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August 2024 Federal Court Round-Up
(Friday, Sept. 6, 2024 3:00pm)
This is a summary of Second Amendment-related Federal judicial actions that occurred in the past month. While none of the cases involved are directly related to South Carolina laws or regulations, they are of interest in that they indicate significant action relating to gun rights issues across the county.
Federal District Judge Temporarily Invalidates California Ban on Non-Resident Concealed Carry
In August, U.S. District Court Judge Sherilyn Peace Garnett granted in part a motion for preliminary injunction temporarily invalidating California’s residency requirement for the issuance of CCW licenses. Judge Garnett, a 2022 Biden appointee, ordered the main Defendants, the State of California and Los Angeles County Sheriff’s Department, to file a response in support of the State’s claim that the restriction is consistent with the Supreme Court’s Bruen test, specifically noting that “the State bears the burden of showing whether California’s residency requirements for a CCW license is ‘consistent with the Nation’s historical tradition of firearm regulation” and that “the State has not carried its burden at this stage to show that the limitation of CCW licenses to California residents is part of a historical tradition of this Nation.” Further action is expected once the Defendants submit their filing.
Federal District Judge in Kansas Appears to Invalidate Federal Restriction of Private Machine Gun Ownership
Also in August, a United States District Court I Kansas dismissed charges against a man for illegal possession of a machine gun citing the Constitution and Supreme Court precedent. Judge John W. Broomes issued a 10 page decision that referenced the plain text of the Second Amendment as well as the U.S. Supreme Court’s Bruen, Heller, and Rahimi decisions in dismissing the charges.
The case, US v. Morgan, involved a private citizen who was charged with two counts of possessing a machinegun in violation of 18 U.S.C. § 922(o), in this instance, an Anderson Manufacturing, model AM-15 in .300 caliber that was equipped with a so-called “Glock switch” which allows a firearm to fire as an automatic weapon. The court found that “the Second Amendment applies to the weapons charged because they are “bearable arms” within the original meaning of the [Second] Amendment.” Judge Broomes then goes on to determine that “the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation. Indeed, the government has barely tried to meet that burden. And the Supreme Court has indicated that the Bruen analysis is not merely a suggestion.” This last part brings into question whether some federal courts, under Bruen, may be ready to question whether certain restrictions contained in the National Firearms Act of 1934 (NFA) might not withstand the constitutional scrutiny of the Supreme Court’s “Bruen test.” However, it is also important to note that this was a federal district court opinion, which is the “lowest rung” on the federal judicial ladder and is still subject to at least two levels of review, which could find that there are some historic notions of regulation from the time of the founders that support such regulation.
Federal Court in Illinois Rules that State Ban on Licensed Concealed Carry Aboard Public Transit is Unconstitutional
A federal district court judge in Illinois has ruled that state’s ban on licensed concealed carry aboard public transit violates the Second Amendment. The case, Schoenthal v. Raoul, issued by U.S. District Judge Iain D. Johnston, in the Northern District of Illinois, Western Division, granted declaratory relief to four individual plaintiffs who brought the lawsuit in an effort to carry properly licensed concealed firearms on the trains and property of Chicago’s Metra commuter rail and Chicago Transit Authority (CTA).
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Federal Appeals Court Upholds Maryland’s “Assault Weapon” Ban (Saturday, August 10, 2024, 5:00pm)
Last week, the U.S. Court of Appeals for the 4th Circuit, which has appellate jurisdiction over the geographic area including South Carolina, in a split 10-5 en banc decision (meaning it was heard by the entire panel of all Appellate judges rather than the usual 3 judge panel), issued a ruling upholding Maryland’s 2013 law banning so-called “assault weapons.” In its ruling in the case of Bianchi v. Brown, the appeals court held that “assault weapons… fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense,” then went on to specifically note that the Constitution does not guarantee the right to “military-grade or gangster-style weapons.”
The majority opinion, written by Appeals Judge J. Harvie Wilkinson III, also stated “Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.”
Appeals Judge Julius N. Richardson, with four other judges joining, issued a dissenting opinion, stating: “The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges. Its mandate is absolute and, applied here, unequivocal… In holding otherwise, the majority grants states historically unprecedented leeway to trammel the constitutional liberties of their citizens.” The dissent also noted the majority opinion’s reliance on the emotional response to recent shooting incidents involving so-called “assault weapons” was in conflict with established constitutional law, since the Second Amendment does not let judges “balance away precious liberties for the sake of broader societal interests.”
Judge Richardson’s dissent went on to state that “self-defense can be individual or collective. And the Second Amendment expressly ensures that the people can preserve ‘the security of a free State’… should their government ever threaten their inviolable liberties. Individual and communal self-defense against both foreign and domestic threats were thus the purposes enshrined in the Second Amendment.” He also added: “The Second Amendment was adopted to ensure that the people are equipped to protect themselves against both public and private violence. It is a weighty responsibility, undoubtedly, and one that other nations deem unworthy of entrusting to their citizens. Yet our system does so all the same. The Founders learned from experience that the people are most vulnerable to abuse when they lack the means to defend themselves, so they guaranteed that the people would always have adequate means to safeguard their liberties. Today, the majority disregards the Founders’ wisdom and replaces it with its own.”
While gun-control advocates applauded the decision, it was severely criticized by local and national Second Amendment Rights advocacy groups, some of which have already announced plans to support an appeal of the ruling to the U.S. Supreme Court.
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U.S. Court of Appeals Overturns Minnesota’s Concealed Carry Age Limitation (Thursday, July 18, 2024, 2:30pm)
Recently, a three-judge panel of the 8th U.S. Circuit Court of Appeals handed down a unanimous ruling that Minnesota’s ban on concealed carry by young adults between the ages of 18 and 20 years old is unconstitutional under the Second Amendment. In the case, Worth v. Jacobsen, Federal Circuit Judge Duane Benton, in finding the 21 years of age requirement for concealed carry unconstitutional, noted that notwithstanding that the right to keep and bear arms is a natural right and not merely a right granted by the Constitution, declared that “the Second Amendment’s plain text does not have an age limit” and that “[o]rdinary, law-abiding 18 to 20-year-old Minnesotans are unambiguously members of the people” to whom this right applies, implicitly applying the “Bruen” standard to the state’s attempt to infringe upon its citizens’ right to keep and bear arms.
The state of Minnesota has not yet announced whether it will appeal the decision to the U.S. Supreme Court, but if it does file an appeal, and the Supreme Court decides to hear it, briefs won’t be filed and arguments won’t occur until late 2024 at the earliest, after the Court starts its next term in October 2024.
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Lawsuit Challenging California 11% Excise Tax on Firearms & Ammunition Filed in State Court (Saturday, July 6, 2024, 6:00pm)
A lawsuit seeking to overturn California’s recently adopted 11% excise tax on the sale of firearms, gun parts and ammunition was recently filed in Superior Court in San Diego. The plaintiffs in the case, which include private citizens and a number of Second Amendment advocacy groups, are challenging the constitutionality of the tax, contending that since the tax constitutes a restriction on the free exercise of Second Amendment rights, it is subject to the Supreme Court’s 2022 “Bruen Test”, and, since there is no analogous evidence that such a tax was ever in effect at the time the Constitution and Bill of Rights were ratified, the state excise tax is unconstitutional.
The lawsuit specifically requests that the court declare that the excise tax on firearms and ammunition violates the Second Amendment, and to permanently enjoin the state from enforcing the provisions of AB 28, the legislation that enacted the tax, including collection of the tax and the assessment of penalties for non-payment of the tax. The lawsuit also seeks to recover court costs, including attorneys’ fees, from the State.
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U.S. Supreme Court Upholds Federal Law Prohibiting People Subject to Restraining Orders from Possessing Firearms (Friday, June 28, 2024, 2:00pm)
Late last week, the U.S. Supreme Court issued a decision in United States v. Rahimi upholding a federal law that prohibits people subject to domestic violence restraining orders from possessing firearms. The Court, in an 8-1 vote, ruled in favor of the Biden administration, which was seeking to have the law remain in place.
Writing for the majority, Chief Justice John Roberts wrote that since the time the United States was founded “our nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” The provision at issue in the case “fits comfortably within this tradition,” he added. In reaching its conclusion, the Court did not embrace some of the arguments made by the Department of Justice in defense of the law, including that the government can disarm people who are not “responsible.”
Justice Clarence Thomas dissented, arguing that the 2022 Bruen decision, in which the Court determined that gun restrictions had to be analyzed based on a narrow historical understanding of the 2nd Amendment, requiring review of the history of similar laws in place at the time the Constitution was adopted, and that “not a single historical regulation justifies the statute at issue.”
This ruling, while technically only limited to the federal statute under which people subject to domestic-violence restraining orders can be restricted from possessing firearms, may also indicate that, in certain instances, the Supreme Court may not view the Bruen standard as only limited to actual laws on the books in the U.S. in the late 18th Century, but that the Bruen test may also include legal concepts indicated by the types of laws that were at play (i.e. those designed for public protection) at the time.
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U.S. Supreme Court Overturns ATF “Bump Stock” Ban (Friday, June 14, 2024, 12:00pm)
The Supreme Court ruled today that a federal ban on “bump stocks” is unlawful. In a 6-3 ruling, the Court held that 1934 National Firearms Act (NFA), which regulates the availability of machine guns, cannot legitimately be interpreted to include bump stocks. Writing for the majority, Justice Clarence Thomas said that a firearm equipped with the accessory does not meet the definition of “machine gun” under federal law and rejected the argument that the 1968 Gun Control Act, which broadened the regulation of “machine guns” to include accessories “for use in converting a weapon” into a machine gun, created sufficient authority for the ATF to conclude that bump stock-equipped semi-automatic weapons were within the 1934 definition of “machine gun.”
Much of the case hinged on the definition of “machine gun” as a weapon that can automatically fire more than one shot “by a single function of the trigger.” The government argued that the phrase refers to the actions of the shooter, with a single action required to fire multiple shots. The plaintiff’s lawyers argued that it refers to the action inside the firearm when the trigger is engaged. Because a bump stock still requires the trigger to be engaged for each shot, it is not a machine gun, they argued. The Supreme Court agreed with plaintiff’s argument, with Justice Thomas writing that a firearm equipped with a bump stock does not become a machine gun because “it cannot fire more than one shot” with a single function of the trigger and concluding “ATF therefore exceeded its statutory authority by issuing a rule that classifies bump stocks as machine guns”.
Since this Supreme Court decision leaves no further avenue of appeal, this case is concluded. But there is some speculation that the Biden Administration may attempt another regulatory rulemaking to address the bump-stock “issue.”
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U.S. Supreme Court Declines to Hear Appeal of Maryland “Assault Weapons” Ban (Wednesday, May 22, 2024, 3:00pm)
The United States Supreme Court on Monday, without comment, declined to hear an appeal of a lower court ruling which upheld the Maryland law banning certain semi-automatic firearms commonly referred to as “assault weapons.”
The plaintiffs in the case had sought Supreme Court review because they believed the lower appellate court, the 4th Circuit Court of Appeals, was taking too long in considering their appeal of a lower District Court opinion upholding the Maryland state-wide ban, and that the 4th Circuit’s unusual move of removing the case from the usual three-judge panel and instead moving it directly to “en banc” full court review without the usual 3 judge review was suspect and therefore warranted Supreme Court intervention. The defendants, the State of Maryland, argued that the 4th Circuit should be allowed to issue a decision prior to Supreme Court review.
The Supreme Court currently is also considering whether to hear an appeal of a decision from a different federal appeals court which upheld a similar firearm ban issued by an Illinois municipality, so it is also possible that the Supreme Court is waiting for all pending appeals to issue final decisions on these kinds of bans so that they can be consolidated and decided together by the Supreme Court.
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U.S. Supreme Court Agrees to Hear Case on ATF “Ghost Gun” Regulation (Monday Apr. 22, 2024,1:00pm)
The U.S. Supreme Court has agreed to hear a case regarding the legality of the Bureau of Alcohol, Tobacco, Firearms & Explosives’ (ATF’s) published regulations on so-called “ghost guns.”
The regulation, which took effect in 2022, changed the definition of a firearm under federal law to include unfinished parts, like the frame of a handgun or the receiver of a long gun. Under the regulation, those parts must be licensed and include serial numbers so they can be “more easily tracked.” Manufacturers must also run background checks before a sale of these parts, as they do with commercially made firearms. Under the regulation, these requirements apply regardless of how the firearm was made, meaning it includes firearms made from individual parts, kits, or by 3D printers.
The Supreme Court decided to hear the case on an appeal filed by the ATF and U.S. Justice Department (DOJ) from rulings by lower courts that the Biden administration executive agency had exceeded its constitutional authority by effectively enacting new law by issuing the regulation, and the authority to make new law is expressly reserved to the legislative branch. In the previous legal actions which ATF & DOJ are appealing, a U.S. District Court in Texas struck down the rule, noting that the definition of a firearm in federal law does not cover all the parts of a gun, and that only Congress can change an existing law. A panel of the 5th U.S. Circuit Court of Appeals subsequently upheld these conclusions of the District Court’s ruling.
The Supreme Court has previously ruled to keep the regulation in effect during the lower court legal fight, by a vote of 5-4, and has not re-visited this part of the ruling in its decision to hear the appeal, meaning that the regulation will remain in effect while the lawsuit continues.
Arguments on this appeal aren’t anticipated to take place before the autumn 2024.
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U.S. Federal Court Enjoins ATF from Enforcing “Pistol Brace Rule” Against NRA Members (Wednesday, Apr. 3, 2024, 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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