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Supreme Court Vacates Large-Capacity Magazine and Assault Weapon Bans in a Preview of What's Coming Next

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The epic decision by the US Supreme Court declaring that the Second Amendment was a fundamental Constitutional right and not some kind of 18th-century artifact (Supreme Court Rules You Can’t ‘Bear’ Arms Unless You Can Carry Them for Self-Defense) has become a wrecking ball, demolishing petty and harassing laws anti-gun states have fashioned to make life difficult, if not hazardous, for gun owners. Shortly after the decision was announced, some hard-core anti-gun states gave up their unconstitutional limits on open/concealed carry (‘Bruen’s’ Domino Effect: California and New Jersey Drop ‘Good Cause’ Clauses from CCW Requirements).

Another hammer blow came on Thursday. Orders issued by the Court vacated decisions by the Third, Fourth, and Ninth Circuits and returned them “for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen.”

Third Circuit

Issue: A New Jersey law limiting magazine capacity to 10 rounds was upheld.

Association of New Jersey Rifle & Pistol Clubs vs. Bruck by streiff on Scribd

Fourth Circuit

Issue: Maryland’s assault weapon ban was upheld.

Bianchi vs. Frosh by streiff on Scribd

Ninth Circuit

California

Issue: A California law limiting magazine capacity to 10 rounds was upheld.

Duncan vs. Bonta by streiff on Scribd

Hawaii

Issue: Hawaii’s strict licensing requirements for carrying a handgun were upheld. READ: BREAKING. Ninth Circuit Just Made a Second Amendment Ruling That Will Leave You Shaking Your Head.

Young vs. Hawaii by streiff

The Hawaii case is a slam dunk as the facts are nearly identical to Bruen, but the other cases are interesting. The Supreme Court seems to be saying that state laws banning large-capacity magazines and assault weapon bans are illegal. This is Maryland’s list of prohibited long arms; there is also a list of banned pistols.

Forcing courts to use the strict scrutiny and historical use tests, the large-capacity magazine cases and the assault weapon case will have a hard time surviving. Large-capacity magazines have been around for years and are the most common variety. Moreover, the sheer volume of assault weapons in private hands will make it hard to restrict ownership.

Yale law prof suggests new route to carry ban, but is it constitutional?

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Short answer? Almost certainly not, based on what the Supreme Court said last week in New York State Rifle & Pistol Association vs. Bruen, but as we’ve already seen in states like New York, New Jersey, and California, anti-gun activists aren’t letting a little thing like a Supreme Court decision get in the way of their desire to disarm average, everyday Americans.

So what is Ian Ayres’ big idea? Basically, he wants to flip the current law in the vast majority of states to make concealed carry banned on private property unless the owners of that property decide to allow it.

You might be surprised to learn that when you ask someone to come and repair your dishwasher, they can legally carry a concealed weapon into your kitchen unless you expressly object. In all but three states and D.C., any visitor can, by default, carry a firearm into your home without your explicit permission. The repairman has a Second Amendment right to bear arms, but you have a right to control whether people carry guns onto your land.

A central attribute of property ownership is the right to exclude unwanted people from your land. Forty-seven states fail to adequately protect this right of landowners to control their property because they provide the wrong default rule regarding the right of invitees to bear arms. Property owners cannot make an informed choice if they don’t know they have to object (more than two-thirds of people are unaware of these default rules). And it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed.

The same problem exists regarding private commercial land. All 50 states permit individuals to carry their firearms into private retail establishments by default. Private businesses must post “No Guns” signs to make their stores gun-free, and these signs must often meet strict requirements. Many retailers fear customer backlash if they post signs either restricting or permitting gun carry in their stores. So, they are inclined to stick with a state’s default rule regardless of their preferences.

If this idea sounds familiar it’s because New York Gov. Kathy Hochul has decided to implement this idea, at least when it comes to businesses, as part of plan to defy the Supreme Court and make it as difficult as possible for New Yorkers to exercise their right to armed self-defense in public.

There are two big problems with Ayers idea; one constitutional and one practical. As Ayers himself notes, every state in the union says that if you want to ban guns from commercial properties you can do so, but you must provide notice to the public in some form or fashion. 47 out of 50 states take the same view when it comes to non-commercial private property. These laws are widespread and longstanding, and there is nothing in the history or tradition of the right to keep and bear arms that supports what Ayers (and Hochul) are demanding. Given the negative implications that these policies would have on the right of the people to bear arms for self-defense in public and the fact that they have no similar analogues in American history, I don’t think there’s any way that they would be upheld by the Supreme Court.

From a practical perspective the idea is just as flawed. Ayers acknowledges that “it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed,” and that wouldn’t change if all privately-owned spaces become gun-free zones by default. It would be just as difficult to determine if someone was carrying in violation of the law, but we’d also likely see far more individuals inadvertently doing so because of the reversal of the longstanding status quo. Ayers idea wouldn’t stop a single violent criminal, but would turn a lot of otherwise law-abiding citizens into accidental outlaws because they would no longer be able to legally carry in most of the places where they’ve been able to exercise their right to bear arms in the past.

Part of Ayers’ problem is that he, like many other gun control fans, still just doesn’t want to accept that the right to keep and bear arms is a real right. In his piece at The Hill, the Yale professor claims that the Second Amendment is about “individuals’ ability to defend their homes by arming themselves.” That is simply not true. The right to keep and bear arms is fundamentally about protecting yourself, not your property, and as the Supreme Court made clear last week, the right of self-defense doesn’t stop once you set foot outside your front door. If private property owners want to ban lawful carrying on their premises they can do so, but in a country with a right to keep and bear arms, the default position has historically respected that right and must continue to do so in the future.

SCOTUS sends gun and magazine ban cases back to lower courts

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I was hoping that the Supreme Court would grant cert to one or more of the Second Amendment cases that have been pending in conference in light of their decision in Bruen, and technically I got my wish. All four cases were indeed granted cert in today’s orders, but all four decisions were immediately vacated and the Court sent the cases back down to the respective appellate courts for further review “in light of” the decision in New York State Rifle & Pistol Association v. Bruen.

The Association of New Jersey Rifle & Pistol Clubs, which is the plaintiff in a case challenging that state’s ban on the purchase or possession of ammunition magazines with a capacity greater than ten rounds, quickly sent out an alert to its members about the development, saying that “these developments strongly imply that the outcome of the mag ban case might be different under the new Bruen rules,” adding that the Court “also took a similar action in a challenge to an assault firearms ban in Maryland,” which also “implies that assault firearms bans may not survive scrutiny under Bruen, and the potential implications for New Jersey are significant.”

As we’ve previously discussed, the four cases in question involve challenges to New Jersey and California’s ban on “large capacity” magazines as well as Maryland’s ban on so-called assault weapons and Hawaii’s “may issue” permitting process for open carry (the similar “may issue” requirement for concealed carry was upheld by the Ninth Circuit in a case called Peruta v. San Diego back in 2016). The Third, Fourth, and Ninth Circuits will now have to revisit their decisions upholding all of these gun laws, all of which relied on the two-part interest-balancing test explicitly rejected by the Supreme Court in Bruen.

Instead, the courts will now have to determine whether these types of bans are “consistent with this Nation’s historical tradition of firearm regulation”, specifically at the time of the ratification of the Bill of Rights and in the post-Civil War period when the Fourteenth Amendment was ratified. It’s going to be awfully difficult to do so given that there is no historical tradition of banning entire classes of firearms or limiting their ammunition capacity.

The AR-15 wasn’t the first major advancement in firearms technology after all, and yet when single-shot cap and ball pistols were made outdated thanks to Samuel Colt and his repeating revolvers, there was no widespread attempt to ban them from the consumer market (though there were regulations on the manner in which they could be carried). Similarly, when the first repeating rifles came to market there was no hue and cry to ban them in the name of public safety or calls to remove these “battlefield weapons of war” from the hands of civilians. Heck, I can’t even find any evidence of a 19th century equivalent to Joe Biden complaining that “no one needs to load on Sunday and shoot all week long”, despite the introduction of a 16-round fixed magazine in early repeating rifles.

Unfortunately, we’ve seen lower courts play plenty of games with our right to keep and bear arms since the Heller decision was handed down, and I suspect that isn’t going to entirely change simply because SCOTUS has become more blunt in their directions to trial and appellate judges. The Fourth Circuit, for example, originally upheld Maryland’s ban on so-called assault weapons because they determined the semi-automatic rifles are “like” machine guns, which they said could be banned under the Heller decision.

It’s entirely possible that they’ll try to pull that same stunt again, but based on Thomas’ majority opinion, I don’t think the Court is going to have much patience for the judges (or anti-gun politicians) that continue to defy their ruling or the text, history, and tradition of our right to keep and bear arms. Justice may not come as swiftly as many gun owners would like, but I’m confident that it will be done.

New York Dems set to defy SCOTUS with new concealed carry laws

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New York legislators are expected to ram through new restrictions on the right to carry in Albany today, where Gov. Kathy Hochul has called them back for an “extraordinary session” to respond to last week’s Supreme Court ruling striking down the state’s “may issue” carry permitting regime. We don’t even have the text of the proposed legislation, yet multiple media outlets are reporting that Hochul could sign the legislation today. Lawmakers aren’t going to have time to read the bill or bills being proposed, much less digest what their real world impact will be, but that’s clearly less of a concern for them than doing anything and everything they can to continue to put roadblocks between New Yorkers and their Second Amendment rights.

While we don’t know all of the specifics of the legislation, the details that have emerged in interviews with Hochul are enough to foresee another court challenge on the horizon.

Businesses that want guns around would have to put up a sign reading, “Concealed weapons welcome here,” or words to that effect, Hochul said. “Otherwise the presumption will be in the state of New York that they are not.”

“We’re going to protect the rights of private property owners allow them to not have to be subjected to someone walking into their workplace or a bar, restaurant with a concealed weapon,” Hochul said.

The state is setting new requirements for getting a handgun permit, Hochul said, including mandating 15 hours of in-person fire range training. The legislature will also enact new rules around firearm storage in homes and vehicles, she said.

Hochul and fellow Democrats also plan on creating a comprehensive list of “sensitive places” where the average citizen will be banned entirely from carrying firearms, including government buildings, hospitals, schools and public transit.

The governor says the new anti-2A measures “go right up to the line” drawn by the Supreme Court, but that’s not the case at all. Hochul and the Democrats who vote for this legislative nightmare are blatantly disregarding what the Bruen opinion had to say about “sensitive places” as well as imposing onerous requirements beyond mandating that concealed carry applicants demonstrate a “justifiable need” to carry.

… expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense…

As Justice Clarence Thomas made clear, while there may be a few exceptional circumstances where the lawful carrying of firearms can be banned, those are the exceptions and not the rule. Hochul’s plan would not only make every business in the state a de-facto gun-free zone, but most public spaces, according to the governor, would be off-limits to those with valid concealed carry licenses.

Federal, state, local government buildings, health and medical facilities, places where children gather, day cares, parks, zoos, playgrounds, public transportation, subways, buses, polling places, educational institutions,” Hochul said.

The governor was asked if her proposal goes beyond what the Supreme Court will allow.

“It sounds like you’re shutting off all of the public places,” a reporter said.

“I can’t shut off all places,” Hochul said.

“So what would be left?” the reporter asked.

“Probably some streets,” Hochul said.

The intention is clear: to artificially suppress the number of individuals exercising their right to publicly carry arms for self-defense in defiance of the Supreme Court and the Constitution. That goes not only for Hochul’s attempt to turn most of the state into a gun-free zone, but also the new onerous and burdensome training requirements she wants to impose on those looking to exercise their right to carry. Fifteen hours of live-fire training is going to make it nearly impossible for many New Yorkers to obtain a license, simply because they won’t be able to afford the cost of ammunition. Range availability is also going to be a huge issue, and as Thomas specifically noted in his opinion, efforts to depress the number of individuals exercising their right to carry through “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry” can also be subject to constitutional challenges if they are put to “abusive ends.”

We’re going to be talking with Tom King, executive director of the New York State Rifle & Pistol Association later today on Bearing Arms’ Cam & Co about Hochul’s proposals and the litigation that is sure to follow. The New York governor may think she can ignore what the Court had to say about our Second Amendment rights, but if these ideas are enshrined into law another SCOTUS smackdown is almost certainly on the way.

California AG office's leak of gun owner info even worse than originally admitted

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The data leak from California Attorney General Rob Bonta’s office, originally reported to have been limited to the private and personal details of concealed carry permitees in the state, was far more extensive than his office first admitted.

Yesterday afternoon Bonta’s office acknowledged that in addition to the concealed carry records, which included the full names, home addresses, and drivers license numbers of all those who had applied for a concealed carry permit (not just those who were approved), other databases run by the AG’s office were also open and available to download for an unspecified amount of time this week.

On Wednesday, it was revealed that the exposures also extended to the Assault Weapon Registry, Handguns Certified for Sale, Dealer Record of Sale, Firearm Certificate Safety, and Gun Violence Restraining Order dashboards.

“This unauthorized release of personal information is unacceptable and falls far short of my expectations for this department,” said Attorney General Rob Bonta.

Bonta has launched an investigation into the data breach.

The DOJ shut down parts of its website once it learned about the breach.

“It’s concerning anytime information that specific is released to the public,” says Fresno County Sheriff Margaret Mims. “Of course, what we tell the public all the time is to protect your personal information.”

Mims says it’s also important for these gun owners to make sure their home is secure since home addresses were part of the breach.

Yeah, thanks to the “unauthorized release of personal information” the AG’s office has provided a shopping list for criminals who are looking to steal guns and ammunition, as well putting who knows how many gun owners at risk of being targeted by abusive ex-partners or criminal defendants who appeared before one of the hundreds of judges whose personal info was made available online. This is really bad, but Bonta, despite saying he’s “angry and deeply disturbed” by the data leak, seems to be fairly nonplussed about the fact that his office has, in essence, doxxed hundreds of thousands of Californians.

According to the Los Angeles Times, the leaked information amounts to an entire decade’s worth of data on gun owners and those who applied for a concealed carry permit.

The California State Sheriffs’ Assn. said it was “alarmed” to learn of the breach.

“It is infuriating that people who have been complying with the law have been put at risk by this breach,” said Butte County Sheriff Kory Honea, the association’s president. “California’s sheriffs are very concerned about this data breach and the risk it poses to California’s CCW permit holders.”

All California law enforcement agencies that issue concealed-carry permits are required to provide “certain information” about permit holders to the Justice Department, “which in turn is required to safeguard that information,” according to a statement by the sheriffs’ association.

“It appears that before the breach was detected by DOJ, the information was copied and at least some portion of it was posted on the internet,” the statement said.

Justice Department officials said the data were exposed for less than 24 hours.

The department had posted updates to the portal Monday afternoon and was later made aware “of a disclosure of personal information that was accessible in a spreadsheet on the portal,” the agency’s statement said. Officials removed the information from public view and shut down the firearms dashboard Tuesday morning.

So far the only recourse offered by the AG’s office for those whose personal information was exposed has been credit monitoring to protect against identity thieves. What about the actual thieves who now have the names and addresses of local gun owners in their areas thanks to the downloading and dissemination of this data? Will Bonta be offering any protection against those criminals?

It shouldn’t even be up to Bonta, honestly, because he should resign in disgrace over what the California Rifle & Pistol Association is calling a “massive violation of California law.”

The CRPA has put together a an updated timeline of the data leak as well as all new information that’s become available and a link for prospective plaintiffs to join any lawsuit filed by the 2A group in response to the AG’s exposure of their personal information. I would encourage every California gun owner to get involved in this effort, as well as encouraging those of us who thankfully don’t have to live under the state’s anti-Second Amendment regime to kick in some cash to the state-level groups fighting for accountability for the officials who’ve put gun owners at risk.

This should also be Exhibit A the next time gun control groups in your state start talking about the “need” for gun registries, licensing, and yes, even “red flag” laws. Beyond the obvious constitutional issues with those databases, the California Attorney General has shown us just how easy it is for all of this information to be leaked online, and gun owners have no reason to believe that their own officials would do any better at keeping this information safe and secure.