This week in gun rights – September 5, 2020

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

Appeals court upholds New Jersey’s magazine capacity ban; Federal court upholds Washington gun laws; Texas lawmaker wants to repeal state carry permit requirement; City wants residents to tattle on people building ghost guns; Town trying to ban open carry on public property; City complicates firearm discharge ordinance.

Appeals court upholds New Jersey’s magazine capacity ban

In a 2-1 decision, the Third Federal Circuit Court of Appeals upheld New Jersey’s magazine capacity restriction in New Jersey Rifle and Pistol Clubs, Inc., et al, v. Attorney General New Jersey, et al. This is, of course, bad news for gun owners in New Jersey, but even bad legal decisions sometimes come with silver linings. In his dissent, Judge Matey wrote that the appropriate test for analyzing the constitutionality of gun laws is an analysis of text, history, and tradition, agreeing with the brief FPC filed in the case.

This is a reminder that elections have lots more consequences than who foibles on TV. The President is the one who nominates judges at all levels of the federal court system, and appointments to the courts are, with a small exception, lifelong. All it takes to systemically deprive people of their constitutional rights is for them to elect individuals who would take those rights from them, and for that individual’s judges to set bad legal precedent that subordinate courts cannot overcome.  

Federal court upholds Washington gun laws

On Monday, a federal judge for the Western District of Washington State affirmed the constitutionality of Initiative 1639, which raised the legal age to purchase semiautomatic rifles to 21, instituted enhanced background check requirements, and prohibited the sale of semiautomatic rifles to individuals from out-of-state. Using a pseudo-text, history and tradition analysis, the court claimed that because individuals between 18 and 21 were considered minors, and because state laws restricting these purchases dated back to the 19th century, I-1639 was constitutional. Of course I call this a pseudo-analysis because the ruling fails to account for the history and text portion of the analysis. Although there may be a late-starting tradition (after all, the country was founded in the 18th century), even individuals under 18 routinely possessed firearms, both on the battlefield and on the homefront prior to and after the Founding. While this is disappointing news, the decision will be appealed to the Ninth Circuit. 

Texas lawmaker wants to repeal state carry permit requirement

State Representative Kyle Biedermann (R-Canyon Lake) has just announced that he intends to submit a bill to permit constitutional carry in the great state of Texas’ next legislative session. Despite the state’s reputation for being gun-friendly, to carry, gun owners are required to complete training, submit fingerprints, and pay a fee to obtain a carry license. Biedermann’s position is that if you can legally own a gun, you should be able to carry it. He’s right; after all, typical gun owners usually buy their guns from federal firearm licensees, which means they’ve already undergone a background check.

Who opposes Bidermann’s bill? Moms Demand Action, of course, who contend that allowing people to carry without training and a background check will somehow turn the state into bedlam. There’s no conclusive proof that background checks reduce violent crime, presumably because criminals aren’t going to a gun store, filling out a Form 4473, and waiting for the feds to run a background check on them. The type of carry in question - concealed carry - also means that these concerned “moms” wouldn’t know whether or not someone is armed in the first place, so why should people who intend to comply with the law have to jump through all of these hoops just to exercise their right? Hopefully this bill gains traction so that Texas can be yet another state that recognizes the natural right to bear arms without interference from the government. 

City wants residents to tattle on people building ghost guns

Syracuse, New York police are complaining because people are building their own guns, or more precisely, in the words of Sergeant Malinowsky, you have to register guns you build, and “traditionally, criminals aren’t doing that.” Ya don’t say. Deathly afraid of these ghost guns, the Syracuse Police Department is requesting that anyone with knowledge of people building guns provide that information to the police so they can “investigate the incident.” That’s right, they want residents to turn in their friends, family, and neighbors for building guns. 

What’s unsurprising about this situation is the police department’s lack of firearms knowledge. They’re particularly concerned about the proliferation of partially complete firearms receivers, or as they’re more commonly known, 80% receivers. New York has been pushing to eliminate them since last year when the state Attorney General sent cease and desist letters to online retailers, but oddly enough, it’s had no effect on their prevalence.

The takeaways from this are two-fold. First, never narc on your neighbor. The government isn’t paying you to do this, and it’s underhanded of them to try to use civilians to circumvent the Fourth Amendment. Second, no amount of gun laws will ever stop people from obtaining firearms; even if New York could stop the flow of 80% receivers, they can’t stop people from building their own guns, whether they’re building their lowers out of wood, plastic, or sheet metal.

Town trying to ban open carry on public property

Thanks to town council member Aaron Wolff, the Holly Springs, North Carolina City Council has just held a preliminary vote to ban open carry on town property. The reason for banning open carry is simple: supporters of the restriction believe that allowing people to open carry on government property allows those armed to intimidate others. What’s even more annoying about this proposal is that the town hasn’t seen any issues with “intimidation” resulting from open carry; the proponent of the bill acknowledged as much and even said that the measure is “proactive.”

As a veterinarian I wouldn’t expect Councilman Wolff to be well-versed in the Bill of Rights, but I would expect him to be able to exercise some basic logic. By passing this ordinance, Holly Springs is affecting people in two ways: rendering those who would be most able to protect those around them defenseless while in high-traffic, public places, and preventing those who refuse to sacrifice their right to self-defense from exercising their right to free speech and interacting with elected officials on the very property they pay taxes to upkeep.

City complicates firearm discharge ordinance

On Tuesday the Lenexa, Kansas City Council voted unanimously to update its laws regulating the discharge of guns in city limits. Prior to this revision, the city ordinance made it unlawful to discharge a firearm in city limits, with exceptions for scenarios like self-defense and for law enforcement officers. As revised, the new city ordinance will say that “[t]he Unlawful Discharge of a Firearm is the intentional or reckless discharging or firing of a firearm within the City limits. Unlawful Discharge of a Firearm is an unlawful act.”

Discharging a firearm within municipal limits is a regulated activity in many American towns and cities. The problem with this revised language is that it makes the legality of shooting a gun in town even more ambiguous. What if you have a mechanical failure and your firearm discharges? From a legal standpoint, an occurrence like that isn’t necessarily a reckless act, so it falls in a grey area. Punishment for violating the ordinance can be a $2,500 fine, up to a year in prison, or both. Should the owner of a defective firearm be punished because the sear failed to catch on his new gun? The ordinance also includes an open-ended list of presumptively lawful activity which may or may not include target shooting at a gun range. Perhaps the Lenexa City Council should reconsider that language as well, or maybe just repeal the whole thing. After all, I’m sure they have a noise ordinance on the books anyway.