Saturday, March 23, 2019

DC Circuit Stays Bump Stock Rule


The Court of Appeals for the DC Circuit has issued a stay on the enforcement of the BATFE's bump stock ban. It is only temporary and is intended to give the judges on the Circuit Court the time needed to study the expedited appeal. It doesn't go to the merits of the case but the judges acknowledged that the March 26th deadline was an issue.

From the court's order:
BEFORE: Henderson, Millett, and Srinivasan, Circuit Judges

O R D E R

Plaintiffs in these three consolidated cases challenge a final agency rule banning Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018) (“Bump-Stock Rule”), which is scheduled to take effect on March 26, 2019. On February 25, 2019, the district court denied the plaintiffs’ joint request for a preliminary injunction staying the Bump-Stock Rule’s effective date. On March 1, 2019, this court granted the Appellants’ joint motion for expedition of this case, in which they sought resolution of the appeal on a highly expedited basis before the March 26, 2019, effective date. Under that expedited schedule, this case was argued on March 22, 2019. At oral argument, counsel for the government explained that it was now its position that the Bump Stock Rule’s March 26, 2019 effective date should be viewed as the date when the government will cease exercising its prosecutorial discretion not to enforce federal law against those who possess or trade in bump-stockdevices covered by the Bump-Stock Rule. Oral Arg. 49:00-51:55. Following oral argument, the Firearms Policy Coalition, Inc. filed a voluntary motion to dismiss its appeal, or in the alternative to stay its appeal, and advised that the government opposes the motion to dismiss. In light of these representations, it is

ORDERED that the motion of the Firearms Policy Coalition, Inc., to dismiss its appeal, No. 19-5043, be granted. Appeal No. 19-5043 is hereby dismissed. It is

FURTHER ORDERED, on the court’s own motion, that the effective date of the Bump-Stock Rule, 83 Fed. Reg. 66514 (Dec. 26, 2018), be administratively stayed in its application only as to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending further order of this Court. The purpose of this stay is exclusively to give the Court sufficient opportunity to consider the disposition of this highly expedited appeal, and should not be construed in any way as a ruling on the merits of the appeal. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018).
 As I understand this, it only applies to the individuals and organizations named as plaintiffs in the cases.

Thursday, March 21, 2019

World Class Snark


I love snark. The tweet below is, in my opinion, world-class.

As most probably know, that Irish-American former congressman from Texas by the name of O'Rourke has decided to run for president. I'd wager that if he were forced to take an Ancestry DNA test, the only Spanish blood in his veins might have come from a survivor of the Spanish Armada that washed ashore in Ireland.

Cheer to entrepreneur and business advisor Carol Roth for giving us the proper pronunciation of O'Rourke's first name.



Wednesday, March 20, 2019

Polenar Tactical At CZ Media Day


The guys and girl at Polenar Tactical, the Slovenian firearms training and video folks, have just produced a Full 30 video on the CZ's Media Day. Among the firearms shown are the Bren 2 in .308, a CZ precision rifle, and various CZ competition pistols with and without optics.



Monday, March 18, 2019

Give Thom A Call This Morning


Sen. Thom Tillis (R-NC) has been equivocating on red flag laws in his letters to constituents (like me!). Tillis is also a member of the Senate Judiciary Committee which is holding hearings on red flag laws. Now is the time to send Thom a message regarding red flag law. Grass Roots North Carolina is asking for people to give his office a call this morning to let him know this ain't OK.

Tillis, by the way, is up for reelection in 2020 so he is in that part of his term where he needs to play politician 100% of the time. We need to use that to our advantage.

From the GRNC alert:

STOP 'RED FLAG' LAWS:
CALL THOM TILLIS

On Friday night, GRNC alerted supporters to the fact that US Senator Thom Tillis (R-NC) looks to be capitulating to his anti-gun colleagues in Washington. Tillis has telegraphed his support for "Extreme Risk Protection Orders" (or "Red Flag" laws) by supporting S. 7. This bill would allow the word of an accuser, voicing “concerns,” to strip a citizen of several of the Constitutional protections guaranteed by the Bill of Rights—without due process. Yet, in Senator Tillis’ recent correspondence with concerned constituents, he did not address any of the glaring and very serious problems with S. 7. Telling the "whole" truth is to tell the truth. Omitting critical details on such an important matter is, well... something else. This does not inspire voter confidence in Tillis' resolve to support the Bill of Rights.

Unfortunately, it looks like the Judiciary Committee, of which Tillis is a member, will conduct a hearing on S. 7 on March 26. Human rights are non-negotiable, and therefore, Tillis must not vote for this bill---but he seems poised to.

As part of Friday's alert, we asked gun owners and other supporters of the Bill of Rights to phone Thom Tillis' DC office on Monday morning (3/18/2019), and this alert is a friendly reminder to do just that. Below, in the Immediate Action section, find details on how to reach Tillis and demand that he stand for the 2nd, 4th, 5th and 6th Amendments, not against them. 

To read more about "Red Flag" laws, and Thom Tillis' willingness, to cozy up to them as a member of the powerful Senate Judiciary Committee, click to read Friday's alert, and/or click to read a previous alert on the topic.
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IMMEDIATE ACTION REQUIRED!


  • PHONE SENATOR THOM TILLIS: On Monday morning (3/18/2019), please phone Thom Tillis’s DC office at this number: (202) 224-6342. If you can’t call in the morning, please call as soon as you can after that. Deliver the following message to Tillis’ staff or his voice-mail.  
Hello, I am calling about the senator’s recent correspondence on the topic of Senate Bill 7, “Extreme Risk Protection Orders,” sometimes called, “red flag” laws. In this correspondence, he conspicuously failed to address the severe Constitutional problems with red flag laws; the establishment of ex parte hearings is just one of many examples. In fact, these laws threaten Second, Fourth, Fifth and Sixth Amendment protections—at least.

I am quite troubled by Senator Tillis’ effort to dance around the major problems with red flag laws and I expect him to be more candid, indeed more honest, with me in the future. As a North Carolina voter and a gun owner, I also expect the senator to live up to his oath of office, to the Republican Party’s platform, to the pro-Second Amendment statement on his own website, and to do everything in his power to defeat this revolting, un-American bill, and any other bill like it. Thank you.

Thursday, March 14, 2019

Reactions, Pro And Con, To Connecticut Supreme Court Ruling


As you can well imagine the gun prohibitionists are ecstatic over the Connecticut Supreme Court's constitutionally dubious ruling in Soto et al v. Bushmaster et al today. Both the Brady Campaign and the Giffords Law Center had filed amicus briefs in the case.

From the Brady Campaign which has been working hard to punch holes in the Protection of Legal Commerce in Arms Act for many years:
Justices have reversed a lower court ruling allowing the lawsuit to move forward and put the question to a jury of whether or not Remington and gun dealers can be held accountable for its role in the 2012 shooting. The lawsuit argues that the assault-style weapon used in the massacre had knowingly been marketed to the public despite being designed for military use. It is also argued that the weapon’s marketing deliberately appealed to young people, particularly those like the 20-year-old who killed 26 people in Newtown, Connecticut.

“This is a good day for justice and for victims of gun violence everywhere,” stated Brady President, Kris Brown. “The law requires everyone, particularly businesses, to operate in a way that will not cause foreseeable harm. It’s time for gun companies to be held to this same standard, and stop being allowed to put profits over people. Brady stands ready to continue our support of Sandy Hook families in their quest for justice.”

For 30 years Brady’s legal team has led the way in winning precedent setting cases that hold gun companies accountable for their role in gun crimes. These cases are reining in and challenging gun industry protection laws, and include a negligent marketing claim against the maker of an assault weapon used in a mass shooting in 1993. This case was discussed at length in today’s decision. Brady’s team provided advice and counsel to the Sandy Hook lawyers throughout the case, also filing an amicus brief in support of plaintiffs.

“We are happy that the Sandy Hook families will get the day in court they deserve. Companies that choose to market weapons of war to the public should not get a free pass from the duty to use the reasonable care that every other person or business must follow,” stated Brady’s VP of Legal, Jon Lowy. “It is unfortunate that the gun industry’s special protection law forced these grieving families to endure years of appeals to get what should be rightfully theirs -- their day in court and an opportunity to prove their case. Thankfully this court recognized that if you unreasonably market weapons of war to the public, you can be held accountable for the consequences.”
Reader of this blog know that not one military in the world has adopted the semi-automatic AR-15 or its progeny for use. Calling it a "weapon of war" and "designed for military use" is an outright lie and both Brown and Lowy know it.

Likewise, the Cult of Personality's Legal Arm otherwise known as Giffords Law Center to Prevent Gun Violence has weighed in on the ruling with a comment from Adams Skaggs who is their chief counsel.
“Today’s decision is a victory for the families of Sandy Hook and a victory for the principle that no industry is above the law or above accountability. The Connecticut Supreme Court squarely rejected the idea that any industry, no matter how powerful, can slam the courthouse doors shut to the victims of their illegal marketing practices. Now, these families who suffered so much will have the day in court they rightly deserve. We look forward to working with them as this case moves forward, and to supporting all victims of American gun violence as they pursue justice.”
Understandably, those who stand for the rule of law and the recognition that the liability for the criminal misuse of any legal product lies with the criminal were not pleased with this ruling.

Alan Gottlieb of the Second Amendment Foundation responded strongly saying, in part:
“This ruling strains logic, if not common sense,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The court dismissed the bulk of the lawsuit’s allegations, but appears to have grasped at this single straw by deciding that the advertising is somehow at fault for what did that day in December more than six years ago.

“This is like suing Ford or General Motors because a car they sold was stolen and used to run over a pedestrian all because the car manufacturers advertised that their car had better acceleration and performance than other vehicles,” he added.

, 20, first killed his mother and took her legally-purchased Bushmaster rifle to the school, where he murdered 20 youngsters and six adults. The lawsuit contends that Remington’s advertising was designed to glorify the Bushmaster rifle and enhance its appeal to younger consumers.
Justice Richard Palmer, writing for the majority, said that the “regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the state’s police powers.”

“That is absurd in this case,” Gottlieb observed. “Did the advertising even remotely suggest that the Bushmaster is best for murdering people? It appears to me like the court was looking for a way to squeak around the provisions of the Protection of Lawful Commerce in Arms Act that Congress passed in 2005. After all, the court dismissed most of the allegations, but now has decided that advertising might be at fault. That’s a stretch of credulity worthy of surgical elastic.”

“There is no evidence the killer was driven by any advertising whatsoever,” he said. “This is an affront to the First Amendment as well as the Second. Even hinting that the killer was motivated in some way by an advertising message is so far out in the weeds that it may take a map for the court to find its way back.”
The National Shooting Sports Foundation, which is located in Newtown, Connecticut and whom is the actual lobby for the firearms industry, also disagreed with the majority's opinion in the ruling. While a bit more circumspect that the SAF's comment, it still expresses their displeasure.
NEWTOWN, Conn. – The Connecticut Supreme Court today reversed (4-3) a state Superior Court ruling and decided in Soto v. Bushmaster that the case can go forward based on the plaintiffs’ allegation that the defendants marketing and advertising of a legal product somehow violated Connecticut’s Unfair Trade Practices Act (CUTPA). The Court’s split decision held that CUTPA fit within an exemption to the federal Protection of Lawful Commerce in Arms Act (PLCAA) that permits lawsuits where the defendant violated a statute applicable to the sale of firearms. In a strongly worded and well-reasoned dissent, Chief Justice Robinson rejected the majority’s overly broad interpretation of the scope of the limited exception, which is contrary to legislative text, canons of statutory interpretation and the legislative history of the PLCAA. The majority’s decision today is at odds with all other state and federal appellate courts that have interpreted the scope of the exception. As the trade association for the firearms industry, the National Shooting Sports Foundation® filed an amicus brief in support of the defendants in this case and both respectfully disagrees with and is disappointed by the court’s majority decision.
Finally, from what I can tell from an internet search, neither Cerberus Capital Management nor Remington Outdoor Company have issued statements.

Connecticut Supreme Court Rules Remington Can Be Sued Regardless Of PLCAA


The Connecticut Supreme Court has ruled today that Remington can be sued by families of Newtown victims. This overturns a 2016 Connecticut Superior Court ruling that said that the Protection of Lawful Commerce in Arms Act precluded such a lawsuit. The 4-3 decision by the state supreme court held that while most claims were properly dismissed Bushmaster's marketing of the AR-15 amounted to violations of the state's unfair trade practices.

The majority opinion  written by Justice Richard Palmer concluded:
For the foregoing reasons, we conclude that the trial court properly determined that, although most of the plaintiffs’ claims should have been dismissed, PLCAA does not bar the plaintiffs’ wrongful marketing claims and that, at least to the extent that it prohibits the unethical advertising of dangerous products for illegal purposes, CUTPA qualifies as a predicate statute. Specifically, if the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assaults against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted.

The judgment is reversed with respect to the trial court’s ruling that the plaintiffs lack standing to bring a CUTPA claim and its conclusion that the plaintiffs’ wrongful death claims predicated on the theory that any sale of military style assault weapons to the civilian market represents an unfair trade practice were not barred under the applicable statute of limitations, and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects.
 The majority also concluded that it was doubtful that the most popular rifle and carbines sold in the US over the last few years was even protected by the Second Amendment. As Professor William Jacobson at Legal Insurrection notes, the Connecticut Supreme Court seems to be daring the US Supreme Court to take this case.

Jacobson goes on to say:
The question is not only whether the U.S. Supreme Court will take the case, but when that will happen — now, or only after a final judgment is rendered in the CT courts. That’s key, because if a gun manufacturer otherwise protected by PLCAA has to go through discovery and trial, that defeats the purpose of PLCAA.
The dissent  written by Chief Justice Richard Robinson examined the PLCAA, Congressional intent, and case law and concluded:
In summary, whether this court agrees with Congress or not, in adopting the arms act, Congress adopted findings and statements of purpose in 15 U.S.C. § 7901; see footnote 1 of this dissenting opinion; which made very clear its intent to absolve defendants like these— gun manufacturers and distributors—from liability for criminal use of firearms by third parties except in the most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of liability.22 This court is obligated, therefore, to construe the predicate exception to the arms act, 15 U.S.C. § 7903 (5) (A) (iii), narrowly in light of that clear expression of congressional intent.
Chief Justice Robinson continues:
Consequently, I strongly disagree with the majority’s conclusion that CUTPA, which is a broadly drafted state unfair trade practices statute applicable to all commercial entities in a variety of factual circumstances, comes within that exception.24 Instead, I would conclude that, because CUTPA, both in its statutory text and in its implementation under the cigarette rule, reaches a range of commercial conduct that far exceeds the manufacture, marketing, and sale of firearms, it is not by itself a predicate statute. That state unfair trade practices statutes had not been used to hold firearms manufacturers civilly liable to crime victims25 renders the plaintiffs’ CUTPA claims particularly novel in the contemplation of Congress; see 15 U.S.C. § 7901 (a) (7) (2012); and, thus, subject to preclusion under the arms act.
I most certainly hope that Remington appeals this decision to the US Supreme Court as this ruling by the Connecticut Supreme Court certainly serves to undercut the supremacy of Federal law. More importantly, I hope the US Supreme Court takes this case sooner than later.

As an aside, Justice Palmer who wrote the majority opinion in this case served as the US Attorney for Connecticut from 1991 to 1993 and was appointed by President George H. W. Bush. So much for assuming Republicans respect the rule of law, the Constitution, or the supremacy of Federal law on what is rightfully a Federal issue. I guess Justice Palmer didn't want to irritate his friends down at the country club by ruling in favor of those icky gun companies.

Tuesday, March 12, 2019

Plain Meaning Of Statutory Terms? I Don't Think They Understand The Term


The Giffords Law Center to Prevent Gun Violence, otherwise known as the Cult of Personality's Legal Arm, has filed a notice that they will be filing an amicus brief in Guedes et al v. BATFE et al. This is the bump stock ban case that is on appeal to the US Court of Appeals for the DC Circuit after the denial of a temporary restraining order. The amicus brief will be in support of the government's position.
Pursuant to D.C. Circuit Rule 29(b), Giffords Law Center to Prevent Gun Violence (“Giffords Law Center”) hereby gives notice that it intends to file a brief in this matter as amicus curiae in support of Defendant-Appellees. Giffords Law Center focuses specifically on firearms policy and the plain meanings of statutory terms, highlighting Appellants’ reasoned approach to and the pressing need for bump stock regulation. All parties have consented to the filing of this brief.
Beyond the fact that the BATFE are the appellees and this notice highlights"Appellants' reasoned approach", to say that Giffords Law Center focuses on "the plain meanings of statutory terms" is an oxymoron. The National Firearms Act is clear on the definition of a machine gun and the BATFE's own expert from the Firearms Technology Division Richard Vasquez got it right when he said bump stocks were not machine guns.

The rule from BATFE and the DOJ justification of it were made up from whole cloth. Both the NFA Handbook and ATF Ruling 2006-2 are clear on the definition of a machine gun and a bump stock doesn't meet that definition. Congress was clear in what they meant in their definition of a machine gun and that is the real plain meaning.


NC Bill Allowing For Armed Teachers Makes Fox News


NC Senate Bill 192, the School Security Act of 2019, was introduced in the General Assembly last week. It would allow for teachers who have completed the Basic Law Enforcement Training program to become "teacher resource officers". They would get a bonus for serving as a teacher resource officer in addition to their normal teaching duties.

As the gun prohibitionists like to say about any gun control bill, "It's a good first step." However, in this case it is the first step in allowing some teachers to be armed in an effort to protect students. The BLET requirement is overboard in that it requires the teacher resource officer to be trained in many things that would be extraneous to actually protecting students. For example, there would be no need for a teacher resource officer to know anything about motor vehicle laws, law enforcement driver training, or traffic crash investigation. That said, it gets our foot in the door.

Retired NC teacher and USMC veteran Jean Fitzsimmons was interviewed on Fox and Friends First regarding arming teachers. Here is what he had to say. Kudos to him to him for getting up that early in the morning and for the mention of Grass Roots North Carolina.