of New York to dismiss the complaint in May 2023, arguing that the court does not have the jurisdiction to address the plaintiffs’ claims. The state officials’ legal team said the plaintiffs “fail to establish that any injury-in-fact is traceable to the assault weapons ban” because they do not say they hold a license required to buy a semiautomatic rifle. However, U.S. District Judge Kenneth Karas sided with the plaintiffs, disagreeing with the defendants’ arguments and denying state officials’ motion to dismiss the case.
“While there may be serious questions about Plaintiffs’ exemption argument, the Court need not address that question here because Plaintiffs adequately allege standing under Defendants’ interpretation of the statute,” Judge Karas wrote. “Put simply, Defendants have failed to explain how invalidating the Assault Weapons Ban would have no effect on the ability to obtain licenses for those same weapons.”
The lawsuit will now proceed on the merits.
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Federal Court Blocks California Attempt to Restrict Concealed Carry in Public Places (Friday, Dec. 22, 2023, 3:00pm)
A federal district court judge in California has ruled that a California state law that banned people from carrying guns in most public places violates the U.S. Constitution. The list of places that the law prohibited the carrying of firearms included all daycare and school grounds, college campuses, government and judicial buildings, medical facilities, public parks and playgrounds, correctional institutions, public transit, public demonstrations and gatherings, athletic and professional sporting facilities, public libraries, amusement parks, zoos and museums, places of worship, banks, polling places, gambling establishments, any place where alcohol is sold and any other privately owned commercial establishment that is open to the public (unless the business owner took the affirmative step of putting up a sign saying guns are OK).
The federal district court said the law went too far by prohibiting lawful gun owners from carrying firearms in nearly every public place in California, and therefore effectively abolished “the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”
The California Attorney General has said he will appeal the ruling, but, for the time being, the law, which was supposed to take effect on Jan. 1, 2024, is now on hold while the case makes its way through the federal court system.
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U.S. Supreme Court Declines to Review Request for Injunction to Stop Illinois from Enforcing Semi-Automatic Weapon Ban (Friday, Dec. 22, 2023, 1:00pm)
The United States Supreme Court has refused to hear an appeal of a lower court ruling that denied a request for a temporary injunction against enforcement by the state of Illinois of its recently enacted ban against certain semi-automatic weapons and firearms accessories.
In an order with no noted dissents or explanation of its decision, the Supreme Court effectively allowed the ban, signed by Democratic Illinois Gov. J.B. Pritzker in January and which includes penalties for any individual who “carries[,] possesses [or] manufactures, sells, delivers, imports, or purchases any assault weapon or .50 caliber rifle” or “sells, manufactures, delivers, imports, possesses, or purchases any assault weapon attachment or .50 caliber cartridge”, to remain in force. The law also bans any kits or tools used to increase the fire rate of a semiautomatic weapon and includes a limit for purchases of certain magazines.
After this ruling, the law will remain in force while it is fully litigated in the lower courts.
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Federal Court Activity on Challenges to New York Gun Control Laws (Friday, Dec. 8, 2023, 6:00pm)
Two lawsuits in New York have resulted to changes in that state’s recently enacted restrictions on the concealed carry of firearms. In the first case, Christian v. Chiumento, the U.S. Court of Appeals for the 2nd Circuit ruled that a provision of the state law requiring private property owners to post signs allowing concealed carry on property open to the public, and penalizing non-compliance as a Class E felony punishable by up to 4 years in prison, was unconstitutional, noting that the regulated conduct — carrying a firearm for personal protection on private property — “falls within the Second Amendment right to carry” and, as such, a property owner shouldn’t be compelled by law, and possible criminal conviction, to have to post that such legal conduct is permitted. The second case, Hardaway v. Chiumento, plaintiffs had challenged a provision of the same state law which prohibited concealed carry in places of worship. This lawsuit led to the New York legislature changing the law to allow pastors and “persons responsible for security” to carry guns in places of worship.
In related news, a federal lawsuit has been filed in U.S. District Court for the Northern District of New York against the Cortland, N.Y. Housing Authority (CHA), alleging CHA has violated the 2nd Amendment by prohibiting tenants from possessing firearms on CHA premises. The plaintiffs are seeking a temporary restraining order, followed by a preliminary and permanent injunction, and a judgment by the court that this firearms ban is unconstitutional under the 2nd and 14th Amendments. The lawsuit is also seeking compensatory and/or punitive damages. This case is similar to a case filed in Illinois a few years ago, in which a federal court issued a permanent injunction against the East St. Louis Housing Authority for imposing similar restrictions on gun ownership and possession.
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U.S. Senators Introduce Bill Targeting “Gas-Operated Semi-Automatic Firearms” (Friday, Dec. 8, 2023, 3:30pm)
A group of United States Senators, including Angus King (IND-ME), Mark Kelly (D-AZ) and Martin Heinrich (D-NM) have introduced a new bill designed to ban modern sporting rifles. With a purported purpose of targeting “assault rifles” such as the AR-15, this bill, titled the “Gas-Operated Semi-Automatic Firearms Exclusion (GOSAFE) Act”, actually targets semiautomatic firearms of all kinds and configurations, presumptively banning them as a class, and then allowing for exemptions for those firearms that the government deems fit for “civilian use.”
The bill, which includes the usual “large capacity” magazine ban, capping legal capacity of most types of ammunition feeding devices at 10 rounds, takes the usual “assault weapon” ban further, banning all gas-operated semi-automatic firearms, and then directing the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to publish a list of whatever semiautomatic firearms are to remain legal for sale to and possession by the general public. The bill also proposes to give the government the codified ability to sue to have any firearms that remained legal by ATF exemption removed from ATF’s permissible list after the fact.
There is also an exception in the bill that allows ownership of “a handgun that . . . is a single or double action semi-automatic handgun that uses recoil to cycle the action of the handgun.” This exception clearly excludes all blowback- and gas-delayed-operated handguns, but a narrow interpretation of the meaning of “uses recoil to cycle the action” could lead to certain handguns being deemed within the scope of the proposed ban, including the popular Browning short recoil operating system that is used by essentially all modern handguns of 9mm or larger caliber.
The bill would also prohibit any modification to a permissible semiautomatic firearm that increased its “rate of fire”, including devices as bump stocks and binary triggers, but also possibly applying to any upgrades that make a firearm operate more smoothly or efficiently for competitive or disabled shooters.
There is a “grandfather” clause in the bill allowing people who already own firearms newly banned by the bill to keep them, but future transfer of such “grandfathered” firearms would be limited to “immediate” family members of the current owner and would require a federal firearm licensee to process the transfer as if it were a commercial sale. Magazines banned under the proposed legislation would also be “grandfathered,” but would not be transferable by their owners under any circumstance.
Critics of the proposed legislation are already arguing that the scope of the firearms that are to be banned is overbroad, vague and in violation of the current Supreme Court scope of allowable infringement on the 2nd Amendment. There has also been criticism aimed at the unprecedented authority the bill would give to ATF to determine unilaterally which firearms were sufficient to meet the bill’s vague definition of semiautomatic guns that are to remain “lawful for civilian use.”
The probability of successful passage of this bill is unclear at the present time, but we will continue to monitor and report on any developments. In the meantime, MCRC members are encouraged to exercise their rights as U.S. citizens and contact members of their Congressional delegation, whose contact information can be found via the yellow link above, and respectfully share their thoughts on this proposed legislation.
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Federal Court Rules Federal Ban on Handgun for Adults under 21 Years Old Unconstitutional (Friday, Dec. 8, 2023, 2:45pm,)
A federal district court judge in West Virginia has ruled that a federal law prohibiting handgun sales persons over 18 but under 21 years old is “facially unconstitutional,” and granted a summary judgment in favor enjoined the defendants — the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), ATF Director Steven Dettelbach and U.S. Attorney General Merrick Garland — from enforcing the provisions of 18 U.S.C. §§ 922(b)(1) and (c)(1), which is where the federal age restriction established by the Gun Control Act of 1968 are codified, “against Plaintiffs and otherwise-qualified 18-to-20-year-olds.” In a 40-page decision (available at https://saf.org/wp-content/uploads/2023/12/40.-brown-v-atf-opinion.pdf), District Chief Judge Thomas S. Kleeh from the Northern District of West Virginia wrote, “(b)ecause Plaintiffs’ conduct – the purchase of handguns – ‘fall[s] [within] the Second Amendment’s ‘unqualified command’ and the challenged statutes and regulations are not ‘consistent with the Nation’s historic tradition of firearm regulation,’ the Court finds [the law] facially unconstitutional.” The ATF is expected to appeal the ruling.
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Federal Court Round-Up (Monday, November 13, 2023, 1:00pm)
In the past few weeks there has been some activity on a number of Second Amendment-related cases in federal courts. While none of these cases currently has a direct relationship to any South Carolina laws or cases, they may have some level of impact on the exercise of gun rights in our state.
State Assault Weapons Ban
There recently have been contradictory federal court rulings on the constitutionality of so-called “Assault Weapons” bans, with different federal courts upholding the Illinois ban and finding the California ban unconstitutional. The California federal district court decision has been appealed to the Court of Appeals for the Ninth Circuit, which has already scheduled oral arguments for late January 2024. (Miller v. Bonta)
Meanwhile, the U.S. Court of Appeals for the Seventh Circuit upheld Illinois’ assault weapons ban last week, accepting arguments made in a number of lower court cases that were consolidated in the appeal it heard, that the ban constitutes a reasonable limit on the Second Amendment.
It is highly probably that both of these cases will eventually find their way to the U.S. Supreme Court.
Pistol Brace Rule
The Fifth Circuit Court of Appeals, covering Texas, Louisiana and Mississippi, recently found that the ATF exceeded its authority in issuing its “Pistol Brace” rule, which was therefore unconstitutional, and remanded the case back to the District Court for final disposition. Last week, the District Court issued its ruling and extended the ban on ATF enforcement of rule from just the parties to the preliminary injunction to all affected persons in the United States, effectively banning ATF from enforcing the rule nation-wide. It is unknown at this time whether ATF plans to appeal this ruling back up to the 5th Circuit (which previously ruled against them in this case), which is the only path has for ATF to appeal to the Supreme Court. (Britto v. ATF)
In the meantime, pending any such appeal, it is not necessarily clear what effect this ruling may have on any gun owner who registered their braced pistols as short-barrel rifles (SBRs), but the current legal consensus is that that anyone who registered their guns as SBRs with the ATF during the 120 day “grace” period must still treat their firearms as SBRs and comply with current ATF SBR rules, regardless of the end of the Pistol Brace rule, until there is a definitive federal ruling otherwise.
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