UPDATE: Announcement on Effective Date for ATF “Final Rule” on Pistol Braces (Friday, Jan. 27, 2023, 4:00pm)

During a public appearance yesterday, Jan. 26, 2023, Erik Longnecker, Deputy Chief of the Public Affairs Division of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), announced that the planned publication date in the Federal Register for the ATF’s “Final Rule” on pistol braces (i.e. the date from which the 120 day grace period will start to run) is currently set for Tuesday, January 31, 2023.

For more information about the rule and the grace period, please see the Wed., Jan. 18, 2023 3:00pm entry, below.

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U.S. Senate Democrats Introduce “Assault Weapon” Ban and Age Restriction Legislation (Wednesday, Jan. 25, 2023, 3:00pm)

On Monday, U.S. Senators Dianne Feinstein (D-CA), Richard Blumenthal (D-CT) and Chris Murphy (D-CT) introduced two separate gun control bills, one designed to outlaw so-called “assault weapons” and another to raise the minimum age to purchase such so-called “assault weapons” from 18 to 21 years old.

The Assault Weapons Ban of 2023 [click link to view the bill] would ban the sale, transfer, manufacture and importation of “military-style” “assault weapons” and “high-capacity” magazines and other “high-capacity” ammunition feeding devices.

Specifically, this bill, if enacted into law, would:

  • Ban the sale, manufacture, transfer and importation any of the 205 “military-style” “assault weapons” that are listed by name.
  • Ban any “assault weapon” with the capacity to utilize a magazine that is not a fixed ammunition magazine and has one or more military characteristics including a pistol grip, a forward grip, a barrel shroud, a threaded barrel or a folding or telescoping stock.
  • Ban magazines and other ammunition feeding devices that hold more than 10 rounds of ammunition.
  • Require a background check on any future sale, trade or gifting of an “assault weapon” covered by the bill, including private sales or transfers.
  • Require that grandfathered “assault weapons” are stored using a secure gun storage or safety device like a trigger lock.
  • Prohibit the transfer of “high-capacity” ammunition magazines.
  • Ban bump-fire stocks and other devices that are deemed to increase the rate of fire of semi-automatic weapons.

The bill also includes two notable exemptions to these bans:

  • A “grandfather” clause that exempts all weapons and magazines lawfully possessed at the date of enactment; and
  • A list of over 2,200 guns that, because they have been deemed useful for hunting, household defense or recreational purposes, are not included in the ban.

The Age 21 Act [click link to view bill] would raise the minimum age to purchase “assault weapons” from 18 to 21, the same requirement that currently exists in law for handguns.

Congressman David Cicilline (D-RI) has announced that he plans to introduce a companion version of the Assault Weapons Ban of 2023 in the House of Representatives.

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Illinois State Court Issues TRO Stopping Enforcement of New Gun Ban (Saturday, January 21, 2023, 12:00pm)

An Illinois judge on Friday temporarily blocked the state from enforcing a newly enacted ban on certain semiautomatic rifles & pistols and so-called “high-capacity” magazines. Effingham County Judge Joshua Morrison issued a temporary restraining order (TRO) after former Republican candidate for Attorney General Tom DeVore sued to block the law. DeVore said in a press release he’s representing citizens from 87 Illinois counties who are challenging the law, which he called, “an outright attack on the constitutional rights of lawful gun owners across the state.”

Illinois Governor J.B. Pritzker (D), who supported the legislation and signed it into law, said he was not surprised by the decision and accused the plaintiffs of advancing “ideology over public safety” in seeking to have the law struck down. “I remain confident that the courts will uphold the constitutionality of Illinois’ law, which aligns with the eight other states with similar laws and was written in collaboration with lawmakers, advocates, and legal experts,” Pritzker said.

In an 11-page ruling, Judge Morrison affirmed that the plaintiffs have a constitutional right to bear arms that is protected by both the Illinois state Constitution and the Constitution of the United States. “Plaintiffs are being immediately and irreparably harmed each day in which their fundamental right to bear arms is being denied,” Morrison wrote.

The judge cited the U.S. Supreme Court decision of New York Rifle & Pistol Association v. Bruen from last year that struck down New York state’s concealed carry law. This 6-3 ruling found that the plain text of the Second Amendment protected the right of the plaintiffs to carry firearms for self-defense.

Morrison also wrote that “[d]ue to the speed with which this bill was passed, the effect to protected classes could not have been considered, nor could the Legislature have studied if this was the least restrictive way to meet their goal.” Gov. Pritzker signed the law on Jan. 10 in response to the mass shooting that killed seven and injured 30 at the Highland Park July Fourth parade. The law bans dozens of specific types of handguns and rifles, guns that fire certain .50-caliber cartridges, and attachments, and also limits detachable magazines to 10 rounds for long guns and 15 rounds for pistols.

The governor defended the gun control law, called the Protect Illinois Communities Act, saying it “takes weapons of war and mass destruction off the street while allowing law-abiding gun owners to retain their collections,” and added that he “look[s] forward to the next steps in this case and receiving the decision this case merits.”

The Illinois State Rifle Association (ISRA), a gun rights group that has filed a separate challenge to the gun control law in federal court, applauded Morrison’s ruling. “This is a clear indication from the court that the General Assembly and Governor Pritzker rammed this law through improperly. The ISRA firmly believes the law is an infringement on all law-abiding residents’ 2nd Amendment rights,” the group said. This case is still pending in the federal courts.

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US Department of Justice Announces Submission of “Final Rule” on Pistol Stabilizing Braces to the Federal Register for Publication (Wednesday, Jan. 18, 2023, 3:00pm)

On Friday, January 13, 2023, the United States Department of Justice (DOJ) announced on its website that it has submitted the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) “Final Rule” regulating the use of stabilizing braces on pistols to the Federal Register.  This is the next to last step for making the regulation binding federal law, and the rule only becomes effective upon publication in the Federal Register which will include an effective date.

In a Press Release posted to its website, DOJ announced that it had submitted the Final Rule, which effectively re-classifies pistols with stabilizing braces that have barrels of less than 16 inches as short-barreled rifles (SBRs), with the requisite taxation and registration requirements applicable to SBRs under the National Firearms Act of 1934 (NFA).

The “Final Rule” clarifies that all former guidance or rulings on stabilizing braces are void, and then amends the existing definition of “rifle” by adding language that now includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder within the definition of rifle, provided that certain other factors indicate that the weapon is designed, made, and intended to be fired from the shoulder.

These “other factors” include: (1) whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles; (2) whether the weapon has a length of pull consistent with similarly designed rifles; (3) whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed; (4) whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations; (5) the manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; & (6) information demonstrating the likely use of the weapon in the general community.

The rule allows for a 120-day period from the effective date (which will be stated in the Federal Register publication) for manufacturers, dealers, and individuals to register tax-free any existing NFA short-barreled rifles covered by the rule. Other options including removing the stabilizing brace to return the firearm to a pistol or surrendering covered short-barreled rifles to ATF. Nothing in this rule specifically bans ownership of stabilizing braces or the use of stabilizing braces on pistols — it just redefines pistols fitted with such braces as SBRs and makes them subject to the applicable registration and taxation requirements under the NFA and prior regulations promulgated pursuant to that law.

The National Rifle Association (NRA) has already announced that it intends to take legal action against the rule once it has been published and becomes law. In its own announcement relating to these developments, the NRA seems to indicate that its legal challenge may focus on the vagueness of the criteria for making determinations of applicability of the new rule, and on the recent Fifth Circuit Court of Appeals invalidation of the ATF bump stock rule on the grounds of regulatory overreach (i.e. attempting to use regulations to change statutory definitions).

We will continue to monitor this situation and will inform MCRC members once the Final Rule has been officially published, and of all developments, including legal challenges, that may follow.

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Federal Court of Appeals Issues Ruling Overturning ATF Bump-Stock Ban (Sunday, Jan. 15, 2023, 12:00pm)

The Fifth Circuit Court of Appeals, which has jurisdiction over the area that includes the states of Texas, Louisiana and Mississippi, in a rare en banc decision (meaning it was heard and decided by all the judges of the Circuit rather than the usual 3-judge panel), has ruled in a 13-3 vote that the 2018 regulation outlawing bump-stocks is a violation of federal law. While this may appear to be a legal triumph worthy of celebration by Second Amendment advocates, this victory should be viewed with caution.

First, it must be noted that the Court made no ruling on what role the Second Amendment has on the ATF’s bump-stock ban or on its authority to regulate firearms. The reasoning of the Court was not based on Constitutional grounds, but rather on federal administrative law, with the Court finding that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) erred in classifying semi-automatic weapons modified with bump-stocks as “machine guns”, since such modified weapons would not fall within the scope of the existing legal definition of a “machine gun.”

Specifically, the Court opinion stated: “A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machine gun’ as set forth in the Gun Control Act and National Firearms Act.”

This language is clear in its implication that, in the opinion of the Fifth Circuit Court, the Gun Control Act and the National Firearm Act still present a legal framework within which the ATF may continue to regulate firearm ownership and use.

Second, as noted above, the limited jurisdiction of the Fifth Circuit Court means that this ruling only applies to the states within its geographic authority (TX, LA & MS). For all intents and purposes, the ATF regulation banning bump-stocks is still in effect in the 47 other states and DC, and will remain so until overturned by the U.S. Supreme Court, or otherwise legally nullified nation-wide.

Third, the legal scope of the ruling means that the ATF is still free to attempt to promulgate a replacement regulation banning bump-stocks, provided it can create legally supportable reasoning that complies with U.S. federal administrative law. Or Congress could even weigh in on the matter and make an attempt to include a bump-stock ban in a new round of “gun control” legislation. The Fifth Circuit’s ruling does not preclude either of these scenarios.

Accordingly, while this court decision is reason for optimism for gun rights advocates, it should be viewed with caution for the time being, pending future legal activity on this issue.

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Constitutional Carry” Bill Introduced and Referred to SC House Judiciary Committee (Wednesday, January 11, 2023, 1:00pm)

New legislation, entitled “The South Carolina Constitutional Carry/Second Amendment Preservation Act of 2023” (H 3594), which would codify the right of law-abiding adults to carry a firearm for self-defense without having to first pay fees or obtain government permission, has been formally introduced in the South Carolina House and has been referred to the House Committee on the Judiciary.

The bill, which was written by Representative Bobby Cox (R- District 21 [Greenville]) and co-sponsored by 44 other representatives, was pre-filed on December 22, 2022, and cleared the initial steps in the legislative process (introduction, first reading & referral to Committee) on January 10, 2023.

The bill, if enacted, would institute “Constitutional Carry” by abolishing the current state concealed carry licensing requirements, revising the rules relating to allowable concealed carry in establishments serving alcohol, schools, churches and state parks, and amending the rules for notification and signage for locations that seek to prohibit concealed carry. It also aims to modify the existing prohibition on firearm possession by persons convicted of violent crimes by revising the list of crimes to which this prohibition would apply.

No hearings have been set for H 3594, but we will continue to monitor this legislation and provide updates, including a more detailed analysis of its provisions, as the bill moves further in the legislative process and its language starts to be finalized.

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Local State Representative Pre-files Bill to Ban Certain Semiautomatic Weapons (Monday, Jan. 2, 2023, 1:30pm)

State Rep. Wendell Gilliard (D-Charleston County) has pre-filed a bill that seeks to ban buying, selling and owning certain semiautomatic weapons across the state of South Carolina. This marks the fourth time Gilliard has submitted the bill to the statehouse. Despite it never passing through subcommittee the first three times, Gilliard says he’s optimistic he will receive additional bipartisan support to potentially get this bill to a vote and that he is willing to compromise with fellow lawmakers to move the bill forward.

Noting that the measure’s goal is to help cut down on the number of mass shootings, Gilliard said these weapons should only be in the hands of the military, not private citizens, and the bill would ban any person from owning them if it is passed.

The bill identifies assault weapons as the following:

  • A semiautomatic rifle with a detachable magazine of 21 or more rounds.
  • All semiautomatic shotguns with a folding stock or more than a six-round magazine.
  • Any firearm modified to operate as an assault weapon.

Besides banning the buying and selling of such weapons, the bill also includes a provision that would grant current owners of such weapons a “grace period” to turn in their guns before they would face fines and possible jail time. The restrictions in the bill would be in addition to current state law which already forbids anyone from possessing a sawed-off weapon, machine gun or military firearm.

The first session of the new state legislation begins on Jan. 10, but at the present, no hearings or other legislative activity are scheduled for this bill.

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SC State Lawmaker Requests Investigation of Hampton County Gun Range (December 27, 2022, 11:00am)

After complaints by local residents claiming stray rounds from the Maltese Arms Shooting Club & Range are damaging property in their neighborhood, SC State Senator Margie Bright Matthews (D – Distr. 45) has sent a letter to Hampton County Sheriff Thomas Smalls and Yemassee Police Chief Gregory Alexander, questioning why the agencies have done nothing to properly address residents’ concerns, and requesting a joint investigation of the situation by both law enforcement organizations.

The 50 page letter references a lawsuit filed by neighboring residents of the gun club, claiming that stray bullets are “constantly” damaging nearby residents’ property and putting the residents’ lives at risk. “It is very clear that this is a threat to the community and a safety issue that could potentially result in loss of a life,” Sen. Matthews claims in the letter. “I have many concerns regarding how this business was able to set itself up while it is located so closely to homes and a business in the area.”

Both the Yemassee Police Department and the Hampton County Sheriff’s Office have previously addressed residents’ concerns by noting that, from a jurisdictional standpoint, they can’t do anything because the gun range is inside Yemassee town limits, while the properties where the bullets allegedly land is outside of town limits in an unincorporated portion of Hampton County. Sen. Matthews, a Democrat whose District represents portions of Allendale, Beaufort, Charleston, Colleton, Hampton and Jasper Counties, questions these jurisdictional issues regarding the complaints of stray bullets, restating the concerns listed in the residents’ lawsuit, including the fact that the residential area was occupied for decades before the range was opened in 2017.

Further complicating matters is that it appears that the town of Yemassee moved to annex the shooting range property into its town limits in 2018, according to Sen. Matthews’ letter. This annexation occurred after residents laid out their concerns, saying they feared for their lives and wanted the range shut down, Sen. Matthews claims.

In a statement that correlates directly with the lawsuit documentation, Sen. Matthews’ letter also claims that, during the approval and construction process of the range in 2017, authorities did not follow a Hampton County land use ordinance in force at the time regarding land in the county’s General Development District, within which the gun range is alleged to have been located prior to the annexation, that prohibited the land from being used as a “Commercial or Club Outdoor Pistol, Rifle or Skeet Range”.

In addition to local agencies, Sen. Matthews sent copies of the letter to Chief Mark Keel of the South Carolina Law Enforcement Division, Robert Boyles with the South Carolina Department of Natural Resources, Matthew Gates with the South Carolina Attorney General’s Office, Yemassee Mayor Colin Moore, and Hampton County Council Chairman Charles Phillips.

The Hampton County Sheriff’s Office and Yemassee Police Department have not yet responded to requests for comment, but the Maltese Arms Shooting Club & Range has issued a statement noting safety measures undertaken by the Club, and welcoming Sen. Matthews to personally tour the facility.

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Oregon State Supreme Court Delays Implementation of “High-Capacity” Magazine Ban (Monday, December 12, 2022, 10:30am)

Amidst reports that many local sheriffs will not enforce the state’s recent voter-approved gun law banning the sale and transfer of “high-capacity” magazines that was set to take effect last week, the Oregon State Supreme Court has affirmed a temporary restraining order blocking the law from taking effect.

Oregon State Ballot Measure 114, which included the magazine ban and would establish state-level review, approval & licensing requirements for firearms purchases, was set to become law at 12:01 a.m., Thursday, Dec. 8, but the Oregon Supreme Court denied a state Department of Justice petition asking the court to throw out a lower court’s temporary restraining order, issued earlier in the week, that delayed the law’s implementation to allow time for a hearing on the matter. That hearing is scheduled to occur next week.

Oregon State Justice Department lawyers had filed a petition asking the Oregon Supreme Court to review the lower court’s ruling and vacate the decision. In response, lawyers for the gun rights group Gun Owners of America and the other plaintiffs said these new provisions present “several novel legal questions under Oregon law, the legality of which should be determined through the usual procedures including the development of a full and complete record in circuit court, an appeal to the Oregon Court of Appeals and, if this Court agrees to hear the case, a decision by this [Supreme] Court.”

The order from the state Supreme Court allowing the lower court’s ruling to stand is the culmination of a flurry of legal activity in the days leading up to the law’s Dec. 8 implementation date. Just hours before the state Supreme Court order was issued, a federal judge had denied a request for a temporary restraining order that also would have blocked the law. The federal judge eventually applied that ruling to all four federal lawsuits challenging the new restrictions.

These developments, including the apparent disagreement between the State and Federal Courts in Oregon on this issue, would appear to indicate that this issue will be subject to further court action in the near future.

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House Committee Advances Legislation to Create List to Control Gun Purchasing Rights (Monday, December 12, 2022, 10:00am)

Late last week, the House Judiciary Committee, in a party-line vote, approved legislation that would establish a federally controlled list of people who voluntarily agree to be blocked from purchasing firearms. The bill, proposed by Reps. Pramila Jayapal, (D-Wash.), and John Curtis, (R-Utah), would let anyone who fears they might take their own life with a gun to enroll themselves on a federal list of people who would then be blocked from buying a firearm.

The legislation requires the Attorney General to establish a list of people who agree to be blocked from buying a gun, which would be known as the “voluntary purchase delay database.” The bill also requires the AG to establish a process allowing people to have their names removed from the database – those requests must be fulfilled within 21 days and must be accompanied by a declaration from a mental health professional who says the requester poses no risk of self-harm.

But Republicans warned it would likely be very difficult to come off the list once someone is on it. “We know that’s going to be tough,” Jim Jordan (R-Ohio) said. “You can be assured that getting your name removed from the database will be as difficult as possible and will be a deterrent for anyone to put their name on the list to begin with.”

The Judiciary Committee’s approval of the bill leaves it in an uncertain state. The bill still needs to pass a vote by the entire House and be approved by the Senate, and it’s not clear that there is enough time for the House to clear the next hurdle before the end of the year and the establishment of a new Republican-controlled House in January.

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