This week in gun rights – August 21, 2020

Matthew Larosiere is the Director of Legal Policy at Firearms Policy Coalition. You can connect with him on Twitter @MattLaAtLaw.

Defense Distributed to get its day in court in suit against New Jersey AG; Court to hear age-based gun ban case; PSA’s oopsie and the California mag ban; New York shenanigans; State legislator considers suing City of Chicago over civil rights violation; NC cops confused they need to respect rights before conducting search; Canadian gov’t taking bids for its gun “buyback” program.

Defense Distributed to get its day in court in suit against New Jersey AG

Like some sort of rascally rabbit, New Jersey Attorney General Grubir Grewal attempted to weasel his way out of the jurisdiction of the federal court in Texas where Defense Distributed brought suit against him. But that win was short-lived. As it turns out, the federal appeals court of the Fifth Circuit reversed the lower court’s determination, and Grewal is in fact subject to the lower court’s jurisdiction. In this important First and Second Amendment matter, Defense Distributed is going to get its day in court. Finally.

If you’re unfamiliar with Defense Distributed v. Grewal, it’s a case about gun rights and the First Amendment. Specifically, Defense Distributed was blocked by New Jersey from distributing its 3D-printed gun files within the state and to its residents. In the infinite wisdom of the New Jersey Legislature, it apparently seemed like a good idea to block the flow of ideas and to stifle the state’s own economy (they could’ve probably taxed the sale of these files and trust me, they could use the money). But nobody ever accused these people of being smart, and being the overzealous top cop that he is, Grewal sent Defense Distributed a cease and desist letter to drive the point home.

Speech and freedom of the press are treasured and constitutionally protected concepts. We no longer use the Gutenberg press; we send emails. While the courts have continued to apply constitutional protections to modern technology - for example, the government needs a warrant to directly access your cell phone data - it seems that state and many federal lawmakers can’t take a hint. Just because you don’t like a particular type of speech doesn’t mean you can restrict it based on content. This applies to CAD and 3D gun files because they are code, and code is free speech, but it seems that A.G. Grewal wants to learn the hard way.

Court to hear age-based gun ban case

A 17-year old can enlist in the military, stand armed watch, serve in a combat zone, and die for his or her country, but for some reason an 18 year old can’t buy a handgun from a federally licensed dealer and in some states, can’t buy a handgun or rifle until they’re 21. The hypocrisy of this situation is shocking, but anti-gun politicians are either willfully ignorant or just don’t care. That’s why we and other gun rights organizations are challenging these laws in the courts.

The current case is in a federal court in Washington, where plaintiffs are challenging the state’s Initiative 1639, which prevents legal adults from obtaining semiautomatic rifles before the age of 21. I-1639 was a knee-jerk reaction to the incident in Parkland, Florida. As we’ve previously explained, bans on semiautomatic rifle possession, which are premised on the idea of preventing mass shootings, are irrational because the odds of being murdered in a mass shooting are about 1 in 11.6 million. The judge, who appears to be genuinely neutral on the issue, explained that the plaintiffs are facing an uphill battle in overturning the law, but we might add that if the Heller “history, text and tradition” standard of constitutional analysis were applied to this gun law, there would be no historical or traditional support for an age-based ban on gun possession when it’s applied to legal adults. Hopefully the judge and, inevitably when the decision is appealed, the 9th Circuit, figures it out. 

PSA’s oopsie and the California Mag Ban

Reports are indicating that Palmetto State Armory may have inadvertently leaked the identities of 486 people who bought magazines following the 9th Circuit’s striking down of the California magazine capacity law. According to one of those buyers, the company sent out an order status update and plugged all the buyers’ names into the CC line instead of the BCC line, which means they all have each others’ contact information. What does that mean? If the California DOJ gets a hold of one of those contacts, it could spell trouble for all the buyers.

We celebrated the 9th Circuit’s decision on the magazine ban because the outcome was correct, but the reality of the situation is complicated. The lower court hasn’t yet issued a stay on enforcement of the California law, which leaves anybody who tries to buy one of these magazines exposed to potential criminal liability. The other problem is that the state will almost certainly file a petition for what’s called hearing “en banc,” which is composed of a panel of several more circuit court judges. Given the 9th Circuit’s general anti-2A bias, this panel could possibly overturn the decision. 

New York gun shenanigans: politicians wants gun makers to pay for the acts of criminals and mandate gun owner insurance, and an upstanding citizen designs a database    exposing NYC’s crooked gun licensing practices

It seems nobody has asked New York State Senator Zellnor Myrie (D-Brooklyn) to take a seat so he can receive a very basic lesson on products liability. We don’t hold companies liable when their products are misused by third parties to commit crimes. Let’s run through more examples: if someone uses a lighter to burn down a building, do you sue Zippo? If someone uses rat poison to poison their spouse, do you sue the pest control company? No, of course not; in fact, you’d have to be an absolute moonbat to believe that people should be able to. Anyway, Senator Myrie wants to hold gun manufacturers responsible for the rise in the city’s shootings over the last couple months, and he claims that “Every illegal gun on the street was a legally purchased gun at one time.” Before you try suing Heckler & Koch, maybe you should ask yourself if your time wouldn’t be better spent ending the state’s war on drugs and addressing the socioeconomic factors that contributed to this problem in the first place.

Another group of absolute nuts want to require all New York gun owners to keep $250,000 worth of insurance. That’s pretty rich considering the state banned the NRA’s “carry guard” firearms insurance plans. What seems likely here is that they’re trying to make gun ownership unaffordable for everyone except the state’s elites, which at least aligns with the NYPD Licensing Division’s policy of accepting bribes and giving preferential treatment to VIPs. In case you’d like to know more about NYC’s crooked licensing scheme, Rob (Twitter: @2Aupdates) has been courteous enough to build a spreadsheet of related state and federal court cases. If you’re a law and policy nerd like me, it’s a pretty interesting read and I recommend you check it out.

State legislator considers suing City of Chicago over civil rights violation

Curtis Tarver was driving in his district in Chicago when he was pulled over by the police for a burned out headlight. The encounter seemed innocent enough until Tarver, a black state congressman, was asked whether he had a firearm in his car. Considering that a vehicle equipment malfunction isn’t sufficient cause to harass a driver about whether or not they have a gun, the question was out of line. Nonetheless, Tarver informed the officer he had a gun, and the officer asked him to hand it over. The police checked his firearms owner identification card against the database, which showed the card as revoked or expired. The officer was aware that Tarver was a state congressman, but arrested him anyway, leaving him tightly handcuffed at the police station, unable to make a phone call, and unable to use the bathroom for seven hours. 

The activity of the police was suspect to say the least; it’s almost as though they used the equipment malfunction as pretext to conjure up another legal violation. The thing is, Representative Tarver wasn’t in violation of the law - the Illinois State Police issued emergency guidelines extending the validity of FOIDs for the duration of the COVID-19 epidemic and up to a year after. Fortunately the prosecutor saw the error of his ways and has dropped the charges, but there was no justification for arrest, so Representative Tarver is mulling over suing the City of Chicago. I think these types of transgressions should have consequences for the government, at least to reduce the odds that this happens to other law-abiding people going forward.

NC cops confused they need to respect rights before conducting search

Greensboro, North Carolina police are up in arms about a new policy requiring them to receive written consent to conduct searches. In a letter to the city, the attorney for the Greensboro Police Officers Association said that the written consent requirement “will increase crime and endanger the community. The experience, research and actual evidence from agencies around the country who have attempted to implement a written consent to search policy has already proven that this type of policy restricts the ability of police officers’ to address emergent crime by decreasing the large quantity of illegal firearms that are regularly seized during lawful, consensual searches.” 

Simple possession of firearms doesn’t endanger communities, it’s their involvement in violent crime that does. If the searches the officers would conduct “lawfully and consensually” are in fact, both lawful and consensual, then requiring the people subject to those searches to give written consent should have no impact on the amount of so-called “illegal firearms” that are being regularly seized. People are often bullied into “consenting” to searches that wouldn’t otherwise be constitutional. It seems this policy could only affect those fringe cases.

Canadian gov’t taking bids for its gun “buyback” program

It shouldn’t be a surprise that the Canadian government is trying to outsource its task of designing a “buyback” program to seize guns that wound up on Prime Minister Trudeau’s ban list back in May. Fifteen firms are being courted for the design contract, which means there are fifteen private businesses that want to take the right to keep and bear arms from our northern neighbors. Harrowing.