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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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U.S. DOJ & ATF Announce Propose Rule to Close So-Called “Gun Show Loophole” (Thursday, August 31, 2023, 3:45pm)
The Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) and the U.S. Department of Justice (“DOJ”) today announced a proposed regulation to expand the definition of firearms dealers who are required to obtain a federal license and conduct background checks for gun sales. The proposed rule would require sellers to obtain a federal license if they “devote time, attention, and labor to dealing in firearms,” not just those who earn a “livelihood” from such sales.
ATF Director Steven Dettelbach claims the rule is aimed at “[a]n increasing number of individuals engaged in the business of selling firearms for profit have chosen not to register as federal firearms licensees, as required by law, [and instead] have sought to make money through the off-book, illicit sale of firearms.” However, the change in definition appears to also include individuals who are not in the business of selling firearms, but who occasionally make private sales at gun shows or through online gun brokerage websites. Accordingly, until the actual regulation is published in the federal Register for public comment, it is unclear how broad or vague the language of the rule will be, and exactly what kind of part-time or occasional sellers will have to register and conduct background check(s) for each gun sale.
The next step for this regulation will be publication in the Federal Register, with a 90 day public comment period before it is finalized. DOJ officials did not give a specific date as to when they anticipate it being published. Although it is highly likely that any resulting Final Rule will face legal challenges, it is unlikely that will occur until after the notice and finalization process is complete.
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U.S. Supreme Court Issues Ruling Reinstating ATF Gun Parts Regulation (Monday, August 14, 2023, 3:30pm)
Last week, the U.S. Supreme Court issued an order that effectively reinstated a regulation by the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) restricting the transfer of firearms components that AFT deemed could be used to manufacture so-called “ghost guns.”
In a 5-4 vote, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett joining the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to form a majority, the Court ordered that a July decision on this matter by U.S. District Judge Reed O’Connor in Fort Worth, Texas be vacated. That District Court ruling had effectively created a nationwide block on the enforcement of the 2022 ATF rule, pending an appeal of a related District Court decision that ruled that the ATF had exceeded its authority in issuing the regulation.
The ATF regulation in question had “clarified” the definition of “firearm” under the federal Gun Control Act of 1968 to include parts and kits that may be readily turned into a gun. It required serial numbers on such parts and that manufacturers and sellers of them be licensed. The regulation also required sellers to run background checks on purchasers of such parts prior to their sale.
Following Judge O’Connor’s decision, the U.S. Department of Justice (“DOJ”) appealed to the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, where a three-judge panel refused to stay key aspects of Judge O’Connor’s ruling. In response, DOJ appealed to the Supreme Court.
Conservative Justice Samuel Alito, who handles emergency matters arising from a group of states including Texas, issued a “show cause” notice in late July for interested parties to explain why the injunction against the ATF rule should or should not remain in force pending appeal by the ATF.
In response, the DOJ argued that the Supreme Court should stay O’Connor’s ruling while it appeals to the New Orleans-based 5th U.S. Circuit Court of Appeals because allowing the District Court ruling to stand while waiting for the appeal to be resolved would enable an “irreversible flow of large numbers of untraceable ghost guns into our nation’s communities.”
The Supreme Court’s decision gave no reasons for the ruling, which is typical when the Justices act on emergency applications. The order is provisional, leaving the regulation in place only while a challenge moves forward in the U.S. Court of Appeals.
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Biden Administration Confirms It is Withholding School Funding for Hunting and Archery Programs to Further Its Gun Control Policies (Tuesday, August 1, 2023, 2:00pm)
It is being reported that the Biden Administration has confirmed that it is utilizing its education policy to further its gun control agenda by withholding funds from elementary and secondary schools nationwide that have hunting or archery programs in their curriculum. The federal Department of Education has issued a statement that its funding decisions were based on interpretation of the Bipartisan Safer Communities Act (BSCA), which Congress passed, and President Biden signed last year, as a reaction to some highly publicized shootings.
The agency’s interpretation means funding for shooting sport activities earmarked under the Elementary and Secondary Education Act (ESEA) of 1965 will be blocked across the country. A Department of Education spokesperson has stated that this prohibition, which went into effect on June 25, 2022, applies to all existing and future awards under all ESEA programs, including funds earmarked for 21st Century Community Learning Centers.
Representatives of hunting, shooting sports, and Second Amendment advocacy organizations are being vocal in their opposition to the administration’s decision, which may impact thousands of schools and millions of American students. The president of the National Archery in the Schools Program, a program that involves approximately 1.3 million students from nearly 9,000 schools across 49 states, has said that some of those schools have already canceled plans to include archery or hunting education courses in their curriculum due to the federal guidance. Likewise, the International Hunter Education Association, whose courses train and certify more than 500,000 students annually, says that its safety courses, which are a reason hunting related injury rates have declined for years, is concerned by the ramifications of this action by the Department of Education. Safari Club International, National Shooting Sports Foundation, and National Rifle Association also have criticized the Education Department announcement.
U.S. Congressman have also issued statements opposing withholding of the funds. Rep. Dan Bishop (R-NC) has called the move by the Biden administration “shameful, but not at all surprising,” adding that the Biden administration “will take any opportunity to stomp on your constitutional rights — even down to teaching kids archery and hunting skills.”
Rep. Tom Tiffany (R-WI) took to social media, “tweeting” that “[t]he Biden administration is DEFUNDING school hunting and archery programs. Yes, you read that right — DEFUNDING them. Wisconsin students should not be pawns in Joe Biden’s misguided crusade against America’s sportsmen.”
Likewise, Rep. Doug LaMalfa (R-CA) said that “[e]njoying the outdoors is a wonderful activity and interest in hunting, fishing, camping, and other such activities should be encouraged and cultivated from a young age — withholding authorized funding is ridiculous.”
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U.S. Supreme Court to Weigh In on District Court Ruling That Overturned ATF Rule Declaring Gun Parts to be Firearms (Friday, July 28, 2023, 5:00pm)
In the wake of rulings in late June & early July by the U.S. District Court for the Northern District of Texas that invalidated a regulation issued by the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) which deemed gun parts that are sold for the purpose of building a firearm (i.e. “kit guns”) as themselves firearms and therefore subject to various federal statutes and ATF regulations as such, the U.S. Supreme Court has stayed that decision and has requested interested parties present the Supreme Court with arguments pertaining to the case. In an Order issued earlier today by Justice Alito, the Supreme Court stayed the District Court ruling until 5 p.m. (EDT) on Friday, August 4, 2023, and ordered that any filings in the matter be submitted on or before 5 p.m. (EDT) on Wednesday, August 2, 2023.
Several Second Amendment advocacy organizations, including the Second Amendment Foundation (SAF), have indicated an intention to submit responses before the filing deadline in support of upholding the District Court opinion, in which the court determined that the ATF regulation in essence changed the definition of “firearm” and that only Congress has the authority to alter any of the terms defined in the controlling federal legislation.
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Resolution to Enjoin ATF from Enforcing Pistol Brace Rule Passes in U.S. House of Representatives (Friday, June 16, 2023, 7:00pm)
Earlier this week, the U.S. House of Representatives voted 219-210 to approve a Joint Resolution (H.J.Res. 44) that would disallow the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) from enforcing its recently issued rule that categorized pistols equipped with bracing devices as short barrel rifles subject to the registration & taxation requirements of the National Firearm Act (NFA). For the time being, this does not effectively fully nullify the ATF requirements — for that, Senate approval is still required. To this end, the Resolution has been officially sent to that chamber, where it was placed on the Senate’s Legislative Calendar for further action.
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U.S. Congress Scheduled to Vote this Week on Resolution to Overturn ATF Pistol Brace Rule (Monday, June 12, 2023, 1:00pm)
The U.S. House is expected to hold a vote this week on House Joint Resolution 44, legislation that would overturn the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) pistol brace rule. H.J.Res.44, sponsored by Rep. Andrew Clyde (R-GA) and Rep. Richard Hudson (R-NC), is a disapproval resolution under the Congressional Review Act (CRA) that would invalidate ATF’s brace rule and block the agency from reissuing the same rule in the future.
This means that there is still time for MCRC members, if so inclined, to contact your Congressional Representatives and respectfully let them know your position on this issue and encourage them to vote accordingly.
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U.S. Supreme Court Declines to Issue Temporary Stay of Illinois “Assault Weapon” and “High-Capacity Magazine” Bans (Wednesday, May 17, 2023, 9:00pm)
Earlier today, the U.S. Supreme Court denied a request from gun rights groups to temporarily block laws in Illinois that ban the sale of certain semi-automatic rifles and so-called “high-capacity” magazines, meaning those prohibitions will remain in effect in Illinois for the time being.
The Court issued a one-sentence order that did not explain its reasoning and noted no dissents, which is common for cases on its emergency docket, where cases arrive when the Supreme Court is asked to render decisions about whether to temporarily allow or halt enforcement of laws while the underlying dispute plays out in lower federal courts.
A U.S. District Court in Illinois had earlier ruled in favor of the Illinois state ban and a similar city ordinance from Napierville, IL, in February 2023. Then, in April, the Chicago-based U.S. Court of Appeals for the 7th Circuit denied a request to temporarily block the laws while that District Court decision is appealed. The Supreme Court’s decision not to intervene means that the bans will remain in legal effect pending the resolution of the appeal by the 7th Circuit.
This case, National Association for Gun Rights v. City of Naperville, will now continue in the appeals court and will likely eventually make its way back to the Supreme Court on the merits at some point in the future.
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Gov. McMaster Extends SC Legislative Session, Pending Permitless Open/Concealed Carry Bill Still on the Agenda (Tuesday, May 16, 2023, 5:00pm)
The 2023 South Carolina General Assembly came to a close last week, but Governor McMaster has called the State Legislature back to session so they can discuss and address certain matters, primarily focusing on non-2nd Amendment-related abortion and drug trafficking (fentanyl) bills, but also pertaining to pending legislation regarding “felons in possession”, by which he apparently means S.109 and H.3594, the state Senate and House bills addressing permitless open & concealed carry, both of which reference and address the issue of felons in illegal possession of firearms.
Some “in-the-know” observers, including the NRA’s grass-roots coordinator for the part of the Southeast U.S. that includes South Carolina, have noted that the Governor’s actions seem directed mainly at the non-2nd Amendment issues, and, if the abortion- and drug-related legislation pass before S.109 or H.3594 receive floor votes, the extended 2023 legislative session might end without final passage of the permitless carry bill.
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SC Senate Judiciary Passes Bill to Allow Permitless Open & Concealed Carry (Wednesday, May 10, 2023, 3:00pm)
In an unexpected move, yesterday the Judiciary Committee of the South Carolina Senate held a vote on S.109, the Senate version of the “Constitutional Carry” bill which would allow open and concealed carry of firearms without a permit within the state. The Bill passed by a vote of 12-11. The version that was voted out of Committee contains the NRA-backed language which would still retain the existing carry permit system, meaning that it would not affect any such currently valid permits that were issued under the existing system, which would allow for reciprocity in other states that require non-citizens of those states to hold a valid concealed carry permit in their home state in order to carry in their state.
The Bill has now been sent to the Senate floor for further consideration and an eventual vote by the entire Senate. If passed by the full Senate, the next step would be a reconciliation of the House and Senate versions of the bills as passed, and then a final vote in both chambers on the reconciled language.
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