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FEDERAL JUDICIAL UPDATE (06 JUNE 2025)
There have been four (4) recent federal court actions related to Second Amendment issues that may be of interest to MCRC members.
Maryland “Assault Weapons” Ban/DC “High Capacity” Magazine Ban
In the first of two of three actions by the U.S. Supreme Court, the Court decided not to hear the appeals of lower federal appeals courts’ ruling upholding states’ bans on “assault weapons” and “high capacity” magazines.
In the first case, the 4th Circuit Court of Appeals decided in, Snope v. Brown, that it would not consider a further appeal of the current Maryland law banning so-called “Assault Weapons”. While Court rules require that the agreement of 4 Justices to hear a case is required, in this instance, only 3 members of the Court – – Alito, Gorsuch and Thomas – – found there were sufficient issues with the 4th Circuit opinion to warrant review. However, it should be noted that Justice Kavanaugh, who did not join in with the group of Justices voting to hear the case, issued a statement in which he stated that, given that millions of Americans own AR–15s and that a significant majority (over 80%) of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller. Kavanaugh’s statement goes on to call out how it is “analytically difficult to distinguish” AR-15s from the handguns that Heller explicitly protects, in that both are semi-automatic and used for lawful purposes, and that, while both are used in crimes, the vast majority prefer handguns due to their concealability. Kavanaugh then concludes his statement by emphasizing how “a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review”.
Based on this, and the fact that Kavanaugh knows he would only be the 4th vote (of 5 needed for a majority on a final decision), it is arguable that Kavanaugh may have purposely withheld his vote to hear the case until such time the Court may be presented with a similar case for which he can be assured that there is a majority of the nine Justices in agreement regarding the issues presented, because otherwise he may be risking creating Supreme Court precedent that will determine that such bans are constitutional, with such a decision ultimately precluding the Court from ever having the opportunity to re-hear such a case based on the current 2nd Amendment-based precedent — i.e. he purposely withheld his vote to hear the case to preserve the opportunity for the Court to address the issue at a later time when it might be less “risky” for the Court to hear the case and render a final decision.
Similarly, on Friday, the Supreme Court decided not to hear a challenge to the District of Columbia’s ban on “high capacity” magazines, in a situation similar to Maryland case (i.e. only 3 votes in support of cert, with a possibility that the 4th vote was withheld to preserve the Court’s opportunity to address the issue in the future).
Lawsuit by Mexican Govt. Seeking to Hold U.S. Gunmakers Liable for Firearms Crimes in Mexico
On Thursday, the Supreme Court handed down a unanimous opinion on that dismisses a lawsuit brought by the nation of Mexico against U.S. gun companies. In this case, Smith & Wesson v. Estados Unidos Mexicanos, the First Circuit Court of Appeals ruled against Mexico on their allegation that gun manufacturers aided and abetted unlawful gun sales that routed firearms to Mexican drug cartels. The gunmakers appealed this decision and the Supreme Court found that Mexico had failed to assert a plausible claim that the gun manufacturers’ actions amounted to “aiding and abetting someone else’s firearms offense” in a way that would allow Mexico, under an exception to the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA) to nullify the broad immunity that Congress has afforded to American gunmakers from lawsuits seeking to hold them liable for harms “caused by the misuse of firearms by third parties, including criminals.”
In an opinion authored by Justice Elena Kagan the Court concluded that even if US gun companies likely knew that some of their guns were being resold in the illegal market, or that some of their guns are designed to appeal to Mexicans, that is not enough to overcome the immunity granted by PLCAA, specifically noting that it’s not enough for Mexico to showing that the gunmakers could have taken additional steps to prevent their products from winding up in the hands of drug cartels to prove that their actions fall within the “aiding and abetting exception” to immunity. Rather, the Court stated that “the merchant becomes liable only if, beyond providing the good on the open market, he takes steps to ‘promote’ the resulting crime and ‘make it his own.’”
Kansas District Court Machine Gun Case
The “surprise” court action of the week occurred in a federal district court in Kansas, where a federal district judge ruled that the ban on civilian-owned machine guns may violate the Second Amendment. The case, United States v. Morgan, challenged the 1986 Hughes Amendment, a law that bans civilians from owning newly manufactured machine guns. The ruling marks the first time in recent memory that a federal trial court has directly stated that machine guns are protected “arms” under the Second Amendment.
The case, which has already been appealed to the next higher level federal court, involves a man charged with illegal possession of a machine gun under 18 U.S.C. § 922(o), which bans any civilian from possessing machine guns made after 1986. The guns in question included a modified AR-15 and a Glock pistol converted with an “auto switch”. The federal district judge tossed two of the charges, arguing that machine guns qualify as “bearable arms” and thus fall within the protections of the Second Amendment. His decision relied heavily on the text of the Second Amendment and key rulings like District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association v. Bruen (2022), specifically noting that there’s no historical tradition of banning fully automatic weapons in this nation’s founding era, and emphasizing that militias during the Revolutionary era reported to duty with the most advanced weapons they had, and that today, the equivalent includes machine guns. Thus, the judge used both decisions to question the constitutionality of the machine gun ban. If militias used the best weapons available at the time of the Founding, and machine guns are today’s equivalent, the court argued, they should be protected.
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S.C. House Bill Protecting Privacy of Firearms and Ammunition Purchases Passed by Judiciary Committee (09 April 2025, 1:00pm)
The Second Amendment Financial Privacy Act, H.3930, which would prohibit the use of firearm and ammunition-specific Merchant Category Codes that could be used to track firearm and ammunition purchases and possibly create a registry of lawful gun and ammunition buyers, has been favorably reported out of committee. The bill also includes an enforcement mechanism that allows the South Carolina Attorney General to pursue legal remedies against entities that violate these provisions.
The bill will now head to the S.C. House floor, where it will be debated and voted upon, possibly before the end of the month.
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Supreme Court Round-up (08 Apr 2025, 12:00pm)
In the past 2 weeks, the U.S. Supreme Court has issued two (2) decisions regarding gun rights.
In the first case, from late March, the Court ruled 7-2 that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule regulating so-called “ghost guns” and weapon parts kits that can be readily assembled into firearms was within the scope of the Gun Control Act of 1968, overturning lower court rulings by both the district and circuit courts, which had upheld a challenge to the rule by gun part manufacturers.
In the second case, the Court declined to hear a challenge to the CCW licensing guidelines and the “sensitive locations” restrictions of New York’s 2022 Concealed Carry Improvement Act. Plaintiffs had sought to appeal these provisions under the Supreme Court’s Bruen test, named after a Supreme Court case that found that the 2nd Amendment right to keep and bear arms protects an individual’s right to carry a handgun in public for self-defense, and determined that laws attempting to regulate the exercise of this aspect of 2A Rights had to be “consistent with the nation’s historical tradition of firearm regulation.” The Court’s decision, issued without a written opinion, did not explain how the New York law conformed with the Bruen test.
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President Trump Issues EO Calling for Broad Review of Firearms Regulations (10 Feb 2025, 3:00pm)
On Friday, Feb. 7, President Donald Trump issued an Executive Order (EO) ordering the Attorney General (AG) to examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies to assess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.
The decree appears to provide a broad mandate to the AG to not only potentially undo the myriad of EOs and regulations issued by the previous administration, but based on the fact that the Order directs the AG to examine the federal classifications for firearms and ammunition, as well as the processing of new applications to manufacture, transfer and export guns, to also undertake a more expansive review of the existing overall federal regulatory scheme relating to firearms. Accordingly, while it is expected that Biden-era rules relating to enhanced background checks, including the so-called “gun show” & “boyfriend” “loopholes”, and the so-called “ghost gun” rule will be subject to the review, some commenters are anticipating that other components of the overall gun regulation structure will be part of the review and final report. The EO set a deadline of 30 days, or until March 7, 2025, for the AG to report back to the President. Further details will be reported as the review takes shape.
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Federal Court of Appeals Rules that Federal Law Prohibiting Adults Under the Age of 21 from Purchasing Handguns is Unconstitutional (01 Feb 2025, 4:30pm).
On Thursday, Jan. 30, 2025, a three-judge panel from the Fifth Circuit Court of Appeals, whose jurisdiction covers Texas, Louisiana and Mississippi, unanimously ruled that a federal law banning firearms dealers from selling handguns to adults under 21 years of age violates the Second Amendment and therefore is unconstitutional. This ruling represents a reversal of a prior ruling from this court, which in 2012 found the same law constitutional. The latest opinion specifically referenced the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen, which held that gun restrictions must be consistent with the historical tradition of firearm regulation in the U.S., as the reason for this change.
Rejecting the government’s argument that citizens originally couldn’t vote until they turned 21, the appeals panel said the Justice Department hadn’t met its burden to show young adults in the targeted age group have historically been restricted from possessing handguns for self-protection.
“Ultimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among ‘the people’ whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban”, wrote U.S. Circuit Judge Edith Jones, before further noting that “[t]he history of firearm use, particularly in connection with militia service, contradicts the premise that eighteen-to-twenty-year-olds are not covered by the plain text of the Second Amendment.”
What happens next is unclear. The Fifth Circuit panel sent the case back to the lower court for further proceedings in line with the ruling. Some commenters following this case, including a representative of one of the state-level gun rights organizations who joined in the case with the initial plaintiffs, have noted that the lower court to which the case was remanded might issue an injunction blocking the law entirely, or it might limit the scope of the appeals court directive to just prohibit enforcement against the individual plaintiffs and members of the plaintiff organizations in this particular case.
More importantly, this case is one of three active legal battles in federal court challenging age limits on handgun purchases, with the Court of Appeals for the Fourth Circuit having heard arguments in a similar case the same day that the Fifth Circuit opinion was issued, and a pending case out of the Eighth Circuit, which is awaiting decision by the U.S. Supreme Court as to whether it will hear an appeal of that Circuit Court’s decision to overturn a Minnesota state law that is similar to the federal law at issue. Accordingly, it appears likely that, for the sake of uniformity, the U.S. Supreme Court will end up being the forum in which this issue is ultimately decided.
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Companion Concealed Carry Reciprocity Bills Introduced in U.S. House and Senate (13 Jan 2025, 2:30pm)
As the 119th Congress opens its 2025-26 session, two bills calling for nation-wide reciprocal recognition of concealed carry permits in the U.S. House of Representatives and the U.S. Senate have been introduced.
The Constitutional Concealed Carry Reciprocity Act (H.R. 38) was re-introduced by Rep. Richard Hudson (R-NC) with 151 co-sponsors on Jan. 3, 2025. This is the 5th time Rep. Hudson has introduced this bill in Congress, going back to 2015. The bill would provide nationwide reciprocity for concealed carry license holders and residents of Constitutional Carry states so that they could carry in any other state or jurisdiction that allows concealed carry and would also allow any such authorized persons to conceal carry in National Parks, National Wildlife Refuges or other similar federally administered land.
On Jan. 9, 2025, Sen. John Cornyn (R-TX), along with Sen. Chuck Grassley (R-IA), Chairman of the Senate Judiciary Committee and 42 other co-sponsors, introduced a Senate version of this same bill, also titled the Constitutional Concealed Carry Reciprocity Act (S.65). The Senate version of the bill would likewise allow individuals with concealed carry privileges to exercise those rights in any state that allows concealed carry, within the limits of each state’s laws. However, this version omits the provisions allowing concealed carry on federally managed land.
Both bills have been referred to the Judiciary Committee of their respective chamber, where they will be reviewed and await further action.
Any MCRC members who feel strongly about this legislation are encouraged to contact their U.S. Representative and Senators to communicate their thoughts in a respectful and professional manner, via the links that can be accessed through the above button on this webpage.
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Two Gun-Related Bills Pre-filled in SC (13 Jan 2025, 2:00pm)
On Dec. 11, 2024, Sen. Deon Tedder pre-filed S.136, a bill that would allow any person convicted of unlawful possession of a handgun to apply for an expungement of one such conviction, provided that the conviction occurred prior to the enactment of the S.C. Constitutional Carry/Second Amendment Preservation Act of 2024 and that the application for expungement is made within five years of the enactment of the bill.
On Dec. 12, 2024, Reps. Jones, Spann-Wilder and Grant pre-filed H.3596, titled “The Kingston Act”, which would make it unlawful for a person to leave an unsecured firearm in a place where a child could access the firearm, and declared that the fact that a child was able to access an unsecured firearm constitutes is prima facie evidence that the unsecured firearm was left in a place where a child could access it, thereby alleviating prosecutors from having the burden to prove those elements of this newly created crime. The bill sets forth the degree of crime (i.e. misdemeanor or class of felony) and potential penalty of up to 30 years in prison for violation of this law, dependent on the severity of harm caused by the child’s actions with the firearm.
The bill also makes it a crime for anyone to authorize a child to use a firearm unless that child is under the direct supervision of a responsible adult (i.e. not impaired by drugs/alcohol/mental illness, not legally restricted from possessing a firearm, not on any sex offender/child abuse registry). The bill defines “direct supervision” as follows: “supervision provided by a responsible adult who is physically present with the child and who maintains continual and undistracted involvement with the child while the child is in possession of a firearm. However, if a child is fourteen years of age or older and is in possession of a rifle or shotgun while working in agriculture or forestry or during the course of a lawful hunt, then ‘direct supervision’ means supervision provided by a responsible adult who is available if and when needed even if not physically present.” This section also goes on to set forth the degree of crime (i.e. misdemeanor or class of felony) and potential penalty of up to 30 years in prison for violation of this law, again dependent on the severity of harm caused by the child’s actions with the firearm.
The bill does expressly note that it does not to limit a responsible adult’s ability to gift a child a rifle or shotgun as long as the responsible adult ensures that the firearm is locked and is not unsecured and ensures that a child, including the child to whom the firearm was gifted, cannot access the firearm without the direct supervision of a responsible adult.
Both bills have been referred to their respective Judiciary Committees, which will consider them when the S.C. House and Senate begin their next session on Jan. 14, 2025.
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