The Mootness of New York State Rifle & Pistol Assn v City of New York

Solicitor General Noel Francisco

Solicitor General Noel Francisco (AP Photo/Andrew Harnik)

This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights. For a deeper dive into the topics discussed here, check out this week in gun rights at FPC

Supreme Court asks Solicitor General to weigh in on whether gun case is moot

On Friday, the Supreme Court requested the Solicitor General to submit his views on the mootness of New York State Rifle & Pistol Association v. New York City, a Second Amendment challenge pending before the Supreme Court that the city of New York has been desperately trying to wriggle its way out of since certiorari was granted. The City’s principal argument is that, because they changed the subject law, there is no case to hear. (Despite, of course, several doctrines preventing exactly this type of abuse from standing.)

Moments after the Court requested the Government’s brief, the Solicitor General submitted their letter brief. The filing, quite flatly, rejects the City’s mootness argument. This is only a brief, of course, not a binding opinion. It doesn’t foreclose the City’s argument. It does, though, make the City’s argument look weak.

gun blueprint

Courtesy Amazon

Federal Judge rules posting gun designs online is illegal

This is an exhausting one to cover. On Tuesday, a federal judge in Seattle ruled the release of 3D-printable gun designs online as “illegal,” bringing predictable praise from gun control activists. Blueprints for 3D-printed guns, we’re told, are “banned.” Yet just as before, anyone can get free gun designs from all over the internet.

This particular case is complicated, going all the way back to 2013 when so-called “ghost guns” (home-built firearms) made a tremendous stir in the US, with the Department of State threatening serious sanctions for anyone who posted gun blueprints online.

Was the government able to “stop the signal” and eliminate the trade of 3D printable guns in the US? Obviously not. The homemade gun community is as active as ever, with new designs coming out regularly. The crackdown on “ghost guns” is nothing more than a massive failure to censor people on the Internet and attack Second Amendment rights.

In 2015, Defense Distributed joined forces with Second Amendment Foundation, suing the government for knowingly violating its First, Second, and Fifth Amendment rights. The battle waged on for years, and the Department of State seemed to relent when they offered to settle the case in 2018.

Just before the settlement took effect, a group of state attorneys general sued to stop the feds from backing down. Their logic? If the feds allowed people to share designs online, irreparable harm would befall their states. 

The Western District of Washington bought this half-baked canard, putting the kibosh on the settlement. That’s where we are now, with a Seattle judge ruling that the Trump administration’s move to step aside and amend its regs to exclude this type of file violates the APA; in essence, the Court asserted and held that the administration is making a significant regulatory “change” tantamount to a change in law. 

This leaves out the minor detail that the government’s assertion that designs are ITAR-controlled “technical data” was conjured out of whole cloth in 2013, without any congressional notification or notice and comment. I guess you can have your cake and eat it, too… as long as you’re the government.

attorney general doj William Barr

Attorney General Barr William Barr (AP Photo/Jacquelyn Martin)

US DOJ rolls out gun violence prevention program

If that title didn’t make you nervous, I don’t know what will. On Wednesday, President Trump’s Attorney General, William Barr, announced an initiative they’ve dubbed “Project Guardian” to ramp up enforcement on gun background checks and beef up the NICS system.

The program will see prosecutors coordinate with state and local law enforcement to push stacking federal firearms charges on top of state law crimes whenever a suspect is arrested for committing any gun-related crime, including simple possession.

It will also direct officers of the ATF across the country to push for bringing charges against people they think lied while buying a gun at a dealer.

This might not seem like much, but it has the potential to present some serious issues. Simple possession charges are the most pernicious form of gun control, as it’s a victimless crime. With the vast array of federal gun crimes on the book, and with prosecutors already egregiously over-charging people, directing anxious feds with something to prove into affirmatively leveraging the system isn’t likely to lead to more  justice. It’s more likely to lead to additional charges being tacked on in flimsy cases.

Tacoma, WA rolls out tax on guns and ammo

On Tuesday, the Tacoma, Washington city council voted 8-0 in favor of new taxes on the sales of guns and ammunition in the city. After the 1st of July, 2020 consumers will pay $25 on each firearm purchase, 2 cents per round on rimfire ammunition .22 caliber and below, and 5 cents per round on all other ammunition. A tax on gun parts and accessories was left out.

Taxing gun ownership always feels like a signal that the privilege of owning a gun (as you surely wouldn’t tax a right) is something reserved to the upper echelons (i.e., “privileged”) of society. This isn’t a new thing either.

Gun owners have been subject to seldom-discussed, nonsensical excise taxes for years. Even progressive institutions have been critical of gun excise taxes.

To those who can afford a firearm in Tacoma, mind not the $25 tax on firearms, the 5 cents-per-round ammo tax is egregious. Many common handgun and defensive rifle cartridges cost from 15-25 cents per round. An extra 5 cents per round is pretty significant.

That’s $10 added to the cost of a 200-round trip to the range. This further burdens a fundamental right and will, perversely, encourage people to practice less. (But then again, that is their intent.)

Illinois FOID card

TTAG image courtesy John Boch

Illinois botches FOID card renewals

Illinois state police confirmed on Monday that “longstanding issues” surrounding the system that helps applicants renew their Firearm Owners Identification (FOID) cards had prevented people from renewing. From website crashes to inoperable phone lines, gun owners in Illinois were up the creek trying to maintain their ability to purchase arms and ammunition.

Not that the state could have foreseen a spike in demand and to shore up their system what with deer season opening, black Friday or anything. (Same thing with California’s ammo background check and “assault weapon” registration debacles.)

Events like this are just another reason burdening access to arms has more problems that at first meet the eye. Predicating the right to keep and bear arms on the state’s ability to run a system is a sure way to guarantee that innocent people will be short-shafted (or left to be felons). 

compact 1911s

Dan Z for TTAG

SCOTUS won’t block suit against Remington

The Supreme Court denied Remington’s petition for certiorari (review) on Tuesday, involving a lawsuit against Remington by the families of victims of the 2012 massacre at Sandy Hook. The Protection of Lawful Commerce in Arms Act (PLCAA) was passed to prevent state legislatures and judiciaries from torturing products liability law to hold arms manufacturers liable for criminal misuse of their products.

What’s important to understand here is that no liability has been found yet. It kind of seems that SCOTUS may have punted this case, expecting Remington to win at trial and the case to just “go away.”

That’s not a very principled stance, as Remington has to bear the cost of defending a ludicrous claim based on a tortured interpretation of law. If you want to learn more about this particular issue, FPC was part of a coalition brief with a group of law professors and scholars, check it out here.

comments

  1. avatar Made in America says:

    Think I saw this guy (shown on the FOID CARD) on a prison photo with a six digit number hanging from his neck. Could it be? Sure looks familiar.

    1. avatar Snowfake says:

      Are you some kind of emissary from the party of slavery?

  2. avatar I Haz A Question says:

    John, I thought Illinois’ FOID card was ruled unconstitutional sometime recently? Does anyone know the true status of this issue? I’m not finding reliably info on the Interwebz.

    Here in CA, we have to get a BFSC (Basic Firearms Safety Certificate) card before being deemed eligible to buy a gun. Mine expired long ago, though, so I’m not certain what the standards are in 2019 to get that card now.

    1. avatar Jay to the Jay says:

      — John, I thought Illinois’ FOID card was ruled unconstitutional sometime recently? Does anyone know the true status of this issue? I’m not finding reliably info on the Interwebz.

      All IL FOID cards are still mandated. The cases have not made it to the IL Supreme Court as of yet. If I remember correctly, First is the lady’s case in which it was ruled she did not require a FOID. That is being appealed by the state. Then there are a few others who are suing, stating that the FOID is Unconstitutional. All are pending IL Supreme Court hearings.

      Note: Wayne at the NRA pulled or canned the attorney from NRAILA who was helping with the case, due to believing that attorney was part of a coup against him. Not sure if we got any new help from them, but Gun Saves Lives and the ISRA are still on the case.

      If anyone has any newer info than that, please educate me.

    2. avatar Mark N. says:

      until the appeals are exhausted, you still need a FOID. Further, not having one not only precludes one from purchasing guns or ammo, it precludes on from possessing a firearm as well, as I understand the law.

  3. avatar 2aguy says:

    In Murdock v Pennsylvania, the Supreme Court already ruled that you cannot Tax the exercise of a Right…..someone needs to bring these Poll Taxes on guns to the Supreme court…after Trump appoints two more Justices to replace ginsburg and breyer and then one more to replace Justice Thomas when he decides to retire….. the democrats used Poll Taxes to keep Black Americans from exercising their right to vote, and now they are using Poll Taxes on guns to block the exercise of the 2nd Amendment…….

    1. avatar Timothy Toroian says:

      I see someone else reads “Heller” and/or “Supreme Court Gun Cases”.

    2. avatar Felix says:

      I remember some case which ruled taxes on corner newspaper vending machines was unconstitutional because it only targeted newspaper vending machines, and thus was a law against freedom of the press.

      I don’t see how any gun or ammo tax can be legal. Has no one challenged the federal excise tax? Maybe no one wants to rock the boat.

  4. avatar James Campbell says:

    Avatar test by THE REAL James Campbell!

    1. avatar James Campbell says:

      Ok TTAG, THE REAL James Campbell has the Orange Viper Time Attack Sig pic. Suck it Troll!

      1. avatar James Campbell says:

        P.S. Maybe we should have chosen a sports car that wasn’t discontinued due to lack of demand and sales.

    2. avatar James Campbell says:

      I didn’t realize we had a problem.

  5. avatar Dude says:

    “It’s more likely to lead to additional charges being tacked on in flimsy cases.”

    Like assault, attempted murder, drug deals, theft, burglary? Could you be more specific please?

    1. avatar Karl says:

      How justice is done is now is rarely build a case, bring it to a judge and get a trial by jury.

      It goes like this: find the person who probably did it, arrest them, charge them with everything they could possibly charge them with, then offer a plea deal. It doesn’t cost anything to drop charges later, and you can get charged for things that don’t make sense. I had a coworker get into a car accident, two people died, and got charged with two counts of vehicular homicide and two counts of vehicular manslaughter among anything else they thought they could tack on. How 2 = 2 + 2 baffles me.

  6. avatar Green Mtn. Boy says:

    The New York State Rifle & Pistol Assn v City of New York case is not moot because if the court rules such the Tyrants of NYC and state will change the infringements back to what they were prior.

  7. avatar Green Mtn. Boy says:

    “Federal Judge rules posting gun designs online is illegal”

    Judge Tranacus is Effing wrong,too late the train has left the station and what’s more Leftards will never stop the message nor the messenger .

  8. avatar M1Lou says:

    The ruling making posting gun designs online illegal shows that we have a great deal of people in government that lack a fundamental knowledge of how the internet works. They also fail to understand that is is a violation of the first amendment, not only the second amendment to attempt to ban plans, images, or instructions on how to build a firearm.

  9. avatar Ranger Rick says:

    Let me get this straight, you can’t post firearms designs on the internet but, you can sell them on the internet for 50 cents on a CD?

    1. avatar MyName says:

      This is precisely why you can’t stop the signal. So you can’t post firearms designs, let’s say they decide you can’t sell a CD of firearms designs. Well, you could advertise and sell a cd that has a recipe for scrambled eggs on it and, as a bonus, 350 firearms design schematics and 100 g-code samples for your entertainment or immediate implementation on your CNC machine plus a 200 page manual with instructions and tips – of course, that is all just random junk on the CD, the product is a recipe for scrambled eggs. Send $0.50 and your address to [email protected]

  10. avatar Geoff "Run, Bloomie, run!" PR says:

    In the letter to SCOTUS referred to :

    “Under those principles, this case remains live, because petitioners could still seek and a court could still award actual or nominal damages on account of the transport ban’s alleged violation of their Second Amendment rights. Petitioners have brought their lawsuit under 42 U.S.C. 1983, a statute that authorizes courts to award “damages * * * to compensate persons for injuries that are caused by the deprivation of [their] constitutional rights.””

    Why isn’t that line of logic pursued more?

    1. avatar Thomas says:

      IDK…maybe because our “freedom” becomes more of an illusion with every new law passed and every court decision rendered.

  11. avatar Jeff says:

    Can someone explain in more detail what the letter from the Solicitor General is trying to say in point 2(c)?

  12. avatar Minuteman says:

    After looking at that long list of government mandated infringements of our constitutional rights it is well apparent that we have crossed the threshold of no return. Progress is never stopped and these infringements will only grow worse till the time of revolution if that ever happens. The bad part is what if those in control win the war? Remember the South lost the 1st civil war.

    1. avatar Texican says:

      The South wouldn’t have lost if they hadn’t surrendered.

      1. avatar enuf says:

        The South wouldn’t have lost if they hadn’t surrendered……. after starting a war to keep slavery and no other reason and then being soundly beaten for their bad deeds ….

        But otherwise, you betcha’, the Confederate States wouldn’t have lost if only …

        1. avatar FedUp says:

          A war to keep slavery and no other reason…LOL.

        2. avatar Texican says:

          Dig deeper Enuf. The history books are written by the winners who just so happen to run the education system. Taxation without representation was the reason for the Civil War. Just like the Revolution. And Vietnam didn’t lose to us because they didn’t give up. And when we leave Afghanistan it’ll go back to the way it was. Try reading “The Real Lincoln” by Thomas Di Lorenzo. It was very eye opening for me.

  13. avatar strych9 says:

    “…in essence, the Court asserted and held that the administration is making a significant regulatory “change” tantamount to a change in law.”

    In essence or in ruling? Relevance vis a vis bumpstock regulation changes? (Ya know, exactly what numerous commentors here have noted about changing black letter law via regulatory definition?)

    1. avatar Mark N. says:

      Regulatory changes are subject to the provisions o the APA (Administrative Procedures Act), particularly snce regulations have the force of law. That means the change has to be published, followed by a public comment period, before a new regulation can take effect.

  14. avatar Rich says:

    Supreme Despots..
    The Odious Fiction Destroying America – The Doctrine of the Lesser Magistrates..
    We now have social transformation without representation. And that is what the Supreme Court is in our day – despots.
    And they are not the final arbiters – as Jefferson states, “The Constitution has erected no such single tribunal.”
    They proffer Article 6, paragraph 2 of the U.S. Constitution – the ‘supremacy clause’ – for their notion of judicial supremacy. But when you read Article 6, paragraph 2, you realize that the Supreme Court isn’t even mentioned, nor are federal courts of any kind mentioned. Article 6, paragraph 2 – known as the supremacy clause actually gives supremacy to the Constitution!
    Wholly opposite of this view of ‘judicial supremacy’ was the view held by America’s founders. They viewed the judiciary as being the weakest branch of the government.
    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.”

  15. avatar Rich says:

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  16. avatar Rich says:

    Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn’t count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn’t say “file a lawsuit in federal court.” Madison advised a refusal to cooperate with officers of the union. Don’t depend on politically connected lawyers to protect your right to keep and bear arms.
    http://blog.tenthamendmentcenter.com/2016/06/depending-on-federal-judges-to-protect-your-gun-rights-is-a-bad-plan/

  17. avatar Geoff says:

    Glad I live in a Free State where the only restrictions are no open carry (with exceptions) and a permit to carry concealed in public.

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