This week: SG Noel Francisco tells Supreme Court NYSRPA v. NYC isn't moot; Rep. Bass uses Santa Clarita murder to push gun control agenda; more 3D gun speech drama in Washington; scary new US DOJ gun control policies; and more...
Matthew Larosiere is the Director of Legal Policy at Firearms Policy Coalition. You can connect with him on Twitter @MattLaAtLaw.
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.
Murders in Santa Clarita, California
This piece of news, we’ve all heard. A student in a southern California school murdered two of his classmates, injuring more, before turning the gun on himself in an attempted suicide. Despite the murders occurring in the patron state for gun control, and before the origins of the firearms used was known, we were told the answer is stricter gun control at the federal level.
Representative Karen Bass (D - CA 37), shortly after the shooting (and with no regard to whether the firearm came from within or from outside the state), said in a radio interview that the murders “just show that even when you do have strong gun laws, because laws are not uniform around the country, you can just drive across state lines and bring whatever you want in, and people don't know. Or you could go to a gun show or the internet. And so it's important to address gun control on a local and a state basis, but it just really increases the need for us to have uniform gun laws and have legislation passed on a federal basis."
It reminds me of this evergreen tweet. No matter what happens, you can be sure gun control is [and will remain] their answer. At least that’s what we’re told.
Responding to Rep. Bass, FPC president Brandon Combs had this to say to a reporter:
Representative Bass expressed her desire for a nation-wide police state, where rights are rationed out to the people by the government. Rep. Bass clearly does not care about human rights and individual liberty. Thankfully our Constitution takes her policy preferences off the table.
Even if she got her wish, no gun owner I know would give a damn what she or her law says. We – millions of armed Americans – have drawn a line in the sand and we are done with infringements of our fundamental rights.
We have to remember that school shootings, while tragic, are incredibly rare events. Attacking human rights like the right to keep and bear arms because of incredibly unlikely circumstances is like banning people from going outside so they don't get struck by lightning.
Opportunistic politicians use anything they can to advance their incredibly dangerous agenda. Like vultures circling and waiting for the next headline, they don't let tragedies go to waste—and this murder is no exception.
Federal Judge rules posting gun designs 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 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, relating 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’re at 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 dreamed 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.
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.
A.G. Barr asserts the program “will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally.”
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, WA city council voted 8-0 in favor of new taxes on the sales of guns and ammunition. 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.
The revenue from the tax is said to be designated for “violence prevention” programs. As for the purpose of the legislation, Tacoma council member Catherine Uska suggested that the tax “gives a signal to other municipalities that it’s something that they can do.”
Various businesses have already threatened to leave the jurisdiction, so we’ll see what happens January 1. The real kicker here is just how regressive the program is. Low-income people are the most likely to be violently victimized and therefore have the most need for a good firearm. Making firearm ownership more expensive won’t solve violent crime. It will only discourage lawful gun owners.
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 on top 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 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 sure up their system what with deer season opening, 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 eyes. 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).
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.
Products liability is a massive rabbit hole to dive down, but to put it simply: it’s a creature of tort law (think: slip and fall, car accidents) designed to make it easier to sue when you’re injured using a product, but aren’t able to prove negligence (that anyone “messed up”).
The plaintiffs are arguing that they can proceed despite the PLCAA because Connecticut has strict trade practices law, and want to argue that Remington violated that law, and that because of that, their suit can proceed.
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.