March 26th, 2016

U.S. Supreme Court Confirms Broad Scope of Second Amendment

Second Amendment gun rights supreme court scotus dean weingarten massachusetts stun gun

Commentary by Dean Weingarten, Gun Watch
In an historic, but extremely short unanimous opinion, the United States Supreme Court has confirmed that the Second Amendment applies “to all instruments that constitute bearable arms,”. As this is an enormous class of nearly all weapons, the decision [could be] applied to knives and clubs, and nearly all firearms that have been sold in the United States. Nearly all types of firearms are more common than stun guns. From nbcnews.com:

“But in an unsigned opinion, the U.S. Supreme Court [on 3/21/2016] vacated that ruling. It said the Massachusetts court improperly found that Second Amendment protection applies only to weapons that were in common use at the time of the nation’s founding.”

Referring to its landmark 2008 D.C. v. Heller ruling on handguns in the home, the justices said the Second Amendment applies “to all instruments that constitute bearable arms,” even those not in existence at the time of the founding.

The unsigned opinion is very short[.] Alito writes a much longer and more forceful opinion in concurrence. It could, and should, have gone much further. None the less, it is an enormous win for Second Amendment supporters, and it extends far beyond stun guns and Massachusetts.

There is strong language in this opinion. If 200,000 stun guns in the U.S. are “common”, it is hard to believe that 5 million AR-15s and millions of other semi-automatic rifles are “unusual”.

The case lays to rest the idea that courts can simply say anything other than handguns are “uncommon” or “unusual” and are therefore exempt from Second Amendment protections. This case will be cited far into the future.

The full, unanimous decision, along with Justice Alito’s lengthy concurrence, is found via this LINK:

14-10078 Caetano v. Massachusetts (PDF)

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included. Link to Gun Watch

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February 25th, 2014

U.S. Supreme Court Declines to Review Firearms Cases

U.S. Supreme Court Second Amendment Challenge young adultsThe U.S Supreme Court has declined to review two cases involving handguns and young adults in the 18 to 20 year-old age bracket. The first case, NRA v. Bureau of Alcohol, Tobacco and Firearms, challenged a 1968 law which prohibits FFLs from selling handguns to any person under 21 (including adults 18, 19, and 20 years of age). Arguing that the Second Amendment protects all adult citizens, Petitioners argued that restrictions should be lifted for legal adults over 18 but under 21 years of age. The other case, NRA v. McCraw, sought to over-turn various Texas laws that prevent 18 to 20 year-olds from getting a handgun carry license.

Gun-rights activists have been pressing the nation’s highest court to accept the cases. Those advocates have cited various courts’ resistance to expanding gun ownership rights following the Supreme Court’s decision in 2008 in the Heller case that there is a Constitutional right to gun ownership for self-defense and in 2010 in the McDonald case that found the right applies to state and local gun-control efforts.

Writing in the SCOTUS Blog, Lyle Denniston observes:

The Supreme Court refused on [February 24, 2014], as it has done repeatedly in recent years, to settle the issue of whether Second Amendment rights to have a gun extend beyond the home. Since the Court first ruled nearly six years ago that the Second Amendment protects a personal right to have a gun, it has issued only one further ruling — expanding that right so that it applies nationwide, to state and local gun control laws, as well as to federal laws. But, without exception, the Justices have turned aside every potential sequel, essentially leaving it to lower courts to continue to sort out variations on the right.

One thing seemed clear from the denial of review of two of the new cases, the NRA’s challenges: the Court is not, as yet, ready to stop lower courts from creating an entirely new group in society with less than full gun rights. In those cases, it was youths aged eighteen to twenty years old.

Credit G. Salazar for story tip. We welcome reader submissions.
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October 22nd, 2013

U.S. Supreme Court Will Decide Firearms ‘Straw Purchaser’ Case

U.S. Supreme Court seal logo scotusThe U.S. Supreme Court has agreed to adjudicate a case involving a firearms purchase and subsequent resale to a family member. The case of Abramski v. United States, arises from the prosecution of Bruce James Abramski, Jr., a former Virginia police officer, for allegedly making a “straw purchase” of a Glock handgun. Abramski had lawfully purchased a Glock pistol in Virginia, then later resold the Glock to his uncle, a resident of Pennsylvania. Both purchases were conducted through FFLs, with full background checks, and both parties were legally entitled to own a handgun. Abramski arranged the sale in this fashion to take advantage of a discount available to him as a law enforcement officer.

Abramski was indicted and prosecuted for violating Federal laws against “straw purchases”, specifically making a false declaration on BATFE Form 4473, which is a violation of 18 U.S.C. § 922(a)(6). Abramski challenged the indictment, but the District Court ruled against him and the U.S. Fourth Circuit Court of Appeals upheld the District Court’s decision. However, the Fourth Circuit acknowledged that there was a split of authority among the Circuits as to whether § 922(a)(6) applied in a case like this one, where the ultimate recipient of the firearm was lawfully entitled to buy a gun himself. The Fourth Circuit’s ruling conflicts with previous decisions by the Fifth Circuit holding that “straw purchaser” laws are NOT violated if both the original purchaser and secondary buyer are legally entitled to own a firearm. See United States v. Polk, 118 F.3d 286 (5th Cir. 1997).

U.S. Supreme Court seal logo scotusThe key issue is whether Abramski committed a crime by buying a gun, and then promptly re-selling it to another person who was legally entitled to own the firearm. The government argues that Abramski broke the law when he checked a box on Form 4473 indicating he was the “actual transferee/buyer of the firearm”.

Arguably, Abramski’s purchase and subsequent resale did not violate the intent of the law, since the Glock never ended up in the hands of a criminal (or someone who was otherwise barred from gun ownership). The John Floyd Law Firm explains this argument:

“Attorneys for Abramski sought to have the indictment dismissed on the legal premise that because Abramski and the uncle were both legally entitled to purchase a firearm, Abramski could not be a ‘straw purchaser.’ Attorneys further argued that Abramski’s ‘yes’ answer to question 11(a) on the 4473 that he was actual buyer of the Glock was never intended to be punished under the Gun Control Act of 1968 if the buyer had a legal right to purchase the weapon. The attorneys theorized that the intent of Congress in passing this Act was ‘to make it possible to keep firearms out of the hands of those not legally entitled to possess them.’

Second Amendment proponents strongly believe there is nothing wrong with a nephew purchasing a weapon he is legally entitled to purchase with the specific intent to sell it to an uncle who is also legally entitled to purchase a weapon. The Fifth Circuit says such a purchase is legal because both parties are legally entitled to purchase and possess a firearm. The Sixth and Eleventh Circuits [and now the Fourth Circuit] say these legal entitlements do not matter.”

Soon the U.S. Supreme Court will decide which interpretation of the law is correct.

CLICK LINKS Below to Read Briefs Filed in Abramski v. U.S.

Date Proceedings and Orders
Jun 21 2013 Petition for a writ of certiorari filed.
Jul 25 2013 Brief amici curiae of Steve Stockman, et al. filed.
Jul 25 2013 Brief amicus curiae of NRA Civil Rights Defense Fund filed.
Aug 26 2013 Brief of respondent United States in opposition filed.
Sep 9 2013 Reply of petitioner Bruce James Abramski, Jr. filed.
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March 2nd, 2010

After the Argument — Supreme Court Appears to Favor Extension of Second Amendment

SCOTUSLyle Denniston, reporter for the Scotus (Supreme Court of the United States) Blog, attended the oral argument in McDonald v. Chicago (Docket 08-1521) this morning. Analyzing the comments and questions of the Justices, Denniston concluded that the High Court is very likely to extend the Second Amendment to state and municipal actions, on the basis of the Due Process Clause of the 14th Amendment. However, the Justices were skeptical of the argument that “incorporation” of the Second Amendment was likewise mandated by the “privileges and immunities” section of the 14th Amendment.

CLICK HERE for transcript of Oral Argument
(PDF file, 77 pages, 342kb).

Denniston writes: “The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.”

During the course of the oral argument, the Justices disagreed as to the scope of the Second Amendment — whether it should be limited to a “core right” of self-defense or whether it could be applied much more broadly in future cases. The Scotus Blog explained: “The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. found all members of the Court actively involved except the usually silent Justice Clarence Thomas. And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a strong of likely precedents coming as time went on.”

We recommend that those interested in Second Amendment issues read the full Scotus Blog Entry, which includes detailed explanations of the key arguments, and analyses of how individual justices stand on the question of how the Second Amendment should be applied to the States — i.e. whether broadly or narrowly.

CLICK HERE to read SCOTUS BLOG re McDonald v. Chicago.

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March 10th, 2009

U.S. Supreme Court Rejects NYC Lawsuit vs. Gun-Makers

U.S. Supreme CourtPutting an end to nine years of litigation, the U.S. Supreme Court refused to hear New York City’s request to continue a lawsuit that sought to hold firearms manufacturers responsible for the criminal misuse of firearms. Among the companies sued were Beretta USA Corp., Smith & Wesson Holding Corp., Colt’s Manufacturing Co. LLC, Sturm, Ruger & Co. and Glock GmbH.

“We are very pleased by today’s ruling by the U.S. Supreme Court to not review lower appellate court rulings that dismissed cases based on the Protection of Lawful Commerce in Arms Act,” said Steve Sanetti, president of the National Shooting Sports Foundation. “These baseless lawsuits against responsible, law-abiding companies are the type that Congress intended to prevent by passing the Protection of Lawful Commerce in Arms Act.”

The city’s lawsuit was originally filed in 2000 by Mayor Rudolph Giuliani and was continued by Mayor Michael Bloomberg. After the Protection of Lawful Commerce in Arms Act was passed by Congress in 2005, a federal judge threw out the New York lawsuit. Then in April of 2008, the 2nd U.S. Circuit Court of Appeals upheld that decision, saying the new law was constitutional. New York City’s final recourse was to appeal to the U.S. Supreme Court, but on March 9th the High Court refused the case.

LINK to N.Y. Times Report on NYC Gun Litigation.

This report is provided by the NSSF.

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