Appeals Court Overturns New York's Concealed Carry Signage and Social Media Rules

In a notable legal development, the Second Circuit Court of Appeals has invalidated certain aspects of New York's recent gun control laws enacted in response to the state's previous may-issue carry permitting system being declared unconstitutional. Among the overturned provisions is a unique signage requirement that presumed a ban on concealed carry in publicly accessible places unless property owners explicitly allowed it.

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This ruling comes as a result of several combined legal challenges, including objections to the law mandating that individuals seeking a carry permit provide access to their social media accounts. The court's decision, which spans 261 pages, addresses multiple cases but leaves other components of the Bruen response law intact.

The Second Amendment Foundation (SAF) played a pivotal role in two of the four cases addressed in the ruling, namely Hardaway v. Chiumento and Christian v. Chiumento. In the Christian case, the court found that the requirement for private property owners to post signs permitting concealed carry infringed upon the Second Amendment right to bear arms. Consequently, this signage rule, which carried a Class E felony penalty and could permanently revoke an individual's gun rights, was nullified.

The Hardaway case, which contested the prohibition of carrying firearms in places of worship, was rendered moot following a legislative amendment prompted by SAF's lawsuit. This amendment permits individuals, including plaintiff Jimmie Hardaway, to carry firearms in churches. The Firearms Policy Coalition also collaborated with SAF in these cases.

A significant victory for gun rights also emerged from the decision in a separate case not involving the SAF. The court invalidated the requirement for carry license applicants to grant government access to their private social media accounts.

Adam Kraut, SAF's Executive Director, described the outcome of the Christian case as a "small but significant victory," while Alan M. Gottlieb, founder and Executive Vice President of SAF, referred to these successes as examples of SAF's commitment to advancing firearms freedom through strategic litigation.

FPC WIN: In a 261-page opinion, the Second Circuit has struck down New York's social media disclosure requirement for carry permits, its default private property gun ban, and part of its church carry ban. https://t.co/Rk8WHlo2MI pic.twitter.com/7ZdKBsmrC1

— Firearms Policy Coalition (@gunpolicy) December 8, 2023

ESG Shareholders Prepare Legal Action Against Smith & Wesson for Producing and Selling M&P-15 Sport

Fox News reports that a faction of Smith & Wesson's shareholders, aligned with the environmental, social, and governance (ESG) movement, is preparing to sue the company over the sale of its M&P-15 rifle, a model similar to the AR-15. These shareholders, advocating for ESG principles that prioritize social responsibility and progressive values over profit, are focusing their efforts on gun control.

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The impending lawsuit alleges that Smith & Wesson has knowingly exposed itself to significant legal risks by manufacturing, marketing, and selling AR-15 style rifles and similar semiautomatic firearms, despite not violating any laws. The plaintiffs argue that the company's board of directors has neglected its fiduciary responsibilities to shareholders by overlooking potential liabilities and failing to exercise oversight over the production and marketing of these firearms.

Among the plaintiffs are the Adrian Dominican Sisters, guided by Sister Judy Byron, a prominent anti-gun advocate and member of the Interfaith Center on Corporate Responsibility (ICCR), a key player in the ESG movement. The ICCR, known for championing leftist causes in corporate governance, recently issued a statement co-authored by Sister Byron, criticizing the National Rifle Association (NRA) for impeding gun control legislation. The ICCR urges companies to take a stand against gun violence, including ceasing the production of AR-15s and other semiautomatic firearms.

The ICCR's statement emphasizes the moral and business imperatives for companies to distance themselves from gun violence. It advocates for corporate actions that could counter gun violence and promote safer communities, beyond relying on federal legislation.

“While we believe that sensible gun control legislation and enforcement is needed to help halt the wave of senseless gun tragedies, progress has been stalled at the federal level in large part due to an aggressive NRA lobby,” the ICCR statement said.

“Corporations, therefore, have an important role to play both to ensure that they are not indirectly complicit in these lethal events, and in advancing the solutions that may help prevent them,” the statement continues. “While the business case for companies to reduce their exposure to this issue is clear, the moral case for action grows more urgent each day. We therefore ask companies to carefully reflect on how their operations, business relationships, supply chain policies, marketing practices and public voices might be used to counter gun violence and foster safer communities.”

Some observers suggest that Sister Byron is leveraging the Adrian Dominican Sisters' financial resources to advance her anti-gun agenda. Her commitment to social justice and systemic change was highlighted in her comments following the Parkland shooting, indicating a desire to use the Sisters’ shares to influence corporate policies.

Despite this lawsuit involving some of Smith & Wesson's current shareholders, the majority of the company's investors have historically opposed the ICCR's demands. Past proposals at shareholder meetings to halt the sale of products like the M&P-15 Sport have been overwhelmingly defeated, with more than 73% of investors rejecting these initiatives.

ATF Withdraws Attempt to Revoke Florida Gun Store’s FFL Following Legal Action

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has withdrawn its attempt to revoke the federal firearms license (FFL) of Kiloton Tactical, LLC. This action came after Gun Owners of America (GOA) assisted the gun store in suing the government over President Joe Biden's zero-tolerance policy for minor infractions. The case, titled Kiloton Tactical, LLC v. ATF, has garnered attention as part of a broader conflict between the ATF and firearms dealers.

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An ATF inspector had seized Kiloton Tactical’s records, including its bound book and completed ATF Form 4473s containing customer information, which was a violation of federal law. The law stipulates that the seizure of such records requires copies to be provided to the licensee within a reasonable time.

The ATF's revocation effort was reportedly due to minor paperwork errors, reflecting the agency's increased pace in revoking FFLs under Biden's zero-tolerance policy. Many gun dealers believe this policy has led to an adversarial stance by the ATF against gun stores.

The ATF's decision to drop the revocation against Kiloton Tactical is seen by some as an attempt to avoid legal scrutiny over its zero-tolerance policy. This pattern of action was also observed in another case involving GOA, where the ATF reversed a revocation decision against Morehouse Enterprises after legal intervention.

Despite the renewal of Kiloton Tactical’s FFL and the withdrawal of the revocation threat, the plaintiffs are continuing their legal fight. They are seeking a preliminary injunction against the zero-tolerance policy. The ATF, however, argues that there is no longer a case for irreparable harm since the revocation threat is removed and claims the plaintiffs are challenging the Bureau’s authority to inspect and enforce regulations in gun stores.

The ATF suggests that Kiloton Tactical could have used the agency's administrative procedures to contest the revocation but chose to file a lawsuit instead. According to the ATF, "There is accordingly no license revocation to enjoin, nor any other imminent, irreparable harm to Kiloton that could justify a preliminary injunction.”

The court is set to decide on the preliminary injunction in the coming weeks. This lawsuit is one among several challenging President Biden's zero-tolerance policy, with another notable case led by Eric Blandford of IraqVeteran8888.

Fifth Circuit Court Rejects ATF's Appeal for Stay of District Court's FRT Injunction

 

In a series of legal setbacks for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the agency has faced another defeat regarding the regulation of forced reset triggers (FRTs). The dispute centered around the ATF's classification of the Rare Breed FRT-15 and similar devices as machine guns, which led to enforcement actions against owners of these triggers. The case, National Association for Gun Rights (NAGR) v. Merrick Garland, filed by Rare Breed Triggers and NAGR in a Texas Federal District Court, challenged this classification.

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Several individuals had faced charges under the National Firearms Act of 1934 for possessing FRTs, with potential penalties including up to ten years in prison and fines up to $250,000. However, Federal District Court Judge Reed O’Connor ruled in favor of the plaintiffs, granting a preliminary injunction and thereby halting the ATF's enforcement actions related to FRTs.

The ATF appealed this decision to the Fifth Circuit Court of Appeals, requesting a stay on the lower court's ruling. However, the Fifth Circuit Court denied the ATF's request, maintaining the injunction and thus preventing ATF enforcement actions on the Rare Breed FRT-15. The decision cited the defendants' failure to meet the criteria for a stay.

“Defendants have fallen short of meeting their burden to justify a stay pending appeal,” The Fifth Circuit Order reads. “Their motion to stay the district court’s preliminary injunction pending appeal is therefore DENIED.”

This ruling follows the Fifth Circuit's previous decision in the Cargill case, where it was determined that the ATF exceeded its authority in classifying bump stocks as machine guns. Similarly, in the current case, Judge O’Connor, supported by the Fifth Circuit, found that FRTs do not function as machine guns. The courts scrutinized the ATF's tests and arguments, concluding that FRTs require a reset of the trigger after each shot and do not operate as machine guns, which fire continuously when the trigger is held in the rearmost position.

“As the district court noted, it is undisputed that, ‘[w]hen firing multiple shots using an FRT, the trigger must still reset after each round is fired and must separately function to release the hammer by moving far enough to the rear in order to fire the next round.’ The district court evaluated the Defendants’ zip-tie test, which Defendants argue shows that FRTs fire like machine guns,” The Circuit Court’s decision reads. ‘In a machine gun,’ the district court explained, ‘the trigger must be held in its rearmost position for the gun to fire automatically.’ The district court found that, to the contrary, if the FRT trigger is constantly held in its most rearward position, ‘the weapon would malfunction and not fire subsequent shots.’ ‘Instead, the elasticity in the zip tie allows for sufficient movement to allow for a trigger reset.’”

The series of legal challenges and defeats for the ATF in Texas suggests a pattern of the agency's overreach in its regulatory actions. While the case is ongoing, the ATF faces an uphill battle, potentially needing to escalate the issue to the Supreme Court for a favorable outcome.

Court Declares Ban on Firearms Sales to Young Adults from FFLs Unconstitutional

 

A federal judge in the Northern District of West Virginia recently declared the law prohibiting 18 to 20-year-olds from purchasing handguns from federal firearms licensees (FFLs) unconstitutional. The case, titled Brown v. the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), was initiated in September 2022 by Steven Brown, Benjamin Weekley (both under 21), the Second Amendment Foundation (SAF), and the West Virginia Citizens Defense League (WVCDL).

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Under current legislation, individuals under 21 are barred from purchasing handguns from FFLs due to restrictions on undergoing the National Instant Criminal Background Check System (NICS) for handguns. This ruling comes in the wake of the Supreme Court’s Bruen decision, which ended the practice of "means-end scrutiny" and stated that the government can only use the original text, tradition, and history of the Second Amendment to evaluate a law's constitutionality.

Judge Thomas S. Kleeh’s ruling focused on defining "the people" as mentioned in the Second Amendment, concluding that it includes all law-abiding residents aged 18 and above. He noted that the Constitution specifies age requirements for certain positions like President but does not do so for the right to bear arms. The government’s attempt to argue for a different understanding of the "founding era" was dismissed by the judge, who considered the relevant period to be around 1791, the time of the Second Amendment's ratification.

The government's attempt to use the NRA v. Bondi case from the Eleventh Circuit Court of Appeals as a supporting argument was negated by Judge Kleeh. He pointed out that the Bondi decision was vacated following an en banc review, rendering it inapplicable as a precedent.

Additionally, the judge rejected the government's standing argument, which suggested that plaintiffs could still acquire guns through parental gifting, thereby not affecting their ability to possess firearms.

SAF and WVCDL expressed satisfaction with the judgment. SAF leadership emphasized the inconsistency in allowing 18-year-olds to serve in the military with firearms but not permitting them to purchase a handgun. They viewed the decision as a significant win for Second Amendment rights, especially for young adults.

The judge did not find a stay on his decision necessary, meaning the ruling is immediately effective for the plaintiffs and other eligible 18-20-year-olds. However, an appeal and request for an emergency stay by the government is anticipated.

This case marks another legal setback for the ATF, following a series of defeats in court over issues such as bump stocks, pistol braces, forced reset triggers, frames, receivers, and other matters.

ATF Breaches Consensual Schedule with Appeal Filing in Pistol Brace Lawsuit

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recently filed an appeal in a legal battle over its rule on pistol braces, defying an agreed timeline with Gun Owners of America (GOA) and other parties. This development follows a motion for summary judgment filed by GOA in the Texas v. ATF case, a collaborative effort between GOA, Gun Owners Foundation (GOF), and the state of Texas, aiming to overturn the ATF's pistol brace rule.

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The rule faced significant legal challenges, with Federal District Court Judge Drew Tipton issuing a preliminary injunction for GOA members, halting ATF enforcement actions. This decision paralleled the Mock v. Garland case in the Fifth Circuit Court of Appeals, which also blocked rule enforcement for Firearms Policy Coalition members. The Second Amendment Foundation achieved a similar injunction.

The Fifth Circuit Court later extended the injunction nationwide, effectively nullifying the ATF rule. Despite this, the ATF filed an appeal with the Fifth Circuit Court just a day before Texas and GOA's motion for summary judgment, a move seen by many as a delay tactic. Given the Fifth Circuit's history of rulings against the ATF, particularly concerning rule-making powers, the appeal is viewed skeptically.

The ATF has faced opposition in the Fifth Circuit before, notably in cases related to bump stocks, frames, and receivers, and the Mock v. Garland case, closely resembling Texas v. ATF. The consensus among GOA, GOF, and Texas is that the ATF’s appeal aims to delay inevitable defeat, as they anticipate another nationwide injunction against the pistol brace rule.

GOA's motion for summary judgment builds on their successful preliminary injunction, adding more evidence and substance. Given the Fifth Circuit's critical stance on the ATF's compliance with the Administrative Procedures Act, the ATF faces a challenging legal battle. The agency has experienced setbacks in various areas, including pistol braces, force reset triggers, and bump stocks. Their last resort may be the Supreme Court, but prospects for success in these legal challenges appear slim.

Maryland State Police Persist in Upholding Law Deemed Unconstitutional

 

Despite a recent ruling by the Fourth Circuit Court of Appeals declaring Maryland's Handgun Qualification License (HQL) law unconstitutional, the Maryland State Police have issued a directive to continue enforcing the law. The ruling came from a panel of three judges who scrutinized the HQL law, which mandates training, an application, a background check, and a fee for handgun purchasers.

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The case, Maryland Shall Issue, Inc. v. Wes Moore, challenged the HQL requirements, arguing that they violated the United States Constitution. This claim gained more ground following the U.S. Supreme Court's decision in NYPRA v. Bruen, where Associate Justice Clarence Thomas emphasized that firearm laws must align with the Second Amendment's text, tradition, and history. The government failed to present historical examples from the founding era that resembled Maryland's current HQL law.

The Fourth Circuit Court's decision highlighted the lack of historical precedent for such preemptive measures in firearm regulation. The court's opinion stated that Maryland's law, which delays handgun ownership for up to thirty days until state approval, does not align with the nation's traditional approach to firearm regulation. The ruling overturned the district court's previous decision.

However, the Maryland State Police's memo, issued on the same day as the court's opinion (November 21, 2023), clarified that the HQL law remains in force. The enforcement will continue until the court issues an official mandate, which, although expected, has not yet been released.

Maryland is anticipated to request an en banc hearing from the Fourth Circuit Court of Appeals. If granted, the entire bench of judges will reevaluate the case, potentially leading to the vacating of the current decision until the case is fully reviewed.

Colorado Federal Judge Suggests Buying a Gun Not Protected by Second Amendment

 

In a recent judicial decision, a Colorado federal judge declared that the Second Amendment does not encompass the right to purchase firearms. This pronouncement emerged from the Rocky Mountain Gun Owners v. Polis case, which questioned Colorado’s law imposing a three-day waiting period on firearm purchases. This ruling stands in contrast to the U.S. Supreme Court's broader interpretation of the Second Amendment, particularly as illustrated in the New York State Rifle & Pistol Association v. Bruen case.

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The Supreme Court in Bruen asserted that activities explicitly covered under the Second Amendment are presumptively protected, setting a precedent that challenges the validity of Colorado's waiting period law, as such laws were unfamiliar to the era when the Second Amendment was formulated.

Judge John L. Kane, who was appointed in 1977, reached a controversial conclusion in his ruling. He argued that the right to possess firearms, as recognized by the Supreme Court in the 2008 District of Columbia v. Heller case, does not inherently include the right to purchase them. He reasoned that while the Second Amendment doesn’t explicitly mention the purchase of guns, the First Amendment similarly doesn’t specify the purchase of newspapers, yet an implied right exists there.

Judge Kane also provided several alternative viewpoints to support the Colorado law. He suggested that the Founders did not envisage immediate availability of firearms, a point he tried to substantiate with expert testimony on historical firearm purchase conditions. However, the experts conceded that the difference in purchase convenience between then and now was more due to technological and logistical advancements rather than legislative intent.

Moreover, Kane cited the Heller case to argue that regulations on the commercial sale of firearms were "presumptively lawful." He differentiated between regulations on sellers versus purchasers, a distinction criticized as artificially separating the interconnected rights of buyers and sellers. Additionally, Kane drew parallels between laws regulating the use of firearms by intoxicated individuals and the waiting period, arguing both aimed to prevent impulsive misuse of firearms.

Despite these arguments, Judge Kane’s rationale has been scrutinized for potentially diverging from the historical approach mandated by the Supreme Court in the Bruen case. Critics argue that his interpretations could lead to misapplications of the Second Amendment, especially when considering modern technological and societal contexts. This ruling thus highlights the ongoing debate and complexities surrounding Second Amendment interpretations and gun control legislation.

Federal Appeals Court Overturns Maryland Handgun Purchase Law as Unconstitutional

 

In a landmark decision on November 21, 2023, the United States Court of Appeals for the Fourth Circuit found Maryland's recent handgun purchase law unconstitutional, as it unduly delays and complicates the legal acquisition of handguns. The court highlighted that the law, especially the 2016 add-on, impedes the Second Amendment right to obtain a handgun. The opinion states:

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"Before purchasing a handgun, additional preliminary steps must be taken: obtaining a ‘handgun qualification license’ requiring a background check, fingerprints, and a four-hour safety course with live firing. This additional license requirement, challenged by the plaintiffs, violates the Second Amendment as Maryland has not presented a historical justification for such a restriction. Consequently, we reverse the district court's decision and enjoin the enforcement of this law."

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The panel was divided, with two judges in favor of the majority opinion and one dissenting. The dissenting judge, Barbara Milano Keenan, argued that "infringe" implies total destruction, a contention that was refuted by Judge Richardson who referred to historical dictionary definitions that equate "infringe" with "hinder" or "obstruct for a time."

From footnote 8, page 11, Richardson clarifies: "Samuel Johnson and Noah Webster's dictionaries define 'infringe' as 'to destroy; to hinder,' with 'hinder' meaning 'to obstruct for a time.' This interpretation aligns with historical sources like St. George Tucker's Blackstone's Commentaries and the Nunn v. State ruling, emphasizing the unqualified nature of the right to keep and bear arms."

In contrast, Judge Keenan's dissent (footnote 9, page 36) interprets "infringe" as a total violation or destruction, suggesting a different understanding of the term within the Second Amendment.

The ruling opens the possibility for further appeals, including an en banc review by the Fourth Circuit or even a Supreme Court hearing. The decision emphasizes the ongoing debate over the interpretation of "shall not be infringed" within the Second Amendment, with contrasting views on the extent of governmental power in regulating firearms.

Connecticut Resident Receives Prison Sentence for Unlawful Production and Sale of AR15-Type Rifles

The content below is a direct press release from the ATF. As frequent readers of Gun Coyote News are aware, we maintain a specific position regarding this unaccountable Agency. We encourage our community to share their perspectives and engage in discussion by leaving comments below.

NEW HAVEN, Conn. — Vanessa Roberts Avery, U.S. Attorney for the District of Connecticut, announced that Gregory Leary, 35, of Wolcott, was sentenced today by U.S. District Judge Stefan R. Underhill in Bridgeport to 30 months of imprisonment, followed by 2 years of supervised release, for manufacturing and dealing AR-15-style firearms without a license. Judge Underhill also ordered Leary to pay a $2,000 fine.

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According to court documents and statements made in court, between January and March 2022, Leary received Polymer80 firearms kits from another individual and assembled them in the basement of his Wolcott residence. On three occasions during that period, Leary provided to that individual eight AR-15-style assault rifles with collapsible stocks and 30-round magazines; a “P80” 9mm semi-automatic handgun with a fully loaded, 10-round magazine; 190 rounds of .223 ammunition; one “Magtec” box containing 50 rounds of .40 caliber ammunition; and one “Independence” box containing 50 rounds of 9mm ammunition. The assault rifles and 9mm handgun contained no serial numbers.

Leary pleaded guilty on June 13 and admitted that he manufactured and dealt a total of more than 25 firearms to the same individual, knowing that the individual was selling the firearms to others.

This matter is being investigated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Connecticut State Police Statewide Firearms Trafficking Task Force and Statewide Urban Violence Cooperative Crime Control Task Force (Gangs Unit), assisted by the Statewide Narcotics Task Force Southwest and North Central Offices, and the Bridgeport, Shelton, Orange, Waterbury, and Hartford Police Departments.

This case is being prosecuted by Assistant U.S. Attorneys Tara E. Levens and Rahul Kale through Project Safe Neighborhoods (PSN), the centerpiece of the Department of Justice’s violent crime reduction efforts. PSN is an evidence-based program proven to be effective at reducing violent crime. Through PSN, a broad spectrum of stakeholders work together to identify the most pressing violent crime problems in the community and develop comprehensive solutions to address them. As part of this strategy, PSN focuses enforcement efforts on the most violent offenders and partners with locally based prevention and reentry programs for lasting reductions in crime.

Bureau of Alcohol, Tobacco, Firearms, and Explosives

ATF is the federal law enforcement agency responsible for investigating violations of the federal firearms and explosives laws and regulations. More information about ATF and its programs can be found at www.atf.gov.