Legal News

FPC Files First Appellate Brief in Effort to Intervene in Lawsuit Seeking to Force ATF to Expand Definition of “Firearm” :: 04/23/2021

NEW YORK, NY (April 23, 2021) — Today, Firearms Policy Coalition (FPC) announced the filing of its opening brief with the Second Circuit Court of Appeals in Syracuse v. BATFE, which is a federal lawsuit brought by anti-Second Amendment cities and organizations that seeks to force the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to redefine the term “firearm” to include non-firearm objects, including so-called “80%” objects. The brief can be viewed at FPCLegal.org.

Judgment Entered in FPC Right-to-Carry Lawsuit Following Settlement with City of Philadelphia :: 04/23/2021

PHILADELPHIA, PA (April 23, 2021) — Today, Firearms Policy Coalition (FPC) announced that Federal District Court Judge Michael M. Baylson has entered judgment in the FPC Second Amendment right-to-carry lawsuit Fetsurka v. Outlaw, a case filed last November, following the parties’ agreement to settle through an offer of judgment. The order and judgment terms can be viewed atFPCLegal.org.

FPC Sues Tennessee in New Federal Lawsuit to Restore the Right to Carry Firearms for Adults Under Age 21 :: 04/22/2021

KNOXVILLE, TN (April 22, 2021) — Today, Firearms Policy Coalition (FPC) announced the filing of a new federal Second Amendment lawsuit on behalf of itself and three individuals, challenging the State of Tennessee’s laws that prevent law-abiding adults under age 21 from carrying a loaded firearm in public for self-defense. The case, Bassett v. Slatery, is the most recent addition to FPC’s strategic litigation program seeking to restore the right to keep and bear arms throughout the United States. The complaint can be viewed atFPCLegal.org.

FPC Files Opening Brief in Challenge to Maryland “Assault Weapons” Ban :: 04/21/2021

RICHMOND, VA (April 21, 2021) — Today, Firearms Policy Coalition (FPC) announced the filing of its opening brief with the Fourth Circuit Court of Appeals in Bianchi v. Frosh, a federal lawsuit challenging Maryland’s ban on common semi-automatic firearms it classifies as “assault weapons.” The brief can be viewed at FPCLegal.org.

BREAKING: FPC Condemns Leaked Biden ATF Gun Control Plan to Further Infringe on Fundamental Rights :: 04/20/2021

WASHINGTON, D.C. (April 20, 2021) — Today, Firearms Policy Coalition (FPC) was made aware of an apparently leaked ATF document, captioned “Definition of ‘Frame or Receiver’ and Identification of Firearms,” detailing the Biden administration’s first set of plans to further regulate firearms. After an initial review, FPC Law determined that the proposed new regulations contained in the document would give the ATF new and expansive powers to attack the right to keep and bear arms, particularly the right to self-build arms for lawful purposes. A copy of the document can be found at FPCLaw.org and at The Reload, a new publication founded by prominent firearms journalist Stephen Gutowski.

Judge dismisses suit from young gun owners and firearms rights groups, finds claims have no connection to Second Amendment :: 04/20/2021

PITTSBURGH – A federal judge has dismissed with prejudice litigation from a trio of young gun owners and a pair of non-profit firearms rights organizations who argued state laws violated their Second Amendment rights, finding that the argument fell outside the auspices of the U.S. Constitution.

FPC Statement on Supreme Court’s Action Denying Review of Three Second Amendment Cases :: 04/19/2021

WASHINGTON, D.C. (April 19, 2021) — Today, the Supreme Court announced its refusal to grant certiorari (review) in three Second Amendment cases, Holloway v. Garland, Folajtar v. Garland, and Flick v. Garland, all challenging the constitutionality of federal lifetime firearm bans that resulted from prior non-violent convictions. Firearms Policy Coalition (FPC)’s FPC Law were counsel on the Holloway and Folajtar petitions, and filed a brief in support of the petitioner in Flick.

U.S. Supreme Court Denies Review of Three Second Amendment As-Applied Challenges :: 04/19/2021

I am extremely disappointed and surprised to announce that this morning, the U.S. Supreme Court denied certiorari in three Second Amendment as-applied challenges. The cases were Holloway v. AG Garland, et al., docket no. 20-782(regarding whether a single, isolated DUI, involving no property damage or harm to any person can strip someone of their Second Amendment rights); Folajtar v. AG Garland, et al., docket no. 20-812 (regarding whether a young lady’s false statement on a tax return a decade ago, can strip her of her Second Amendment rights); Flick v. AG Garland, et al., docket no. 20-902 (regarding whether an individual who was convicted of smuggling in counterfeit cassette tapes can be stripped of his Second Amendment rights). Both Holloway and Folajtar were cases that I litigated.

New Gun Rights Decision: State of Vermont v. Misch :: 04/17/2021

On February 19, the Vermont Supreme Court upheld a state ban on common firearm magazines enacted in 2018 purportedly to stem the problem of school shootings. There has never been a school shooting in Vermont. Indeed, the state has the lowest murder rate in the nation—so close to zero that the CDC does not even calculate it.[1] But in 2018, it was widely reported in the media that the police had supposedly thwarted a high school student in Fair Haven, Vermont, from committing a mass shooting. While no shooting occurred—and indeed, the Vermont Supreme Court later threw out the effort to prosecute the student for attempted murder[2]—pro-gun-control forces in Vermont successfully used the event as a catalyst for enacting a statewide ban on possessing ammunition magazines that hold more than 10 or 15 rounds (for rifles and handguns, respectively), violation of which is punishable by incarceration for up to one year.

Max Misch was charged with violating the new ban. He challenged the ban as unconstitutional under Article 16 of the Vermont Constitution, which provides that “the people have a right to bear arms for the defence of themselves and the State.”[3] The trial court upheld the ban, and the Vermont Supreme Court unanimously affirmed.

Misch, a professed white nationalist who was the first person arrested under the ban,[4] was defended by the Office of the Defender General, which represents needy persons. Pending at the same time was a civil challenge to the ban which brought before the courts well-researched legal authorities, historical material, and criminological studies. The Supreme Court chose to decide the issue based on the sparse record in Misch, disregarding the well-developed record in the civil case, which it summarily dismissed.[5]

The court first asked “whether Article 16 protect[s] an individual’s right to possess guns for self-defense outside of the context of actual or potential state militia service.”[6] Remarkably, the court concluded that this question was not resolved by the plain text’s reference to bearing arms “for the defense of themselves” as well as “the State.”[7] Instead, based on its review of the “historical context” of Article 16, as well as recent “corpus linguistics” data that purportedly “revealed that ‘bear arms’ most often meant to serve in a military capacity,” the court concluded that the text of the provision was best read as “tied to the purpose of preserving a state militia force.”[8] While the court acknowledged that the specific reference to people using arms “for defense of themselves” created “the possibility” that the right extended to “individual self-defense,” it concluded that this phrase could also be read as referring to bearing arms “for the purpose of defending the collective body politic.”[9] The court did not explain why such a reading would not make the “defense of themselves” clause entirely duplicative of the “defense of . . . the State” clause, rendering it essentially meaningless.

Although the opinion includes a heading “Historical Context,”[10] it disregards the rich history of Vermont’s founders such as Ethan and Ira Allen, originally detailed by this author in a 1985 issue of the Vermont Law Review. The individual right to bear arms for self-defense, hunting, militia purposes, and resistance to tyranny was freely exercised by those who created the state of Vermont and adopted its Declaration of Rights.[11]

To exemplify what was commonplace at Vermont’s founding, the Allen brothers once lodged with a Quaker during a journey, and Ira recalled: “We took our pistols out of our holsters and carried them in with us. He looked at the pistols saying ‘What doth thee do with those things?’ He was answered ‘Nothing amongst our friends,’ but we were Green Mountain boys, and meant to protect our persons and property . . . .”[12] Ira Allen was instrumental in establishing Vermont as an independent state, including the adoption of its Declaration of Rights and Constitution.[13]

Nonetheless, the court did “conclude that Article 16 protects a right to possess firearms for self-defense.”[14] Rather than the constitutional text, it based this conclusion on: (1) two of the court’s precedents, which “assumed that Article 16 protects an individual right to bear arms,” and (2) “[c]ase law from our sister states”—in particular, the decisions by “[c]ourts in states with constitutional provisions substantially identical to Vermont’s in referencing a right of ‘the people’ to bear arms ‘for defense of themselves and the State,’” which “have consistently construed these provisions to protect an individual right to bear arms for self-defense.”[15]

The court then turned to “determining the standard for evaluating Article 16 challenges.”[16] Instead of the “two-step” standard applied by several federal appellate courts, the court adopted a “reasonable-regulation test, which is more deferential to the Legislature’s judgment and the police power of the state.”[17] Under that standard, the court starts by “presum[ing] the reasonableness and constitutionality” of the challenged restriction.[18] It then asks whether “there is a reasonable fit between the purpose and means of regulation.”[19] The court asserted that this test “is distinct from rational-basis review because it demands not just a conceivable legitimate purpose but an actual one,” and that a “[r]egulation of firearms is not reasonable if it renders Article 16 a nullity.”[20] But the inquiry “does not override our general deference to the Legislature on matters within its authority,” and it merely ensures that “the Legislature’s choices are anchored to a real, as opposed to hypothetical, foundation.”[21] However, the court failed to address whether the law may have had only a hypothetical foundation, given the lack of any school shootings in Vermont and the lack of a nexus between magazine capacity and school shootings in other states.

Finally, the court held that the state’s ban on 11- or 16-plus-round magazines “does not violate the right to bear arms” under this standard.[22] “There is no question,” the court noted, “that reducing the potential for injury and death in the event of a mass shooting is a proper Legislative purpose within the police power.”[23] Moreover, it thought that “[s]ubstantial available data supports the conclusion that bans on large-capacity magazines may be effective in reducing the fatalities and injuries in the event of a mass shooting.”[24] The court did not address the social science evidence showing that the effect of magazine bans like Vermont’s on mass shootings is inconclusive at best.[25] Nor did it explain how the challenged ban would plausibly reduce “the use of large-capacity magazines” by mass shooters,[26] given that the banned magazines remain freely available across the border in New Hampshire. Indeed, the court even declined to say for certain that it “credit[s] the . . . accounts, studies, and arguments” advanced in support of the ban.[27]

The implications of the Vermont Supreme Court’s decision are significant—both for Vermonters and for other Americans. The magazine ban at issue is the first major piece of gun-control legislation enacted in the state in modern times[28]—perhaps prefiguring a reversal of Vermont’s well-known status as a haven for law-abiding citizens who wish to exercise the right to possess and use firearms freely and responsibly.[29] The decision in Misch indicates that if gun-control activists can persuade the state government to enact further restrictions on the right to keep and bear arms, the state courts are unlikely to provide a meaningful check.

The decision in Misch may also have more national reverberations. Magazines that hold more than 10 rounds are common to the point of ubiquity in the United States—a fact that the Vermont Supreme Court acknowledged.[30] And recent events such as the coronavirus lockdowns and rioting in many urban centers have sparked a new appreciation among many Americans of the benefits of armed self-defense.[31] Yet there is clearly a political desire by some to restrict the use of these common magazines, as evidenced by President Biden’s proposal to enact a magazine ban similar to Vermont’s at the federal level.[32]

More generally, the decision may hint at the beginning of an assault on the U.S. Supreme Court’s 2008 decision in Heller v. District of Columbia[33] holding that the Second Amendment protects an individual right to keep and bear arms for self-defense. Misch signaled contempt for Heller’s reasoning—rejecting the U.S. Supreme Court’s conclusion that Vermont’s constitution “clearly adopted individual rights unconnected to militia service,”[34] and embracing the account of the history of the Second Amendment set forth by Justice Stevens’s dissenting opinion in Heller.[35] And the Vermont court’s reliance on corpus linguistics research to adopt an interpretation of “bear arms” as limited to “a collective or military sense”[36]— contrary to Heller’s core reasoning[37]—tracks an argument advanced by those who have called on the Supreme Court to reverse its decision in Heller.[38] Whether that effort gains any traction outside of Montpelier remains to be seen.

[1] Homicide Mortality by State, Centers for Disease Control & Prevention, Nat’l Center for Health Statistics (Feb. 16, 2021), https://www.cdc.gov/nchs/pressroom/sosmap/homicide_mortality/homicide.htm.

[2] Alan J. Keays & Colin Meyn, Supreme Court says no ‘attempt’ in Jack Sawyer case, Vt. Digger, Apr. 11, 2018, https://vtdigger.org/2018/04/11/supreme-court-says-no-attempt-jack-sawyer-case/.

[3] Vt. Const. ch. I, art. 16. That is buttressed by the further declaration: “That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty; . . . protecting property, and . . . obtaining . . . safety.” Id., art. 1.

[4] Jim Therrien, Misch arrested for alleged violation, Bennington Banner, Aug 18, 2019, https://www.reformer.com/local-news/misch-arrested-for-alleged-violation/article_d3e5f1ab-b21d-556a-8597-8193d5b9e19e.html.

[5] Vermont Federation of Sportsmen’s Clubs v. Birmingham, No. 2020-155, 2021 WL 653193 (Vt. 2021).

[6] State v. Misch, 2021 VT 10, ¶ 10.

[7] Vt. Const. ch. I, art. 16 (emphasis added).

[8] Misch, 2021 VT 10 at ¶¶ 13, 17, 20.

[9] Id. at ¶¶ 24, 29.

[10] Id. at ¶13. The court cited a poorly-researched law review article from 1989 for its conclusion that “the historical record contains scant evidence of public debate concerning the right of individuals to keep or carry weapons for nonmilitia purposes . . . .” Id.

[11] See Stephen P. Halbrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 Vermont L. Rev. 255 (1985).

[12] Ira Allen, Autobiography (1799), in James Wilbur, Ira Allen: Founder of Vermont 40 (1928).

[13] Id. at 11-12, 87.

[14] Misch, 2021 VT 10 at ¶ 47.

[15] Id. at ¶¶ 32, 39, 40, 44.

[16] Id. at ¶ 50.

[17] Id.

[18] Id. at ¶ 48.

[19] Id. at ¶ 63.

[20] Id. at ¶¶ 57 (citation omitted), 63.

[21] Id. at ¶ 66.

[22] Id. at ¶ 67.

[23] Id. at ¶ 71.

[24] Id. at ¶ 74.

[25] See, e.g., Effects of Assault Weapon and High-Capacity Magazine Bans on Mass Shootings, RAND Corp., Gun Policy in America (Apr. 22, 2020), https://www.rand.org/research/gun-policy/analysis/ban-assault-weapons/mass-shootings.html.

[26] Misch, 2021 VT 10 at ¶ 72.

[27] Id. at ¶ 79.

[28] Vermont, Giffords Law Center to Prevent Gun Violence, Annual Gun Law Scorecard, https://giffords.org/lawcenter/resources/scorecard/#VT.

[29] Eric Benson, Vermont’s Long, Strange Trip to Gun-Rights Paradise, The Trace (July 9, 2018), https://www.thetrace.org/2015/07/vermont-gun-rights-constitutional-carry/.

[30] Misch, 2021 VT 10 at ¶ 88.

[31] See Martin Savidge & Maria Cartaya, Americans bought guns in record numbers in 2020 during a year of unrest—and the surge is continuing, CNN, Mar. 14, 2021, https://www.cnn.com/2021/03/14/us/us-gun-sales-record/index.html.

[32] Aaron Smith, Biden Aims To Ban High-Capacity Magazines As Ammo Runs Short For New Owners To Fill Them With, Forbes, Mar. 11, 2021, https://www.forbes.com/sites/aaronsmith/2021/03/11/biden-aims-to-ban-high-capacity-magazines-but-theres-no-ammo-for-them-anyway/?sh=caefdd7299fc.

[33] 554 U.S. 570 (2008).

[34] Misch, 2021 VT 10 at ¶ 25, quoting Heller, 554 U.S. at 601.

[35] Id. at ¶ 14, quoting Heller, 554 U.S. at 661 (Stevens, J., dissenting).

[36] Id. at ¶ 17.

[37] Heller, 554 U.S. at 581–91.

[38] See Amicus Brief of Neal Goldfarb at 5, New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280, 2019 WL 3987630 (U.S. Aug. 12, 2019).

US Supreme Court: Gun Licensing Fees Are Unconstitutional :: 04/15/2021

While I am not an attorney and cannot give formal legal advice, a 1943 U.S. Supreme Court decision, Murdock v. Pennsylvania, may give Second Amendment–supporters an overwhelming legal weapon with which to destroy every single firearm ownership (although not necessarily concealed carry) licensing scheme in the country. This includes those that require licenses to own or purchase firearms.

Anti-2A Politicians Defeated In Florida Lawsuit :: 04/12/2021

Preemption laws all over the country not only make sense but protect the law abiding and responsible gun owner. For example, in a state with firearm preemption laws, no local jurisdiction may write a law that is contrary to that of the particular state’s law. In a weird alternative universe, New Jersey actually has something right, they have a preemption law. In states that do not have a preemption law, gun owners have to navigate through a patchwork of different ordinances, making it virtually impossible to know if they are breaking the law as they travel through any given state.

22 states fight California gun restrictions, urge Ninth Circuit to rule against large-capacity magazine ban :: 04/02/2021

Former White House press secretary Ari Fleischer predicts Democrats will bypass bipartisanship to push through gun control legislation after deadly shootings in Atlanta, Georgia and Boulder, Colorado.

Fourth Circuit Wrongly Upholds Terrorist Screening Database Program :: 03/31/2021

U.S.A. –-(AmmoLand.com)- The Fourth Circuit Court of Appeals issued an opinion in Elhady v. Kable, which reversed the District Court’s opinion and held that the Terrorist Screening Database (TSDB) “conforms to long-settled propositions of law” and therefore does not violate the Fifth Amendment’s Due Process Clause. Last year, Firearms Policy Coalition (FPC) filed a brief in this case detailing the numerous rights violations inherent in the TSDB and how it threatens the right to keep and bear arms.

With Briefing Concluded, FPC Second Amendment Lawsuit Now Awaits Supreme Court Action :: 03/30/2021

WASHINGTON, D.C. (March 30, 2021) — Today, Firearms Policy Coalition (FPC) announced that certiorari-stage briefing has concluded with the U.S. Supreme Court in FPC’s Folajtar v. Attorney General Garland case, a Second Amendment lawsuit about the scope of the right to keep and bear arms that has drawn much media coverage in major outlets including Forbes, Reason, Fox News, National Review, and Chicago Sun-Times.

BREAKING: Supreme Court Denies New Jersey Cert in Defense Distributed v. Grewal :: 03/29/2021

The Supreme Court has denied the cert petition of the New Jersey Attorney General Gurbir Grewal in Defense Distributed v. Grewal. In that case, Defense Distributed had sued Grewal for his efforts to restrain (and threats to prosecute) Defense Distributed’s distribution of various 3D print files for firearms and accessories.

En Banc Ninth Circuit Court Rules Gun Owner Have No Right To Carry :: 03/29/2021

SAN FRANCISCO, CALIF –-(Ammoland.com)- The Ninth Circuit ruled in Young v. The State of Hawaii that ruled that an individual does not have a right to bear arms outside the home.

Supreme Court Has Opportunity To Take 2A Cases On Monday :: 03/28/2021

At its weekly conference on Friday, the Supreme Court had three cases that deal with aspects of the right to keep and bear arms to consider. The question is, will the Court accept any of them, or will they once again hold off on hearing a challenge to a gun control provision?

Sixth Circuit Court Rules Bump Stocks Are Not Machine Guns :: 03/25/2021

U.S.A. –-(Ammoland.com)- Gun Owners of America (GOA), Gun Owners Foundation (GOF), the Virginia Citizens Defense League (VCDL), Matt Watkins, Tim Harmsen of the Military Arms Channel, and GOA’s Texas Director, Rachel Malone, defeated the bump stock ban in the Sixth Circuit Court of appeals.

Biden admin calls on SCOTUS to let police enter homes, confiscate guns without a warrant :: 03/24/2021

On Wednesday, the U.S. Supreme Court will hear oral arguments in a case about whether law enforcement officers can enter people’s home and confiscate guns without a warrant, Forbes reported.

Ninth Circuit Rules 2A Doesn't Protect Right To Bear Arms :: 03/24/2021

On Wednesday afternoon, an en banc panel of the Ninth Circuit Court of Appeals handed down a decision that’s sure to get the attention of the Supreme Court, declaring that the state of Hawaii’s requirement that residents hoping to openly carry a firearm first prove to the state that they have an “urgency of need,” are of “good moral character,” and are “engaged in the protection of life and property.”

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