This week, a federal judge ruled that a major provision of New Jersey's "assault weapon" ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court's Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control.

New Jersey's Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, California, elementary school the previous year—bans a list of specific rifle models, along with "any firearm manufactured under any designation which is substantially identical to any of the firearms listed above." According to guidelines that New Jersey Attorney General Peter Verniero issued in 1996, the latter description encompasses semi-automatic rifles that accept detachable magazines and have at least two of five features: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate one, or a grenade launcher. Illegal possession of "assault firearms" is a second-degree crime punishable by five to 10 years in prison and a maximum fine of $150,000.

In separate lawsuits that U.S. District Judge Peter Sheridan considered together, several gun owners and two gun rights groups, the Firearms Policy Coalition (FPC) and the Association of New Jersey Rifle and Pistol Clubs (ANJRPC), argued that the rifle ban is unconstitutional. Sheridan's decision in ANJRPC v. Platkin focuses on the Colt AR-15, one of the specifically banned rifles, because it was the model mentioned most frequently by the plaintiffs and the state.

"The information presented to the Court focuses largely on one specific type of firearm: the AR-15," Sheridan writes. "And given the variety of firearms regulated in the Assault Firearms Law and the nuances that each individual firearm presents, the Court's analysis of the Assault Firearms Law is limited to the firearm with which the Court has been provided the most information: the AR-15."

Sheridan, a senior judge who was appointed to the U.S. District Court for the District of New Jersey by George W. Bush in 2005, repeatedly refers specifically to "the Colt AR-15." But he also notes that "the AR-15 is produced by several different manufacturers," including FN, Ruger, Remington, Bushmaster, Rock River Arms, Wilson Combat, Barrett, Panther Arms, H&K, Lewis Machine, Olympic Arms, Palmetto State Armory, and Mossberg. So his conclusion that "the AR-15 Provision is unconstitutional" evidently applies to all AR-15-style rifles, regardless of who makes them or what they are officially called.

Before explaining his reasoning in reaching that conclusion, Sheridan expresses his dismay at the Supreme Court precedents he is required to follow. "It is hard to accept the Supreme Court's pronouncements that certain firearms policy choices are 'off the table' when frequently, radical individuals possess and use these same firearms for evil purposes," he says. "Even so, the Court's decision today is dictated by one of the most elementary legal principles within our legal system: stare decisis. That is, where the Supreme Court has set forth the law of our Nation, as a lower court, I am bound to follow it. This principle—combined with the reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation—necessitates the Court's decision."

Despite his personal policy preferences, Sheridan thinks it is clear that the AR-15 qualifies as a weapon "in common use" for "lawful purposes like self-defense"—the sort of arms that the Supreme Court has said are covered by the Second Amendment. He notes a 2022 estimate that Americans owned about 24 million "AR-15s and similar sporting rifles," and he highlights testimony that such guns are useful for home defense.

"Plaintiffs have shown that AR-15s are well-adapted for self-defense," Sheridan writes. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'" He adds that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he notes that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."

Those points should be disregarded, the state argued, because handguns are a more popular choice for self-defense and one that New Jersey allows. But as Sheridan notes, the Supreme Court's decision in the landmark 2008 case District of Columbia v. Heller, which overturned a local handgun ban, explicitly rejected that sort of argument. "It is no answer to say…that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed," Justice Antonin Scalia wrote in the majority opinion. "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon."

Like the law at issue in Heller, "the Assault Firearms Law's AR-15 Provision acts effectively as the total prohibition on a commonly used firearm for self-defense—AR-15s—within the home," Sheridan writes. And under Heller, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," Sheridan says, "the AR-15 Provision of the Assault Firearms Law is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."

Sheridan reached a different conclusion regarding another provision of New Jersey's Assault Firearms Law that the plaintiffs also challenged: the ban on "large capacity magazines" (LCMs). Legislators originally defined LCMs as magazines that hold more than 15 rounds but reduced the limit to 10 rounds in 2018. That restriction, Sheridan says, is "consistent with this Nation's historical tradition of firearm regulation"—the test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

Sheridan acknowledges that the U.S. Court of Appeals for the 3rd Circuit, which includes New Jersey, has recognized ammunition as "arms" within the meaning of the Second Amendment. But he thinks the LCM ban differs from the AR-15 ban in a crucial way.

"The LCM Amendment passes constitutional muster because although the Second Amendment right is implicated, this regulation is in line with the historical regulations within the tradition of our Nation," Sheridan writes. "Put more precisely, the reduction of capacity is a limitation on firearms ownership. It is not a categorical ban preventing law-abiding citizens from exercising their Second Amendment rights [with] a weapon that is in common use for self-defense."

Sheridan notes that "detachable magazines did not exist in the Founding period" and that "it was not until the mid-l800s that patents for magazines falling within the definition of the LCM Amendment began appearing in the historical record." While "rifles capable of holding more than ten rounds became available" in the 1860s, he adds, "the magazine was fixed." And "despite the issuance of a patent for detachable magazines in 1864, firearms with detachable magazines were not widely available until the end of the Nineteenth Century."

Magazines that could hold more than 10 rounds, Sheridan notes, "did not exist in 1791," when the Second Amendment was ratified, and "were not widely available in 1868," when the 14th Amendment required states to respect the right to arms. He says it therefore would be plainly unreasonable to demand that New Jersey "locate a statute or regulation from that time" that closely resembles its LCM ban.

In Bruen, Sheridan writes, the Supreme Court "noted that current regulations may implicate either 'unprecedented societal concerns' or 'dramatic technological changes' different from those that existed when the Second Amendment was ratified in 1791 or when the Fourteenth Amendment was ratified in 1868. In those circumstances, 'a more nuanced approach' to determine if historical regulations are 'relevantly similar' to the currently challenged regulations must be utilized based on two measurements: 'how and why the regulations burden a law-abiding citizen's right to armed self-defense.'"

Sheridan thinks the LCM ban's "how" is "relevantly similar" to the scope of historical restrictions on pistols and Bowie knives. "The LCM Amendment places a burden on self-defense that is comparable to the burden imposed by the historical analogues," he says. "Like these restrictions, the LCM Amendment is…a restriction responding to safety concerns present in our time."

As for the LCM ban's "why," Sheridan says, there is evidence that LCMs "increase the lethality of mass shooting events." In recent years, he notes, magazines holding over 10 rounds often have been used in mass shootings, including "all" such crimes from 2019 through 2022.

The "stated purpose" of New Jersey's LCM ban, which is to "effectively slow down a mass shooter," is "well-served" by that restriction, Sheridan writes. "A limitation on magazine capacity stops the rate at which victims can be injured," he says, and "allows for time during which a shooter may be intercepted, interrupted, or hopefully, stopped." While "such a problem" may be "new to us," he adds, it is "analogous to other safety issues presented by [weapons] commonly used…for lawful purposes confronted by our Nation in the past."

Sheridan, who decries the "alarming frequency" of mass shootings, never acknowledges that they remain rare compared to other kinds of lethal crime. Based on the commonly used definition of mass shootings as public attacks that kill four or more people, they account for around 1 percent of homicides committed with guns. And while Sheridan implies that mass shootings are on the rise, the RAND Corporation notes that "chance variability in the annual number of mass shooting incidents makes it challenging to discern a clear trend" and that "trend estimates are sensitive to outliers and to the time frame chosen for analysis."

Sheridan nevertheless decries the "reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation," which both exaggerates the frequency of these crimes and takes for granted that they could be prevented if only politicians tried hard enough. In addition to a lack of political will, Sheridan implicitly blames the Supreme Court for saying that the Second Amendment puts some gun restrictions "off the table." Yet despite these views, he felt constrained to reject New Jersey's AR-15 ban.

At the same time, Sheridan was curiously reticent to extend his analysis by considering the illogic of banning "substantially identical" rifles and defining that category based on an arbitrary set of features. With or without those features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Does it make any sense, for example, to expect that banning rifles with both folding stocks and threaded barrels would have any noticeable impact on mass shooting deaths, let alone homicide generally?

While Sheridan's concern about the use of LCMs in mass shootings is more plausible, it is based on an inconclusive correlation. The public safety benefit of banning them is speculative, and Sheridan did not even consider the argument that the ability to fire more than 10 rounds without changing magazines can be important in some self-defense situations—a point that legislators take for granted when they exempt current and former police officers from magazine restrictions.

The FPC plans an appeal to the 3rd Circuit, which it wants to "address legal deficiencies in [Sheridan's] opinion," and "seek the full relief" that the plaintiffs requested. "Bans on so-called 'assault weapons' are immoral and unconstitutional," says FPC President Brandon Combs. "FPC will continue to fight forward until all of these bans are eliminated throughout the United States."

The post A Federal Judge Reluctantly Concludes That New Jersey's AR-15 Ban Is Unconstitutional appeared first on Reason.com.

A federal law that Congress enacted in 1994 prohibits gun possession by people subject to domestic violence restraining orders. Since that seems like a no-brainer, many people were dismayed when the U.S. Court of Appeals for the 5th Circuit deemed that provision unconstitutional last year in United States v. Rahimi. But as anyone who reads the majority and concurring opinions in that case can see, there is a striking problem with 18 USC 922(g)(8): It disarms people even when there is little or no evidence that they pose a danger to others.

In an 8–1 decision today, the Supreme Court avoided that issue by noting that the man who challenged his prosecution under Section 922(g)(8), Zackey Rahimi, is a bad dude with an extensive history of violence, including violence against his girlfriend. As applied to people like Rahimi, Chief Justice John Roberts says in the majority opinion, the law is "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.

"When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect," Roberts says. The decision does not address the question of whether it is consistent with the Second Amendment to disarm someone without such a judicial finding.

Noting that Rahimi raised a facial challenge, Roberts faults the 5th Circuit for focusing on "hypothetical scenarios where Section 922(g)(8) might raise constitutional  concerns" instead of "consider[ing] the circumstances in which Section 922(g)(8) was most likely to be constitutional." That error, he says, "left the panel slaying a straw man."

As 5th Circuit Judge James Ho emphasized in his Rahimi concurrence, that "straw man" is not merely hypothetical. The "constitutional concerns" to which Roberts alludes derive from the statute's loose requirements for court orders that trigger the gun ban. Under Section 922(g)(8), a restraining order must include at least one of two elements, one of which sweeps broadly enough to encompass individuals with no history of violence or threats.

The first, optional element—a judicial finding that the respondent "represents a credible threat to the physical safety" of his "intimate partner" or that person's child—provides some assurance that the order addresses a real danger, especially since the law requires a hearing in which the respondent has "an opportunity to participate." As Roberts notes, the order against Rahimi included such a finding. But the second, alternative criterion—that the order "by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury"—can be met by the boilerplate language of orders that are routinely granted in divorce cases, whether or not there is good reason to believe the respondent is apt to assault anyone.

In his Rahimi concurrence, Ho noted that protective orders are "often misused as a tactical device in divorce proceedings" and "are granted to virtually all who apply." They are "a tempting target for abuse," he said, and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."

In the lone dissent from today's decision, Justice Clarence Thomas likewise notes how easily someone can lose his right to arms under Section 922(g)(8). The provision "does not require a finding that a person has ever committed a crime of domestic violence," he writes. It "is not triggered by a criminal conviction or a person's criminal history." And it "does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order."

Furthermore, Thomas says, the law "strips an individual of his ability to possess firearms and ammunition without any due process," since "the ban is an automatic, uncontestable consequence of certain orders." The Cato Institute made the same basic point about due process in a brief supporting Rahimi's challenge.

Although a hearing is required for the restraining order itself, Thomas notes, "there is no hearing or opportunity to be heard on the statute's applicability, and a court need not decide whether a person should be disarmed under §922(g)(8)." He also points out that the penalties for violating the provision are severe: up to 15 years in prison, plus permanent loss of gun rights based on the felony conviction.

Roberts, who criticizes the 5th Circuit for requiring a "historical twin" rather than a "historical analogue" under the Bruen test, sees precedent for Section 922(g)(8) in "surety" laws that required threatening people to post bonds, which they would forfeit if they became violent. But Thomas does not think those laws are "relevantly similar" to the provision that Rahimi violated.

"Surety laws were, in a nutshell, a fine on certain behavior," Thomas writes. "If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden."

In particular, Thomas says, "a surety demand did not alter an individual's right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime." Thomas thinks the government "has not shown that §922(g)(8)'s more severe approach is consistent with our historical tradition of firearm regulation."

Roberts, by contrast, says a prosecution under Section 922(g)(8) can be consistent with that tradition, at least when a judge concludes that someone "poses a credible threat to the physical safety of an intimate partner." The constitutionality of applying Section 922(g)(8) in cases where there was no such finding remains uncertain. Some Second Amendment scholars, such as the Independence Institute's David Kopel, argue that the provision would be constitutional if it were amended to require a finding of dangerousness.

The Court did clarify an important point in a way that could bode well for other challenges to the broad categories of "prohibited persons" who are not allowed to possess firearms, such as cannabis consumers and other illegal drug users. The majority rejected the Biden administration's position that only "responsible" people qualify for Second Amendment rights.

"We reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible,'" Roberts writes. "'Responsible' is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law."

In Bruen and in District of Columbia v. Heller, the 2008 case in which the Court first explicitly recognized that the Second Amendment guarantees an individual right to armed self-defense, Roberts notes, "we used the term 'responsible' to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right….But those decisions did not define the term and said nothing about the status of citizens who were not 'responsible.' The question was simply not presented."

The post SCOTUS Dodges a Crucial Problem With Disarming People Based on Restraining Orders appeared first on Reason.com.

In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman scrutinize President Joe Biden's executive order updating asylum restrictions at the U.S.-Mexico border in response to illegal border crossings.

01:32—Biden's new asylum restrictions

21:38—The prosecution of political opponents: former President Donald Trump, Hunter Biden, and Steve Bannon

33:25—Weekly Listener Question

39:56—No one is reading The Washington Post

48:09—This week's cultural recommendations

Mentioned in this podcast:

"Biden Announces Sweeping Asylum Restrictions at U.S.-Mexico Border" by Fiona Harrigan

"Biden's New Asylum Policy is Both Harmful and Illegal" by Ilya Somin

"Travel Ban, Redux" by Josh Blackman

"Immigration Fueled America's Stunning Cricket Upset Over Pakistan" by Eric Boehm

"Libertarian Candidate Chase Oliver Wants To Bring Back 'Ellis Island Style' Immigration Processing" by Fiona Harrigan

"Donald Trump and Hunter Biden Face the Illogical Consequences of an Arbitrary Gun Law" by Jacob Sullum

"Hunter Biden's Trial Highlights a Widely Flouted, Haphazardly Enforced, and Constitutionally Dubious Gun Law" by Jacob Sullum

"Hunter Biden's Multiplying Charges Exemplify a Profound Threat to Trial by Jury" by Jacob Sullum

"The Conviction Effect" by Liz Wolfe

"Laurence Tribe Bizarrely Claims Trump Won the 2016 Election by Falsifying Business Records in 2017" by Jacob Sullum

"A Jumble of Legal Theories Failed To Give Trump 'Fair Notice' of the New York Charges Against Him" by Jacob Sullum

"Does Donald Trump's Conviction in New York Make Us Banana Republicans?" by J.D. Tuccille

"The Myth of the Federal Private Nondelegation Doctrine, Part 1" by Sasha Volokh

"Federal Court Condemns Congress for Giving Unconstitutional Regulatory Powers to Amtrak" by Damon Root

"Make Amtrak Safer and Privatize It" by Ira Stoll

"Biden Threatens To Veto GOP Spending Bill That Would 'Cut' Amtrak Funding to Double Pre-Pandemic Levels" by Christian Britschgi

"This Company Is Running a High-Speed Train in Florida—Without Subsidies" by Natalie Dowzicky

"Do Not Under Any Circumstances Nationalize Greyhound" by Christian Britschgi

"With Ride or Die, the Bad Boys Movies Become Referendums on Masculinity" by Peter Suderman

"D.C. Water Spent Nearly $4,000 On Its Wendy the Water Drop Mascot" by Christian Britschgi

Upcoming Reason Events:

Reason Speakeasy: Corey DeAngelis on June 11 in New York City

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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The post Partisan Border Wars appeared first on Reason.com.

Last Thursday, a federal judge in Delaware rejected Hunter Biden's Second Amendment challenge to the three gun charges he faces for buying a revolver in October 2018, when he was a crack cocaine user. In a 10-page order, U.S. District Marylellen Noreika concludes that 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms, is not unconstitutional on its face, meaning there are at least some cases in which the provision can be enforced without violating the right to keep and bear arms.

Noreika's decision does not end a constitutional dispute that pits Biden against his own father, who has steadfastly defended a policy that could send his son to prison. That policy denies Second Amendment rights to millions of Americans with no history of violence, including cannabis consumers, whether or not they live in states that have legalized marijuana.

Noreika's ruling leaves the door open to an "as-applied" challenge if and when Biden is convicted, meaning he can still argue that his prosecution violates the Second Amendment at that point. That claim may ultimately be resolved by the U.S. Court of Appeals for the 3rd Circuit, which has yet to address the constitutionality of Section 922(g)(3) under the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.*

If Biden is convicted and his appeals are unsuccessful, he could face a substantial prison sentence. When he bought his gun, violations of Section 922(g)(3) were punishable by up to 10 years in prison. The Bipartisan Safer Communities Act, which his father signed into law in 2022, raised the maximum penalty to 15 years. But even though Congress views gun ownership by illegal drug users as a serious crime, it is rarely prosecuted. While survey data suggest that millions of gun owners are guilty of violating Section 922(g)(3), fewer than 150 Americans are prosecuted for that offense each year.

The two other gun charges that Biden faces, which are based on the same transaction, likewise are rarely prosecuted. One alleges a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction. The other involves 18 USC 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record.

Both charges are based on the same conduct: Biden checked "no" in response to a question on Form 4473, which is required for gun purchases from federally licensed dealers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" That check mark, according to federal prosecutors, qualified as two felonies, punishable by a combined maximum prison sentence of 15 years. Although actual sentences tend to be much shorter than the maximums, Biden theoretically faces up to 25 years in prison for conduct that violated no one's rights.

Biden argued that Section 922(g)(3) fails the Bruen test, which requires the government to show that a gun law is "consistent with this Nation's historical tradition of firearm regulation." He added that the ancillary charges also should be dismissed because they would not be possible but for Section 922(g)(3).

In rejecting Biden's motion to dismiss, Noreika relies heavily on a recent decision by the U.S. Court of Appeals for the 8th Circuit. Last month in United States v. Veasley, the 8th Circuit rejected a facial challenge to Section 922(g)(3), citing the legal treatment of "the mentally ill" in the 18th and 19th centuries.

In the 18th century, the appeals noted, justices of the peace were empowered to order the confinement of "lunatics" who were deemed a threat to public safety. Since such confinement "did not include access to guns," the court reasoned, it was clear that "lunatics" had no such rights. And by the late 19th century, states had begun to prohibit gun sales to people of "unsound mind." Together with "the even longer tradition of confinement," the 8th Circuit said, "these laws suggest that society made it a priority to keep guns out of the hands of anyone who was mentally ill and dangerous."

Those precedents, the appeals court said, amply justify Section 922(g)(3): "The 'burden' imposed by § 922(g)(3) is 'comparable,' if less heavy-handed, than Founding-era laws governing the mentally ill. It goes without saying that confinement with straitjackets and chains carries with it a greater loss of liberty than a temporary loss of gun rights. And the mentally ill had less of a chance to regain their rights than drug users and addicts do today. Stopping the use of drugs, after all, restores gun rights under § 922(g)(3)." The court thought the justification for Section 922(g)(3), "which is to 'keep guns out of the hands of presumptively risky people,'" is "also comparable."

The 8th Circuit assumed that drug users are analogous to "lunatics" and people of "unsound mind" who are "mentally ill and dangerous." But the U.S. Court of Appeals for the 5th Circuit rejected that analogy last year, when it overturned the Section 922(g)(3) conviction of Patrick Darnell Daniels Jr., a Mississippi man who was caught with a gun and the remains of a few joints after he was pulled over for driving without a license plate in April 2022.

"Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence," the 5th Circuit said in United States v. Daniels. "The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically 'insane' person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness."

Noreika also cites district court decisions that accepted the Justice Department's analogy between Section 922(g)(3) and early laws that made it a crime to publicly carry or discharge firearms while intoxicated. But the 5th Circuit rejected that analogy, and so did the 8th Circuit.

As both courts noted, those historical laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.

"Under the government's reasoning," the 5th Circuit said, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."

The 8th Circuit reached a similar conclusion. "For drinkers, the focus was on the use of a firearm, not its possession," it noted. "And the few restrictions that existed during colonial times were temporary and narrow in scope." It added that "there was even less regulation when it came to [other] drugs," which were widely available without a prescription in the 19th century.

"The government concedes that its 'review of early colonial laws has not revealed any statutes that prohibited [firearm] possession' by drug users," the 8th Circuit noted. "It took until 1968, with the passage of § 922(g)(3), for Congress to keep guns away from drug users and addicts….The fact that 'earlier generations addressed the societal problem…through materially different means [is] evidence that' disarming all drug users, simply because of who they are, is inconsistent with the Second Amendment."

Since it viewed the comparison between Section 922(g)(3) and laws aimed at preventing drunken gun handling as problematic, the 8th Circuit instead relied on the comparison between drug users and people who are "mentally ill and dangerous." It also invoked "the Founding-era criminal prohibition on taking up arms to terrify the people."

The 8th Circuit conceded that "not every drug user or addict will terrify others, even with a firearm." It is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others." But "those are details relevant to an as-applied challenge, not a facial one," the court added. "For our purposes, all we need to know is that at least some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms."

Noreika emphasizes that the 5th Circuit characterized Daniels as upholding an "as-applied" challenge. "We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels," the appeals court said. Noreika concludes that Daniels therefore provides no support to Biden's challenge. The 5th Circuit's reasoning nevertheless casts doubt on the notion that illegal drug users, as a class, are so dangerous that they have no Second Amendment rights.

Noreika finds that "the overwhelming weight of the district courts lends no support to Defendant's position either." But she notes three decisions in which federal judges concluded that Section 922(g)(3) charges were unconstitutional.

United States v. Harrison, decided in February 2023, involved an Oklahoma marijuana dispensary employee who was pulled over on his way to work for failing to stop at a red light in May 2022. Police found marijuana and a loaded revolver in his car. U.S. District Judge Patrick Wyrick dismissed a Section 922(g)(3) charge, rejecting the government's contention that "Harrison's mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."

United States v. Connelly, decided two months later, involved a Texas woman who was charged with illegal possession of firearms after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. U.S. District Judge Kathleen Cardone concluded that Section 922(g)(3) "does not withstand Second Amendment scrutiny."

U.S. Magistrate Judge Robert Numbers reached the same conclusion that July in United States v. Alston, which also involved a marijuana user charged with violating Section 922(g)(3). "The government has failed to establish that historical laws regulating the mentally ill, the intoxicated, or the dangerous are sufficiently analogous to § 922(g)(3)," Numbers wrote. "The founding-era laws the government offers sought to remedy different problems than § 922(g)(3) does, and they did so through less-restrictive means. Taken together, the historical examples discussed above are not analogous enough to § 922(g)(3) to establish the statute's constitutionality." Last October, U.S. District Judge Louise Flanagan agreed that "the government has not met its burden of proving that § 922(g) is consistent with the Second Amendment."

Although Noreika describes only that last decision as upholding a facial challenge, Cardone's conclusion that Section 922(g)(3) "does not withstand Second Amendment scrutiny" went further than deeming a specific prosecution unconstitutional, and all three decisions rejected the government's historical analogies in no uncertain terms. Furthermore, all of these cases were resolved before trial, as Biden sought to do in his case.

Why does Noreika say that remedy is not available to Biden? "Defendant argues that § 922(g)(3) is unconstitutional under the revised framework announced in Bruen because there is no 'historical precedent for disarming citizens based on their status of having used a controlled substance,'" she writes. "Because Defendant makes no arguments specifically tailored to him or the application of § 922(g)(3) to his facts, Defendant's challenge to the constitutionality of § 922(g)(3) is a facial one….To the extent that Defendant seeks in his motion to raise a challenge to the constitutionality of § 922(g)(3) as applied to him, that request is denied without prejudice to renew on an appropriate trial record."

As Noreika sees it, in other words, Biden has to be convicted before he can challenge his prosecution. But no matter what happens with this particular case, the Biden administration's dogged defense of Section 922(g)(3), especially as applied to cannabis consumers, belies the president's repudiation of the hardline anti-drug position that he took for decades as a senator.

Nowadays, Biden says marijuana use should not be treated as a crime and decries the disadvantages associated with marijuana possession convictions. But his Justice Department simultaneously insists that marijuana use makes people so dangerous that they cannot be trusted with guns—so dangerous, in fact, that they should go to prison for trying to exercise their Second Amendment rights. The government claims that judgment is supported by historical precedents that bear little resemblance to a 1968 law that categorically deprives people of the right to arms for no good reason.

*Correction: This paragraph has been revised to clarify the timing of Biden's possible appeal.

The post Here Is Why a Federal Judge Rejected Hunter Biden's Second Amendment Challenge to His Gun Charges appeared first on Reason.com.

Dennis Powanda and Vincent Yakaitis are bound together by a common experience: They were both criminally charged in connection with an attempted burglary. Powanda was the burglar, and Yakaitis was the property owner.

Ah, justice.

Indeed, that's not a misprint, parody, or a bad joke (although I wish it were the latter). Powanda was arrested and charged with criminal trespass and burglary, along with other related offenses, for executing the botched raid a little before 2:00 a.m. in February 2023 at Yakaitis' property in Port Carbon, Pennsylvania. The government charged Yakaitis, who is in his mid-70s, with using a firearm without a license after he shot Powanda, despite that it appears prosecutors agree Yakaitis justifiably used that same firearm in self-defense.

Whatever your vantage point—whether you care about criminal justice reform and a fair legal system, or gun rights, or all of the above—it is difficult to make sense of arresting and potentially imprisoning someone over what essentially amounts to a paperwork violation. That injustice is even more glaring when considering that Powanda, 40, allegedly charged at Yakaitis, who happens to be about three and a half decades older than Powanda.

Pennsylvania's permitting regime does carve out a couple of exceptions, one of which would seem to highly favor Yakaitis. Someone does not need a license to carry, according to the law, "in his place of abode or fixed place of business." Yakaitis owned the home Powanda attempted to burglarize. The catch: He didn't live there—it reportedly had no tenants at the time of the crime—opening a window for law enforcement to charge him essentially on a technicality.

If convicted, Yakaitis faces up to five years in prison and a $25,000 fine. Quite the price to pay for protecting your life on your own property. The misdemeanor charge also implies that Yakaitis has no history of using his weapon inappropriately, or any criminal record at all, as Pennsylvania law classifies his particular crime—carrying a firearm without a license—as a felony if the defendant has prior criminal convictions and would be disqualified from obtaining such a license. In other words, we can deduce that Yakaitis was a law-abiding citizen and eligible for a permit, which means he is staring down five years in a cell for not turning in a form and paying a fee to local law enforcement. OK.

Yakaitis is not the first such case. In June, law enforcement in New York charged Charles Foehner with so many gun possession crimes that if convicted on all of them he would face life in prison. Police came to be aware of his unlicensed firearms when Foehner defended himself against an attempted mugger—the surveillance footage is here—after which they searched Foehner's home and found that only some of his weapons were licensed with the state.

Prosecutors classified it as a justified shooting. And then they hit Foehner with an avalanche of criminal charges that would have resulted in a longer prison sentence than his assailant would have received, had he survived.

There's also LaShawn Craig, another New York City man whose case I covered in December. He, too, shot someone in self-defense and he, too, was arrested for doing so without a license. Like Foehner, he was charged with criminal possession of a weapon, a violent felony in New York. For a paperwork violation.

New York is a particularly relevant case study on the subject, as its highly restrictive concealed carry framework was the subject of a landmark Supreme Court case—New York State Rifle & Pistol Association, Inc. v. Bruen—which the majority disemboweled. It wasn't just conservative gun rights advocates who wanted that ruling, although you'd be forgiven for thinking so based on how polarized this debate tends to be. That Supreme Court decision also attracted support from progressive public defenders with The Black Attorneys of Legal Aid, The Bronx Defenders, and Brooklyn Defender Services. As I wrote in June about the amicus brief they submitted to the Court:

[The public defenders] offered several case studies centered around people whose lives were similarly upended. Among them were Benjamin Prosser and Sam Little, who had both been victims of violent crimes and who are now considered "violent felons" in the eyes of the state simply for carrying a firearm without the mandated government approval. Little, a single father who had previously been slashed in the face, was separated from his family while he served his sentence at the Vernon C. Bain Center, a notorious jail that floats on the East River. The conviction destroyed his nascent career, with the Department of Education rescinding its offer of employment.

In many jurisdictions, including New York, it can be expensive and time-consuming to get the required license, which in turn makes the Second Amendment available only to people of a certain class.

So where do we go from here? Those skeptical of rolling back concealed carry restrictions may take comfort in the fact that this doesn't have to be black and white. Governments, for example, can "give eligible persons a 30-day grace period to seek and obtain a permit after being charged, then automatically drop charges and expunge record once obtained," offers Amy Swearer, a senior legal fellow at the Heritage Foundation, or "remove the criminal penalty entirely" and perhaps "make it a fineable infraction," like driving without a license.

Whatever the case, it should be—it is—possible to balance public safety with the right to bear arms, and, as an extension, the right to self-defense. To argue otherwise is to embolden a legal system that incentivizes elderly men like Yakaitis to sit down and take it when someone threatens their life.

The post This Elderly Man Was Arrested After Shooting a Burglar in Self-Defense—for Carrying the Gun Without a License appeared first on Reason.com.

The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.

According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.

"Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood," U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. "Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions." After considering the state's cursory defense of those determinations, Donato thought it was clear that California had "violated the Second Amendment rights of the individual plaintiffs."

Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored."

California's policy is different. "The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor's pardon that expressly restores their right to possess firearms," Donato explains. The requirements for California convictions are similar.

In Jones' case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in "firearms, chemical agents, batons and use of deadly force training," for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.

According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was "traveling at a high rate of speed" on his motorcycle while "intoxicated" and that he initially "accelerated," thinking "he might be able to outrun" the cops before he "reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him."

Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he "received a certificate of discharge, showing that he successfully completed his probation." It "included a statement that 'the defendant's civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'"

Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order "set aside" the conviction and released Linton "from all penalties and disabilities resulting from the offense." But when he tried to buy a rifle in November 2016, he was rejected.

The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, "DOJ agents came to Linton's home and seized several firearms from him that he had legally acquired and owned for years, including an 'antique, family-heirloom shotgun.'"

Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt "unsafe and unprotected" there "without at least the option of having appropriate firearms available or at hand if needed." He added that he "would like to be able to possess or handle firearms or ammunition for  recreational purposes, such as target shooting," while visiting friends and relatives in California.

Paul McKinley Stewart's disqualifying offense dates back even further than Jones' and Linton's. In 1976, when he was 18 and living in Arizona, he "stole some tools from an unlocked truck in a commercial yard." He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.

Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ "advised him that he was 'disqualified' from purchasing or possessing firearms 'due to the presence of a prior felony conviction.'" Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court "ordered 'that the civil rights lost at the time of sentencing are now restored,' 'set aside [the] judgment of guilt,' ordered the 'dismissal of the Information/Indictment,' and expressly held that the restored rights 'shall include the right to possess weapons.'" The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.

Defending these denials in federal court, the state argued that the plaintiffs were not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment because they were not "law-abiding, responsible citizens." In California's view, Donato writes, "a single felony conviction permanently disqualifies an individual from being a 'law-abiding, responsible citizen' within the ambit of the Second Amendment." He sees "two flaws" that "vitiate this contention."

First, Donato says, "undisputed facts" establish that all three plaintiffs are "fairly described as law-abiding citizens." Judging from the fact that "California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force," that was the state's view of him until 2018, when he was peremptorily excluded from "the people." And as with Jones, there is no indication that the other two plaintiffs have been anything other than "law-abiding" since their youthful offenses. "Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years," Donato notes. "Stewart has had a clean criminal record for the past 48 years."

Second, Donato says, California failed to identify any "case law supporting its position." In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court "determined that 'the people,' as used throughout the Constitution, 'unambiguously refers to all members of the political community, not an unspecified subset.'" That holding, he says, creates a "strong presumption" that California failed to rebut.

Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California's argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. "Heller and its progeny lead us to conclude that Bryan Range remains among 'the people' despite his 1995 false statement conviction," the 3rd Circuit said. "The Supreme Court's references to 'law-abiding, responsible citizens' do not mean that every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment."

Since Jones, Linton, and Stewart are part of "the people," California had the burden of showing that disarming them was "consistent with this Nation's historical tradition of firearm regulation"—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "California did not come close to meeting its burden," Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are "virtuous," a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs' long histories as productive and law-abiding citizens.

"California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here," Donato says. "It did not identify even one 'representative analogue' that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs'. That will not do under Bruen."

Donato rejected "California's suggestion that it might have tried harder if the Court had asked." Under Bruen, "the government bears the burden of proving the element of a national historical tradition," he writes. "California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so."

Donato was dismayed by the state's attitude. "The Court is not a helicopter parent," he writes. "It is manifestly not the Court's job to poke and prod litigants to live up to their burdens of proof."

The policy that Jones, Linton, and Stewart challenged seems inconsistent with California's criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment's reflexive hostility to the Second Amendment.

"This case exposes the hypocrisy of California's treatment of those convicted of non-violent crimes," says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. "While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people."

The post California Violated the Second Amendment by Disarming People Based on Nullified Convictions appeared first on Reason.com.

On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.

On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the "best reading" of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.

The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The "interpretive rule" at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle's receiver to slide back and forth.

Officially, the purpose of that rule was merely to "clarify" that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.

Federal law defines a machine gun as a weapon that "automatically" fires "more than one shot" by "a single function of the trigger." The definition also covers parts that are "designed and intended…for use in converting a weapon" into a machine gun.

During Wednesday's oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It "fires more than one shot by a single function of the trigger," he said, because "a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence." An ordinary semi-automatic rifle, according to Fletcher, "fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot." But "a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push."

Fletcher argued that a rifle with a bump stock also "fires more than one shot automatically, that is, through a self-regulating mechanism." After "the shooter presses forward to fire the first shot," he said, "the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute."

Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock "can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired." The trigger "is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire," he added. "The phrase 'function of the trigger' can refer only to the trigger's function. It has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function."

Second, Mitchell said, a rifle with a bump stock "does not and cannot fire more than one shot automatically by a single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing." That process "depends entirely on human effort and exertion," he explained, because "the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated."

Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher's reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun's rate of fire.

According to Fletcher, "a traditional machine gun" can "shoot in the range of 700 to 950 bullets a minute," while a semi-automatic rifle with a bump stock can "shoot between 400 and 800 rounds a minute." As he conceded, however, the statute does not refer to rate of fire. "This is not a rate-of-fire statute," he said. "It's a function statute." To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.

"It seems like, yes, that this is functioning like a machine gun would," Justice Amy Coney Barrett said. "But, you know, looking at that definition, I think the question is, 'Why didn't Congress pass…legislation to make this cover it more clearly?'"

Justice Neil Gorsuch made the same point. "I can certainly understand why these items should be made illegal," he said, "but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns." That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.

The massacre inspired several bills aimed at banning bump stocks. Noting that "the ATF lacks authority under the law to ban bump-fire stocks," Sen. Dianne Feinstein (D–Calif.) said "legislation is the only answer." President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that "the law has not changed," Feinstein warned that the ATF's "about face," which relied partly on "a dubious analysis claiming that bumping the trigger is not the same as pulling it," would invite legal challenges.

Feinstein was right about that, and one of those challenges resulted in the decision that the government is now asking the Supreme Court to overturn. In January 2023, the U.S. Court of Appeals for the 5th Circuit rejected the ATF's redefinition of machine guns.

"A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of 'machinegun' set forth in the Gun Control Act and National Firearms Act," 5th Circuit Judge Jennifer Walker Elrod wrote in the majority opinion. And even if that were not true, Elrod said, "the rule of lenity," which requires construing an ambiguous criminal statute in a defendant's favor, would preclude the government from punishing people for owning bump stocks.

Gorsuch alluded to Feinstein's prescient concerns about the ATF rule's legal vulnerability: "There are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated." The ATF's attempt to do that, he said, would "render between a quarter of a million and a half million people federal felons," even though they relied on guidance from "past administrations, Republican and Democrat," that said bump stocks were legal.

Justices Brett Kavanaugh and Samuel Alito also were troubled by that reversal's implications for people who already owned bump stocks. Fletcher tried to assuage those concerns.

"ATF made [it] very clear in enacting this rule that anyone who turned in their bump stock or destroyed it before March of [2019] would not face prosecution," Fletcher said. "As a practical matter," he added, "the statute of limitations for this offense is five years," meaning prosecutions of people who owned bump stocks before the rule took effect will no longer be possible a month from now. "We have not prosecuted those people," he said. "We won't do it. And if we try to do it, I think they would have a good defense based on entrapment by estoppel," which applies when someone follows official advice in trying to comply with the law.

"What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the 5th Circuit decision?" Alito asked. "Can they be prosecuted?" Fletcher's answer: "probably yes." That prospect, Alito said, is "disturbing."

Kavanaugh wondered about gun owners who did not destroy or surrender their bump stocks because they did not know about the ATF's rule. "For prosecuting someone now," he asked, "what mens rea showing would the government have to make to convict someone?" Fletcher said the defendant would "have to be aware of the facts" that, according to the ATF's reinterpretation of the law, make bump stocks illegal. "So even if you are not aware of the legal prohibition, you can be convicted?" Kavanaugh asked. "That's right," Fletcher replied.

"That's going to ensnare a lot of people who are not aware of the legal prohibition," Kavanaugh said. "Why not require the government to also prove that the person knew that what they were doing…was illegal?"

Gorsuch mocked Fletcher's apparent assumption that gun owners can be expected to keep abreast of the ATF's edicts. "People will sit down and read the Federal Register?" he said to laughter. "That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog."

Maybe not, Fletcher admitted, but the publicity surrounding the ban and the legal controversy it provoked probably brought the matter to many people's attention. "I agree not everyone is going to find out about those things," he said, "but we've done everything the government could possibly do to make people aware."

Beyond the unfairness to gun owners who bought products they quite reasonably thought were legal, the ATF's about-face lends credibility to the complaint that its current interpretation of the law is misguided. If the ATF was wrong before, how can we be confident that it is right now?

According to the agency's new understanding of the statute, Mitchell noted, "function of the trigger" hinges on what the shooter is doing. But "function is an intransitive verb," he said. "It can't take an object grammatically. It's impossible. The trigger has to be the subject of function. It can't be the object."

Gorsuch picked up on that point, noting that the government had likened "function of the trigger" to "a stroke of a key or a throw of the dice or a swing of the bat." But "those are all things that people do," he said. Since function is an intransitive verb, "people don't function things. They may pull things, they may throw things, but they don't function things."

Gorsuch noted that the ATF is relying on "a very old statute" designed for "an obvious problem" posed by gangsters like Al Capone armed with machine guns that fired repeatedly "with a single function of the trigger—that is, the thing itself was moved once." Maybe legislators "should have written something better," he said. "One might hope they might write something better in the future. But that's the language we're stuck with."

What about the ATF's claim that a rifle equipped with a bump stock shoots "automatically"? Fletcher conceded that "an expert" can bump-fire a rifle "without any assistive device at all" and that "you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place." But he added that "we don't think those things function automatically because the definition of 'automatically'" entails "a self-regulating mechanism."

As the government sees it, a shooter creates such a mechanism by using a bump stock, notwithstanding the "manual actions" that Mitchell highlighted. "There's nothing automatic about that," Mitchell argued. "The shooter is the one who is pushing. It's human effort, human exertion. Nothing automatic at all about this process."

Barrett asked Fletcher how the ATF would treat an elastic "bump band" marketed as an accessory to facilitate rapid firing. "Why wouldn't that then be a machine gun under the statute?" she wondered. "We think that's still not functioning automatically because that's not a self-regulating mechanism," Fletcher replied.

Mitchell, by contrast, argued that Barrett's hypothetical product and a bump stock are "indistinguishable when it comes to 'automatically.'" Bump firing with either involves "a manual action undertaken entirely by the shooter," he said. "There is no automating device….It is all being done by the shooter."

Justice Sonia Sotomayor, who was sympathetic to Fletcher's argument, nevertheless implied that the legal status of bump stocks might not be as clear as the government suggests. "The back-and-forth here leads me to believe that at best there might be some ambiguity," she said. But if the statute is in fact unclear, the 5th Circuit said, the ambiguity should be resolved in a way that protects gun owners from prosecution for a crime invented by bureaucrats.

The post SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats appeared first on Reason.com.