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I know that I’m extremely late when it comes to the Palworld hype. Palworld released in early January 2024 and currently, since there aren’t a lot of updates dropping, the hype died out. Yet, the roadmap looks extremely promising. Since this game is still in early access, I’m always hesitant in writing about the game. Since, you never know which mechanics or things will change and evolve during the early access period. Especially since we are currently only at v0.1.5.1. So, I decided to hold off on my first impression/review article for now. But, I wanted to talk about this game. So, here are some things I’d love to see in the full version of Palworld or even in one of the next updates.

First of all, what is a Palworld?

Palworld is a combination of several games, all thrown into one. It’s easy to describe Palworld with saying which games it combines.

Foremost, at its core, it’s a game you can somewhat compare to Ark Survival Evolved. When I first started playing, I noticed the similarities right away. The way how you have a crafting system to build your base, and you have monsters running around you can tame/catch is totally here as well.

I haven’t played a lot of Ark, so I can’t say if this mechanic is also present in Ark… But, the fact you can use your monsters to preform tasks in your base reminded me quite a lot of The Survivalists. A game where you are stranded on an island, and you can train monkeys to preform actions for you. The big difference is that now certain monsters can only preform certain tasks, instead of the monkeys just copying you.

Now, a lot of other articles describe this game as Pokémon with guns. After playing this game, I think that’s a somewhat unfair comparison. When I think Pokémon, I think a journey with gyms and an evil team. I think turn based battles and a big ending tournament as its conclusion. While some Pals share a very similar design language to some Pokémon, most of the mechanics of what makes a Pokémon game aren’t in this game. The other big mechanic is the capture mechanic, but by now this isn’t exclusive to Pokémon games anymore. Especially since we have games like Coromon.

There are also influences of the latest Zelda games. Especially Tears of the Kingdom. There are these huge, strong bosses roaming around on the huge open world map, you can beat at any time. Also, the korok seeds to upgrade your character are also here in the form of effigies and Pal souls to upgrade your monsters.

This game really feels like the developers looked at all the games they liked playing, looked at what worked and threw it all together into one pot and shook it until it all clicked together. The mechanics of this game really click extremely well together. If I didn’t know any better, I wouldn’t be surprised if I said that this was a finished game.

There are some silly bugs here and there and in some spots, this game feels unfinished. But, overall the game we have currently is amazing and if you would enjoy a game like this after reading what I wrote here… Give this game a try. I only told you the most basic things in this game. This game is a survival game with elements from a lot of other games like those I have already mentioned but also Minecraft, Dragon Quest Builders and various others.

Let’s talk improvements

While the game is a lot of fun to play at the moment, there are some things I wish that were improved or updated. While you get a lot of warnings that there are: save corruption bugs, crashes and bugs… Besides sometimes the lighting engine giving up for a moment or the AI of the pals or enemies doing some funky stuff, I haven’t seen too many worrying things.

Take for example this floating rock screenshot here. I have explored roughly half of the map after 35 hours of play, and this was the only floating rock I could find. That’s extremely impressive, especially since if you look at the size of the map… It isn’t small at all. In the future, new islands and area’s will be added so if they deliver them with this kind of quality, I have no complaints.

Well, I do have one recommendation. I’d love to see more landmarks in the map. Currently, almost all the landmarks in the game are based upon the terrain. I’d love to see more villages or ruins of them. I loved finding these things in the Zelda games and letting my mind wonder what happened there. It’s a very difficult balance act, since too many landmarks would make the map feel crowded and limit the amount of possible base locations.

Basically, I’d love more reasons for me to go exploring these regions and get unique rewards. Besides completing the Paldex, there isn’t a lot of reason to go exploring in certain area’s. And when you have set up the right kind of farms and work stations for your pals in your bases, the chance you run out of resources is rather small.

Speaking about bases, currently you can only have three bases. Most likely, this is done to improve the multiplayer performance. Since, the game emulates the three bases in the background, so you can easily have a base close to big ore clusters to farm those while you are working in your other base. If you don’t place a cap on those, it’ll tank the performance of any computer or server. Yet, I’d give the tools to the player to increase the cap. Personally, I think Minecraft has one of the best systems with the game rules. You can almost change anything to your playstyle and even disable or remove caps that are there for performance reasons. You already have quite a lot of toggles and sliders in Palworld, but I’d also expand on that.

Currently, the building system is decent, but it needs a lot of polishing up. The biggest problem I have with the building system are the stairs. It’s a nightmare sometimes to place stairs to go from one to another floor. Also, why can’t we place a full wall next to stairs? Most likely because some pals their hitbox would do some crazy stuff? Also, placing certain items or crafting stations on elevated floors doesn’t always work the best.

On top of that, besides the visual look of the floors, walls and ceilings, what’s the point of being able to unlock stone foundations? As a test, I tried to build a high tower with wood and one with stone. I didn’t find a difference. I’d love to see more meaning to what I unlock. Granted, stone can’t burn down. So, if you have any raids with flamethrower or fire enemies, your base isn’t in danger. But what’s the difference between stone and metal, then?

I honestly think that it’d be a bad idea if PocketPair only created more content and not make the mechanics have more depth. For example, something I’d love to see them implementing in the pal task system is a mechanic I love in Cult of the Lamb. When you welcome a new member in your cult, you can set the main focus of a member there. I’d love to see that you are able to set the main focus per pal. For example, when things are damaged in the base after a raid, you select one pal to go and get the repair kits and repair all damages first before going to do their usual tasks. Or when you have a pal that can do multiple things, and you mostly need that pal to pick up items, you could disable their other abilities. Maybe we need some items for that and those items can be only found in the wild, and we need to hunt for them. That’s an interesting idea to lure players out of their bases.

Dreaming like a madman

There are some UI elements I’d love to see change as well. First, I’d love to have a mini-map. The compass at the top of the screen only shows things in roughly 300m range, and that’s too short. Especially since in some areas the warp spots are spread quite far apart. A mini-map where you can pin certain things like the nearest warp spot would be amazing.

Secondly, in terms of the weapons. I’d love to see their stats before I craft them. Now it’s a guessing game that if I craft a certain weapon, if it’s going to be stronger or better than the one I currently have. It’d also be amazing if the durability is shown outside the inventory as well. There is some space in the UI element at the bottom right, so why not show it?

Now, in terms of the inventory. Sometimes I have issues with combining stacks of items. Sometimes I have to do it twice or thrice before they are combined. This is a rather small things, but outside of those… I don’t have a lot of small quality of life things that I could recommend. Maybe that if you sleep during the day in your bed, you can skip to night if you are hunting the nightlife pals?

Maybe there is one quality of life feature I think would be amazing. Quite often, when I’m hunting the stronger pals, I have my pal instructions set on “Focus on the same enemy”. I think it would have an amazing option if you have a feature where you are able to say to your pal if they are allowed to kill the wild pal or not. Since, if they are dead, you can’t capture them.

There is one attack that is a double-edged sword. In the Pokémon games, you have the self-destruct attack. You also have this one in Palworld, yet, some wild pals with this attack always take it over their other attacks. These bee pals always swarm me and instead of being able to weaken them, so I can catch them, I just get blown up. You barely have a chance to do any damage to weaken them to make capturing possible.

I just remembered one other quality of life feature. You can create saddles, gloves and other things to do special things with your pals. But, why I am allowed to create more than one? I mean, I can only use one of them at a time and they can be interchanged. So, if you make a saddle for a certain bird pal e.g. Helzephyr, that means you can use it on all Helzephyrs you catch.

But the biggest quality of life feature PocketPair could add is a mini-map inside caves/dungeons. The times I almost got lost in these caves is insane. Especially since there are only a handful of rooms in these and it’s easy to get turned around and confused.

Now, to completely change the subject… I wish there was more music in the game. The soundtrack in this game is amazing. Sadly, there isn’t enough in the game at the moment, so there are some silent moments. A little bit more ambient tracks would go a really long way in this game.

But, I saved one of my biggest things for last. That is inventory management. This is a total pain in bases. Since pals can put things inside chests, you can forget organisation. Thankfully, while crafting, the game pulls from all resources in your base, but if you need a certain item to use at another base, have fun to go searching through all your chests. What I usually do, if I can, is start crafting an item with the one I want to move and then cancel it. Since it drops the resources then and there. Now, how to solve this without breaking the game and the idea that pals can put things in chests? What if you have a new skill that pals can have? An organisation skill and depending on the level, they either put red things with red things or make a weapons chest and come to complain to you when there aren’t enough chests for their organisation?

If your base is fully set up, the proper of a lack of depth starts to show as well. When you build your base, why should you return to it besides needing to craft or repair your weapons? Give us some activities we can do in our base when we build them. I mean come on, we even have the amusement furniture set. If only we could play some mini-games with our pals to increase their sanity for example? Since currently, there is not a lot you can do when a pal is stressed.

Of course, a certain balance needs to be maintained. The more things a pal can interact with, the more chance you have to create lag or overwhelm the player. Also, the more depth you create, the more things you have to maintain and maybe that’s not the type of game that PocketPair wants to create. How I currently see Palworld is a playground sandbox in the schoolyard. It’s an amazing playground where you can make your own fun but it’s only part of the schoolyard and only has a swing, some monkey bars, a climb rack, a small castle and a slide. It’s all solid built and amazing to spend your time in… But, then you notice the potential this sandbox has to grow. What if we enlarged that sandbox with another castle, so the multiplayer can be player vs player as well? Or wait, why don’t we add an underground to that sandbox?

All I’m saying is that currently Palworld has an amazing foundation. The biggest issue at the moment is that the game lacks depth. While the current roadmap has a lot of expansions and more content, I hope PocketPair doesn’t forget to also make it more than just surface level. For example, imagne that the raid bosses can be captured and barely have an unique skills. Why should the player do the raids then? What reward do you get out of it? Not all mechanics can be fun because they are enjoyable to do. Players will get bored and they will look for a way to spice things up or to challenge themselves.

Now what that said, I’m going to close off this article. I’m quite excited for the future of Palworld and I’m going to wait a few more updates before I decide to write a review on the game. But overall, I’m really liking what I see. The basis of an amazing title is here already and I think we are going to get an even better game when this comes out of early access. Let’s wait and see what happens when the first big updates drop. Especially the raid bosses that got teased a few weeks ago.

Thank you so much for reading this article and I hope you enjoyed reading it as much as I enjoyed writing it. What do you think of PalWorld and what should be added or changed? Let me know in the comment section down below. Also, what do you think of my idea’s? I’m curious, feel free to leave a comment about that one to. But, I also hope to welcome you in another article but until then, have a great rest of your day and take care.

Update: About 14 hours after Rittenhouse shared his video explaining his support for Ron Paul, declaring that "you must stand by your principles," he announced that he spoke "with members of the Trump's [sic] team" and that he is now "100% behind Donald Trump."

"A lot of people are upset that I said I'm going to be writing in Ron Paul for president of the United States, and that is true. I will be writing in Ron Paul." So said Kyle Rittenhouse in a recent video posted to X. A lot of people, it appears, are indeed upset. Should they be?

Rittenhouse catapulted to national attention in 2020 when, at age 17, he armed himself, traveled to Kenosha, Wisconsin, during a night of riots and civil unrest, and shot three men, killing two. It was always Rittenhouse's contention that he'd acted in self-defense, and his arrest galvanized many in the conservative movement who said the prosecution was motivated not by justice but by the political moment. Supporters helped raise $2 million for Rittenhouse's bail, and he ultimately attracted the attention of former President Donald Trump, who defended him while in office and who hosted Rittenhouse at Mar-a-Lago after leaving the White House.

So one of the primary reactions to Rittenhouse's choice for president is that he's guilty of betrayal. Trump and the MAGA movement had his back when his life took its most dire turn, the thinking goes, so Rittenhouse owes them his loyalty at the ballot box. That general sentiment is summed up aptly by the one-and-only Catturd: "I can stomach a lot of things—but backstabbing millions who supported you at your lowest point. Then turning on Trump right after he got shot," he said in a viral post. "Can't stomach it—won't put up with it—forgotten forever."

In other words, Rittenhouse is allegedly in debt to Trump and his followers for supporting his claims of innocence. He was acquitted in 2021 of all charges, including first-degree reckless homicide, two counts of first-degree recklessly endangering safety, first-degree intentional homicide, and attempted first-degree intentional homicide. That was the right decision. And it was the one the jury came to because that is what the evidence clearly supported. The right to self-defense is not selectively available to people with certain views. Rittenhouse owes no one a thing for not getting convicted of charges that prosecutors should not have brought to begin with.

So why did Trump fail to gain Rittenhouse's support? "Unfortunately, Donald Trump had bad advisers making him bad on the Second Amendment, and that is my issue," he said in his video. "If you cannot be completely uncompromisable on the Second Amendment, I will not vote for you." Trump's record includes a bump stock ban, which Reason's Jacob Sullum noted turned "peaceful gun owners into felons by fiat," and his support for red flag laws. Those moves may not be deal-breakers for many people, including other staunch supporters of the Second Amendment. They apparently are for Rittenhouse. It's his one vote, and he can do with it what he wants.

Yet his announcement also elicited what has become the predictable response, on both the left and the right, to similar defections from the mainstream: You're helping elect the other guy. For one, that vastly overstates the power of a vote—an unpopular thing to say, sure, but true nonetheless. And it's particularly true for Rittenhouse, who lives in the Dallas–Fort Worth area; if he's casting his vote there, I'm going to go out on a limb and assume it will not derail Trump's electoral victory in Texas, which is almost assured.

But even if it were true that Rittenhouse's vote would have some sort of Earth-shattering effect on the outcome of the 2024 election, a vote is earned. It's an expression of support. If neither mainstream option can produce a platform that is sufficiently palatable to someone, they certainly have the prerogative to make that known—by supporting someone else or, gasp, not voting altogether.

After all, no one is entitled to your vote. They're not entitled to it simply because they're a member of a particular political party, and they're not entitled to it for supposedly being less bad than the other side. And they're certainly not entitled to it just because they said supportive things about you in a time of need.

The post Nobody Owes Trump Their Vote. Not Even Kyle Rittenhouse. appeared first on Reason.com.

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.

The Supreme Court on Friday ruled that the right to a trial by jury and to due process apply to people who face a steep sentencing enhancement under federal law, in a ruling that transfers some power from the hands of judges to the public and will affect many criminal defendants' future punishments.

The procedural history of the case is a bit of a whirlwind. But at its center is Paul Erlinger, who was charged in 2017 with being a felon in possession of a firearm and sentenced to 15 years under the Armed Career Criminal Act (ACCA), which increases the punishment for that offense—felon in possession of a firearm—from a 10-year maximum to a 15-year minimum if the defendant has been convicted previously of three violent felonies or serious drug offenses on separate occasions.

At sentencing came one of the initial twists, when the judge who handed down the 15-year punishment made clear it was inappropriate. Erlinger, who pleaded guilty, had gained steady employment, started a family, and remained drug-free in the more than a decade since his previous convictions, so a five-year sentence, the judge said, would be "fair." But under the ACCA, the court's hands were tied.

Then came the U.S. Court of Appeals for the 7th Circuit, which said shortly thereafter that two of Erlinger's offenses considered for the purposes of the ACCA did not actually qualify as violent felonies or serious drug crimes. Prosecutors, however, were undeterred. They returned to court and invoked convictions related to burglaries Erlinger committed 26 years before the felon in possession of a firearm charge, when he was 18 years old. Erlinger countered that the burglaries in question had been a part of one criminal episode—not distinct events as the ACCA requires—and that, most importantly, a jury would need to make the consequential determination about the separateness of those offenses.

The sentencing court disagreed, ruling it was the judge's decision and that the court was bound by the ACCA, thus reimposing the 15-year sentence that it once again called "unfortunate" and "excessive."

But Justice Neil Gorsuch, writing for the 6–3 majority opinion, explained that Erlinger did indeed have the 5th Amendment and 6th Amendment right to ask a jury whether those offenses were committed separately and if he is therefore vulnerable to the massive increase in incarceration that the sentencing court itself characterized multiple times as unjust. The outcome was at least somewhat predictable when considering yet another twist: After Erlinger appealed on the grounds that his constitutional rights had been violated, the government agreed. But the 7th Circuit still refused to reconsider his sentence, leaving Erlinger to ask the Supreme Court.

Core to Gorsuch's opinion is Apprendi v. New Jersey (2000), a Supreme Court precedent that ruled it was unconstitutional when a judge sentenced a defendant more harshly on the basis that a shooting had allegedly been motivated by racial animus, because no jury considered or made any determination beyond a reasonable doubt on that factor. A jury and a jury only, the Court ruled, may find "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" when it will cause the penalty to exceed the prescribed statutory maximum.

But Gorsuch also says the Court has something else on its side today: history. "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury,'" he writes. "The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system" in order "to mitigate the risk of prosecutorial overreach and misconduct" and serve as a check on the government.

This is not a novel area for Gorsuch, who has made clear his respect for the right to a trial by jury. Last month, he rebuked the Court's demurral from hearing a case concerning Florida's use of six-person juries as opposed to the traditional, historical practice of using 12-person panels.

Though much has been made of the ideologically fractured nature of the current Court, the decision in Erlinger did not fall neatly along partisan lines. Among the dissenters were Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom argued that Apprendi—and, as an extension, the case law that has sprung from it—was wrongly decided. "I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing," Jackson writes. "In my view, however, the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought," which she says has hamstrung judges and increased sentencing disparities.

"The only thing judges may not do consistent with Apprendi is increase a defendant's exposure to punishment based on their own factfinding," counters Gorsuch. "Does Justice Jackson really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the 'practical realit[y]' for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?"

The post The Supreme Court Again Strengthens the Right to a Jury Trial in Criminal Sentencing appeared first on Reason.com.

A few practical thoughts for future cases (all bold emphasis added):

[1.] The Court solidly accepts (with only Justice Thomas dissenting) that "the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others," at least after a judicial finding of such threat. That judicial finding can be in a civil case, and without proof beyond a reasonable doubt.

[2.] The majority opinion is likely to add force to arguments for the constitutionality of so-called "red flag" laws, which empower courts to order seizure of firearms from people when there is sufficient specific, articulable evidence that those people are dangerous (generally for mental-health-related reasons). Of course, much will depend on the details of the particular laws.

[3.] The decision, however, does not validate all restraining order statutes. Consider, for instance, California Code of Civil Procedure § 527.6; that statute authorizes "harassment restraining orders" based on "clear and convincing evidence" of "harassment," which includes not just "unlawful violence" or "a credible threat of violence," but also (emphasis added)

a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

{"Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of "course of conduct."}

Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of "credible threat to the physical safety of others." (See the recent post on Adams v. Gulley, California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that "The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms" (as indeed happened in Adams v. Gulley). Such orders, issued in the absence of any finding of threat to physical safety, should remain challengeable under the Second Amendment.

[4.] The majority repeated Heller's statement that "prohibitions … on the possession of firearms by 'felons and the mentally ill'[] are 'presumptively lawful'"; Justice Kavanaugh's concurrence did the same, though Justice Thomas's dissent noted that this statement in Heller was "dictum." This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

At the same time, perhaps there is some room after Rahimi for this "presumpti[on]" to be rebutted with regard to people convicted of felonies that don't suggest a "credible threat to the physical safety of others," especially if those felonies are part of the well-post-Framing increase in the number of nonviolent crimes that are classified as felonies. A few courts have so concluded (to oversimplify slightly); U.S. v. Range (3d Cir. 2023) (en banc) is one example. I expect that the Court will send Range back to the Third Circuit for further consideration in light of Rahimi; we'll see what the Third Circuit judges say on remand.

[5.] The Court expressly declined to resolve whether the most relevant history is as of 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment, which has been read as applying the Second Amendment to the states, was ratified):

We also recognized in Bruen the "ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government)." We explained that under the circumstances, resolving the dispute was unnecessary to decide the case. The same is true here.

This may be important for various questions, including whether limits on gun acquisition or possession by 18-to-20-year-olds are constitutional.

[* * *]

Some broader methodological takeaways:

[6.] The Court's six conservatives remain solidly committed to analyzing arms restrictions by considering pre-ratification and shortly post-ratification history, and not using balancing tests, "strict scrutiny," "intermediate scrutiny," or the like. Speculation that Justice Barrett was moving away from that approach, based on her Vidal v. Elster concurrence, was plausible at the time of that concurrence, but appears not to have been borne out. Justice Barrett's concurrence in Rahimi reaffirms her originalist approach; to the extent it notes differences from some of the other Justices, it has more to do with her skepticism of certain uses of "tradition" (as opposed to "original history," which she continues to endorse as "generally dispositive").

[7.] Five of the six conservatives (all but Justice Thomas) are willing to uphold restrictions that fit generally within a "regulatory tradition" going back to ratification, but that go beyond the specific details of those historical regulations:

[W]hen a challenged regulation does not precisely match its historical precursors, "it still may be analogous enough to pass constitutional muster." The law must comport with the principles underlying the Second Amendment, but it need not be a "dead ringer" or a "historical twin."

In particular, the majority pointed to

1. "surety laws," under which "a magistrate could "oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance … that such offence … shall not happen[,] by finding pledges or securities," coupled with
2. "going armed" laws that imposed prison terms on people for "riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land," which tended to lead "to actual violence." (As the Court held in Bruen, the "going armed" laws prohibited going armed in circumstances that created a clear threat of violence, and didn't ban "peaceable public carry.")

The majority concluded:

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

[* * *]

Finally, a couple of quick thoughts about the three liberal Justices' concurrences (though their views, as minority views on the Second Amendment, are less practically significant at this point) and about Justice Thomas's dissent (which is likewise less practically significant, as a dissent):

[8.] The liberal Justices continue to reject Bruen and possibly Heller as well, and prefer a "means-ends scrutiny" test (sometimes intermediate scrutiny, under which nearly all gun restrictions have been upheld, and sometimes strict scrutiny). Justice Jackson in particular argues that the Bruen historical approach should be rejected because it has proved unworkable in lower courts:

In my view, as this Court thinks of, and speaks about, history's relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention.

[9.] Justice Thomas stresses (as Judge Ho did in his separate Fifth Circuit opinion) that:

This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years' imprisonment. Assuming C. M.'s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime….

The post Some Takeaways from Today's <i>Rahimi</i> Second Amendment Opinions appeared first on Reason.com.

From Steinbuch v. Pulaski County Circuit Court, decided today by the Arkansas Supreme Court (note that the lead plaintiff is a professor at the University of Arkansas at Little Rock):

Judge Welch presided over a civil action involving whether licensed attorneys in Arkansas are "officers of the court" and thus authorized under Arkansas Code Annotated section 5-73-122(b) to carry firearms in courthouses. The plaintiffs were Arkansas attorneys. Their complaint sought a declaratory judgment and injunctive relief. The defendants—the Pulaski County Sheriff and the Pulaski County Judge—filed a motion to dismiss the complaint. Judge Welch granted the motion to dismiss. Judge Welch ruled not only that the plaintiffs were procedurally barred from bringing the action but also that "an interpretation of ACA § 5-73-122 as suggested by the Plaintiff, [would] be [u]nconstitutional." Judge Welch also concluded that the "Plaintiff's [a]rgument fails, as it is founded upon a flawed premise that mis-reads the plain meaning of ACA § 5-73-122."

The plaintiffs appealed from the dismissal order. The appeal brought the interpretation of section 5-73-122 before this court. We affirmed in part and reversed and remanded in part. We held the statute's use of "officers of the court" included attorneys and that the statute allows them to possess handguns in courthouses. We therefore concluded that "the circuit court erred when it denied … plaintiffs' petition for a declaratory judgment." The charge on remand was not complex—Judge Welch was instructed to "enter an order consistent with this opinion."

Upon remand, Judge Welch entered a "Temporary Order on Lawyer/Officer-of-the-Court Carry, Partial Stay, Notice of Hearing, and Order of Partial Dismissal." The following includes some relevant excerpts from his order:

The Opinion [referring to this court's Corbitt decision] limits the Supreme Court's Superintending Authority over courts under Amendment 80. It also creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State, in apparent conflict with the myriad of legislative enactments promoting carry permits….

The "Lawyer/Officer-of-the court Carry" Opinion ("LOCO," hereafter) ….

"Stakeholders" (In addition to the Sheriff, and the other parties), including Police Chiefs, and District Court Representatives will be invited to attend and submit input, on application, as Amici. The Court anticipates more than one hearing may be necessary to implement the vision of the Supreme Court….

IT IS ORDERED that PENDING THE HEARING, further implementation of "The Lawyer/Officer-of-the court Carry" Opinion in this case SHALL BE STAYED except as concerns the FIRST FLOOR of the Pulaski County Courthouse ….

Judge Welch proceeded to enter various additional stays of this court's opinion pending a hearing scheduled in August 2024…. [W]e issued notice to Judge Welch that his order may have violated the Code of Judicial Conduct….

The substance of Judge Welch's response can be summed up under two points. First, Judge Welch understood this court's mandate in Corbitt, which reversed and remanded his prior decision, as a charge to conduct further proceedings. He took that as his duty to consult with others, issue a variety of orders, and implement the court's decision as he deemed practical and appropriate, and "that is what … Judge [Welch] did." He was wrong. His written response contains the following explanations:

For example, on April 22, 2024, Judge Welch began researching and reviewing other applicable laws and regulations that might impact the manner in which he would carry out this Court's holding. …

He also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials….

The varying floor plans of Pulaski County's many courthouses presented unique challenges not contemplated in the Corbitt Appeal Opinion or Mandate. He listened to the frustrations of those directly impacted by this Court's decision….

He issued the May 7 Order, the intent of which was to create a procedure for holding "further proceedings consistent with this [Court's Corbitt Appeal] opinion," while simultaneously balancing the valid safety concerns addressed in neither the Corbitt Appeal Opinion nor Mandate.

Second, Judge Welch explains that he meant no disrespect to this court but that his "style, diction, and delivery are consistent with the vigorous written debate that has defined our judiciary for over a century." He believes he properly exercised his right of free speech but "admits that some of its characterizations should not have survived the editor's pen … [and that his] diction may have deserved greater care and forethought." He also suggests that injury to reputation should not quash the right to free speech and that he spoke on a matter concerning the safe administration of justice….

This court is exercising its superintending authority under Amendment 80, section 4 of the Arkansas Constitution….

Rule 1.2 [of the Code of Judicial Conduct] provides that

[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

We find that Judge Welch's order failed to promote confidence in the judiciary. It did the opposite and undermined public confidence. Labeling and referring to an opinion by the Supreme Court of Arkansas as "LOCO" erodes public confidence. His written opinion stating that the Supreme Court's opinion "creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" also erodes public confidence. To suggest that this court created a class of armed lawyers is dangerous, and it undermines the public's understanding of the judiciary's role. In Corbitt, we interpreted a statute passed by the Arkansas General Assembly. We interpret laws, we do not make them, and Judge Welch's suggestion to the contrary damages the public's view of the separation of powers and the role of the judiciary.

His response does not demonstrate that he understands the severity of his conduct. Suggesting that his comments were consistent with "the vigorous written debate that has defined our judiciary for over a century" is misguided. A trial court is not "participating in rigorous debate" when it receives a mandate from an appellate court and issues an order staying most of it and labeling it as "LOCO." That is disingenuous.

Imagine if circuit courts across this state were to ignore mandates and stay orders of the Supreme Court of Arkansas and our Court of Appeals. It would be unprofessional, rebellious, and harmful to the public's confidence in the judiciary's ability to follow its own rules. As judges, we must follow our established framework if we expect others to do the same. Judge Welch's actions had no place on the bench, and it is disheartening that, when given an opportunity to reflect, he failed to recognize the impact of his actions. The public must have confidence that judicial orders will be followed and that appellate mandates will be carried out. We find that Judge Welch violated Rule. 1.2….

Rule 2.2(A) provides that

[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

The comment explains that "[a]lthough each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law no matter if the judge approves or disapproves of the law in question." Judge Welch made it clear in his written order that he disagreed with this court's interpretation of the statute and with the statute itself. His opinion was sprinkled with disparaging remarks about the court's interpretation of the statute. He then purported to stay an opinion and a mandate of the Supreme Court of Arkansas for three months because he "believe[d] a need for restraint pending the Hearing [was] required before the influx of Lawyers Officers." Judge Welch exceeded the role of circuit judge by staying our decision. {We note that, although Judge Welch attempted to stay the implementation of our mandate, he had absolutely no authority to do so. Lower courts are vested with jurisdiction only to the extent conferred by this court's opinion and mandate, and any proceedings on remand that are contrary to the directions contained in our mandate are considered null and void.}

Judge Welch had earlier declared the statute unconstitutional; on appeal, this court disagreed and concluded that Judge Welch had erred by denying the plaintiffs' petition for declaratory judgment. On remand, any learned judge would know that the next step is to enter judgment for the plaintiffs—not to stay the supreme court's order and sua sponte attempt to create an administrative scheme that redefines the legislation and this court's mandate. A declaratory-judgment action seeks a declaration one way or another. It does not ask a judge to initiate and create an administrative scheme for application of a statute. That is not the role of the circuit court.

Further, the principle of fair and impartial treatment forbids judges from conducting independent fact-finding and ex parte discussions involving a case. Yet Judge Welch's response states that, following the Corbitt opinion and before entering his subsequent order, "[h]e also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials." This is independent fact-finding and ex parte communication. We find that he neither performed his duties impartially nor left his personal views behind him and he violated Rule 2.2….

Rule 2.3(B) states that

[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

The comment explains that examples of bias include the use of demeaning nicknames or negative stereotyping. Using the word "LOCO" to refer to an opinion from the Supreme Court of Arkansas violates this rule. Judge Welch is a circuit judge with Amendment 80 general jurisdiction. According to the Sixth Judicial District's Administrative Plan, he is one of the circuit judges who hears cases in the civil-commitment mental-health court, thus we think he should be more circumspect with his word choice. Using the Spanish word loco, meaning crazy, cavalierly referring to another court's judicial order in a joking manner exceeds the bounds of appropriate judicial behavior. And when given an opportunity to respond, to admit only that he should have had better editing skills, suggests a lack of judicial maturity and reflection. We find that Judge Welch violated Rule 2.3.

We are also mindful that this court in 2012, acting on encouragement from Arkansas members of the American Board of Trial Advocates, added the following pledge of civility to the Attorney Oath of Admission to the Bar of Arkansas:

I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them.

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communication.

It is not lost on this court that we administered this oath to the newest members of the Bar of Arkansas on May 3, 2024, only to have Judge Welch undermine it four days later, on May 7, 2024.

Because this court finds that Judge Welch has violated Rules 1.2, 2.2, and 2.3 of the Code of Judicial Conduct, we formally admonish him. Given his failure to recognize the severity of his actions, we order the following remedial measures:

• Enroll and complete Ethics and Judging: Reaching Higher Ground (JS 601), a web-based 6-week course with the National Judicial College from June 10 to July 25, 2024.
• Complete another 3 hours of ethics continuing legal education by September 30, 2024.

… Judges must be circumspect in their official roles and while presiding over a case. Judge Welch expressed his frustration at the wrong time and in the wrong manner. This court does not make law. His actions as a member of the Arkansas Bar were unacceptable and indeed fell far below what we expect from a member of the judiciary….

I'm skeptical of some of the analysis: For instance, I don't think that characterizing a higher court's decision as "creat[ing] a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" (as opposed to merely interpreting the law) is sanctionable misconduct. Likewise, the problem with labeling a court opinion as "LOCO" strikes me as unrelated to whether the judge "hears cases in the civil-commitment mental-health court," and unrelated to concerns about "bias" and "prejudice" as the Code of Conduct seems to use those words. Nonetheless, it does seem to me that trial judges ought not be labeling higher court opinions "LOCO," or staying higher court opinions for months because they think they're unsound.

The post Arkansas S. Ct. Formally Admonishes Judge Whose Order Characterized S. Ct.'s Opinion as "LOCO" appeared first on Reason.com.

What do the National Rifle Association (NRA), the American Civil Liberties Union (ACLU), and nine U.S. Supreme Court justices from five presidential administrations all have in common? That list is likely relatively small. But at least one area of overlap was made evident Thursday when the Court published a unanimous ruling that a New York government official allegedly violated the First Amendment by pressuring insurers and banks to sever business ties with the NRA, which the ACLU is representing.

The decision resuscitates the gun advocacy group's lawsuit against Maria Vullo, the former head of New York's Department of Financial Services (DFS). The U.S. Court of Appeals for the 2nd Circuit had previously ruled in her favor.

At the core of the case is Vullo's advocacy following the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida. After that tragedy, in private meetings with insurance companies, Vullo allegedly expressed she would selectively apply enforcement action to groups that insisted on serving the NRA.

She didn't stop there. She also sent letters titled "Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations" to insurers and banks, in which she encouraged them to "continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations"; to "review any relationships they have with the NRA or similar gun promotion organizations"; and to "take prompt actions to manag[e] these risks and promote public health and safety." And in a press release with then-Gov. Andrew Cuomo, the two officials urged such companies to terminate their relationships with the gun advocacy group. Some took them up on the suggestion.

The constitutional issue at stake here is similar to the one the Court explored in Murthy v. Missouri, the case that asks if President Joe Biden's administration violated the First Amendment when it sought to convince social media companies to remove content it disliked. During those oral arguments in March, many justices appeared sympathetic to the view that government officials had not overstepped the bounds of their authority and had merely exercised their own free speech rights to persuade those companies to adopt their views, not unlike a White House press secretary promoting an ideological slant to the media. 

But in NRA v. Vullo, the Court ruled unanimously that Vullo's actions as alleged by the NRA had crossed the line from persuasion into coercion. "Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors," wrote Justice Sonia Sotomayor. The NRA, she said, "plausibly alleges that respondent Maria Vullo did just that."

The decision sends the case back to the 2nd Circuit, which could still give Vullo qualified immunity, the legal doctrine that shields government officials from suits like the NRA's if the misconduct alleged has not been "clearly established" in prior case law. That outcome is certainly probable, as the 2nd Circuit's original decision not only ruled that Vullo had not violated the Constitution—which the Supreme Court rejected today—but that even if she had, qualified immunity would insulate her from the NRA's claim.

It is difficult to imagine, however, a more obvious violation of the Constitution than the weaponization of government power to cripple advocacy disfavored by the state. The supposed reason for qualified immunity is that taxpayer-funded civil servants deserve fair notice that conduct is unlawful before a victim can seek recourse for those misdeeds. To argue that a government agent could not be expected to understand the contours of the First Amendment here is rather dire.

Many people may struggle to separate the constitutional question from the ideological backdrop. The NRA, after all, is one of the more polarizing lobbying organizations in the country, not least of which because its founding issue—gun rights—is not exactly a topic that elicits cool-headed responses. It has also become an advocacy group not just for firearms but for the Republican Party more broadly and the identity politics associated with it, alienating large swaths of people, to put it mildly.

There is another major group in the country that has followed a similar story arc, just on the other side of the political spectrum: the ACLU. Once a stalwart free speech group—so principled it defended the First Amendment rights of Nazis—it has, in modern times, sometimes actively advocated against civil liberties when those principles transgress progressive politics, an awkward move when considering the group's name. But no matter how much you dislike one or both of them, the NRA and the ACLU coming together here is all the more reflective of the fact that some things, like the First Amendment, really aren't partisan.

The post The NRA's Unanimous Supreme Court Victory Is Good for Free Speech—No Matter How You Feel About Guns appeared first on Reason.com.

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me):

[A.] Six decades ago, this Court held that a government entity's "threat of invoking legal sanctions and other means of coercion" against a third party "to achieve the suppression" of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services [DFS], Vullo allegedly pressured regulated entities to help her stifle the NRA's pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. [More factual details below. -EV] Those allegations, if true, state a First Amendment claim….

A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression….

[B.] In Bantam Books v. Sullivan (1963), this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were "'objectionable'" because they threatened "youthful morals."

The commission sent official notices to a distributor for blacklisted publications that highlighted the commission's "duty to recommend to the Attorney General" violations of the State's obscenity laws. The notices also informed the distributor that the lists of blacklisted publications "were circulated to local police departments," and that the distributor's cooperation in removing the publications from the shelves would "'eliminate the necessity'" of any referral for prosecution. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took "steps to stop further circulation of copies of the listed publications" out of fear of facing "'a court action.'"

The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that "it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights." This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor to stop selling and displaying the listed publications.

The Court explained that the First Amendment prohibits government officials from relying on the "threat of invoking legal sanctions and other means of coercion … to achieve the suppression" of disfavored speech. Although the commission lacked the "power to apply formal legal sanctions," the distributor "reasonably understood" the commission to threaten adverse action, and thus the distributor's "compliance with the [c]ommission's directives was not voluntary." To reach this conclusion, the Court considered things like: the commission's coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were "phrased virtually as orders" containing "thinly veiled threats to institute criminal proceedings" if the distributor did not come around; and the distributor's reaction to the notices and followup visits….

Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf….

[C.] To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA's gun-promotion advocacy.

Consider first Vullo's authority, which serves as a backdrop to the NRA's allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official's communication as coercive…. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties.

Against this backdrop, consider Vullo's communications with the DFS-regulated entities, particularly with Lloyd's. According to the NRA, Vullo brought a variety of insurance-law violations to the Lloyd's executives' attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business.

Vullo allegedly said she would be "less interested in pursuing the[se] infractions … so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo therefore wanted Lloyd's to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA's.

Vullo also told the Lloyd's executives she would "focus" her enforcement actions "solely" on the syndicates with ties to the NRA, "and ignore other syndicates writing similar policies." The message was therefore loud and clear: Lloyd's "could avoid liability for [unrelated] infractions" if it "aided DFS's campaign against gun groups" by terminating its business relationships with them.

As alleged, Vullo's communications with Lloyd's can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the "threat need not be explicit," and as the Solicitor General explains, "[t]he Constitution does not distinguish between 'comply or I'll prosecute' and 'comply and I'll look the other way.'" … Vullo allegedly coerced Lloyd's by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd's ceased underwriting NRA policies and disassociated from gun-promotion groups.

The reaction from Lloyd's further confirms the communications' coercive nature. At the meeting itself, Lloyd's "agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business." Minutes from a subsequent board of directors' meeting reveal that Lloyd's thought "the DFS investigation had transformed the gun issue into 'a regulatory, legal[,] and compliance matter.'" That reaction is consistent with Lloyd's public announcement that it had directed its syndicates to "terminate all insurance related to the NRA and not to provide any insurance to the NRA in the future."

Other allegations, viewed in context, reinforce the NRA's First Amendment claim. Consider the April 2018 Guidance Letters and accompanying press release, which Vullo issued on official letterhead. Just like in her meeting with the Lloyd's executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action.

This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their "reputational risks," and then tied that obligation to an encouragement for "prompt actio[n] to manag[e] these risks." Evocative of Vullo's private conversation with the Lloyd's executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to "'discontinu[e] their arrangements with the NRA,'" just like Chubb did when it stopped underwriting Carry Guard. A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'" …

[T]his Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law" is an "'obvious alternative explanation'" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

{Vullo also argues that she is entitled to absolute prosecutorial immunity for her enforcement actions. Putting aside whether a financial regulator like Vullo is entitled to such immunity in the administrative context, because Vullo did not raise this defense below with respect to the First Amendment claim (or even with respect to allegations unrelated to the consent decrees), the Court declines to consider that argument here in the first instance.}

[D.] Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State's obscenity laws. Nothing in that case turned on the distributor's compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., nonobscene material).

Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA's protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy….

[E.] That Vullo "regulate[d]" business activities stemming from the NRA's "relationships with insurers and banks" does not change the allegations that her actions were aimed at punishing or suppressing speech…. One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA's gun-promotion advocacy and advance her views on gun control. Vullo knew, after all, that the NRA relied on insurance and financing "to disseminate its message." {Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down."} …

The NRA's allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA's advocacy. Such a strategy allows government officials to "expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over." It also allows government officials to be more effective in their speech-suppression efforts "[b]ecause intermediaries will often be less invested in the speaker's message and thus less likely to risk the regulator's ire."

The allegations here bear this out. Although "the NRA was not even the directly regulated party," Vullo allegedly used the power of her office to target gun promotion by going after the NRA's business partners. Insurers in turn followed Vullo's lead, fearing regulatory hostility….

[F.] [N]othing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the "ballot box" is an especially poor check on that official's authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries….

Justice Gorsuch filed a one-paragraph concurrence concluding that courts should focus on deciding whether the plaintiff has "plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech," rather than trying to articulate any multifactor tests (as some lower courts have done in this area) elaborating on this core question.

Justice Jackson also concurred, highlighting the fact that some government coercion can directly stifle speech (for instance, when the government is coercing bookstores not to carry a book) while other coercion retaliates against protected speech (for instance, when the government is coercing financial intermediaries not to do business with speakers). Both may violate the First Amendment, but, she argued, they should be analyzed somewhat differently; read her opinion (PDF pp. 26-31) for more details.

The post Unanimous First Amendment Victory for the NRA (Represented by the ACLU) appeared first on Reason.com.

From P.D. v. Sullivan, decided last month by Judge Nelson Román (S.D.N.Y.):

Plaintiff seeks to proceed anonymously because the action involves "matters of a highly sensitive and personal nature, to wit, medical and mental health records and information." … There is little question that the instant case involves matters that are highly sensitive and of a personal nature—medical and mental health information are undoubtedly so. Moreover, Plaintiff is suing the Commissioner of the New York State Office of Mental Health in her official capacity, and therefore sues the government rather than a private entity. Furthermore, there is little to no prejudice to Defendant as she has not opposed Plaintiff's request and Plaintiff indicated he would provide his name to Defendant. Finally, Plaintiff's name and identity have been kept confidential from the public to date.

[On the other hand, though] Plaintiff argues that his identification "poses a risk of retaliatory physical and mental harm to Plaintiff, and even more critically, to innocent non-parties including his family members" … this risk of harm is vague and speculative. Plaintiff points to the combined "stigma" of mental health and Second Amendment rights but fails to elaborate on or provide any evidence of this supposed stigma. Nor does Plaintiff specify the nature of these potential harms. Plaintiff claims this is particularly true "within New York State's hostile anti-Second Amendment environment," and the Court is not entirely sure what Plaintiff means….

"… [T]here is a general presumption that parties' identities are public information." As implied by Plaintiff, the Second Amendment has fostered continued debate and discussion among the public in recent years. Accordingly, there will likely be widespread interest in Plaintiff's suit that challenges provisions of the New York State Mental Hygiene Law ("NY MHL") as unconstitutional under the Second and Fourteenth Amendments.

Admittedly, the identities of individuals who sue only the government and raise an abstract question of law may be largely irrelevant to the public's concern with the nature of the process. However, while Plaintiff's claims contest the constitutionality of a statute—certainly an abstract question of law—Plaintiff also argues the statute's constitutionality with respect to his specific circumstances. Plaintiff alleges that NY MHL § 9.39 is unconstitutional "as applied to Plaintiff." Accordingly, although the action appears to involve purely legal questions, disputes of fact may arise as the litigation progresses.

Finally, there are alternative mechanisms available to Plaintiff. "A plaintiff's confidentiality can be protected in multiple ways, including redaction of the documents and sealing, seeking a protective order, or entering into a confidentiality agreement." Accordingly, with regards to Plaintiff's argument that anonymity will create more transparency, the Court is confident that the parties can find a middle ground where the public has access to all pertinent information without the need for Plaintiff to proceed anonymously…. "Redacted and sealed submissions are routinely used in cases involving sensitive medical information." … "The fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Plaintiff's Amended Complaint claims that he was admitted to a hospital under N.Y. Mental Health Law 9.39 "for emergency observation and evaluation"; that law provides for brief commitment for "mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." But plaintiff states that he "consistently denied any suicidal ideation during his admission," and that "[b]y discharging Plaintiff and not converting Plaintiff's admission to an involuntary commitment under Article 9, the mental health professionals at [the hospital] determined that Plaintiff was not a danger to himself or others." Likely to produce an interesting legal debate; at this point, the court concluded only that the case to be litigated going forward under plaintiff's name.

The post No Pseudonymity in Case Challenging Denial of Gun Rights Based on Alleged Mental Health Problems appeared first on Reason.com.

That there are government officials who politicize the law is about as foundational to the discourse as any complaint I can think of. The criticism is sometimes quite fair. And for the latest example of a soft-on-crime politician flouting law and order, we can look to Texas Gov. Greg Abbott.

Abbott, of course, is no self-styled progressive. But his recent decision to pardon Daniel Perry, who was convicted last year of murdering Garrett Foster, channels the spirit of the progressive prosecutors he criticizes for allegedly refashioning the law to suit their ideological preferences. He just has different targets.

The governor, who last year urged the Texas Board of Pardons and Paroles to recommend a pardon for Perry, doesn't see it that way. "Texas has one of the strongest 'Stand Your Ground' laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," he wrote in a statement yesterday, approving the pardon after the board officially obliged his request. (It's worth noting that the board, whose members are appointed by the governor, circumvented its own requirement that "evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge indicating actual innocence" be submitted to even consider such a pardon.)

It is absolutely true that the right to self-defense is vital. And to argue that Perry—who, prior to killing Foster at a 2020 Black Lives Matter protest, wrote that he wanted to "shoot the [protesters] in the front and push the pedal to the metal"—acted in self-defense is to make a total mockery of that right and those who've had to exercise it.

It is also true that many district attorneys, some of them so-called "progressive" prosecutors, appear to disdain that right. There are the cases across New York City I've covered, for example, where prosecutors are unconscionably seeking lengthy prison terms for people who acted in self-defense but had the audacity to do so with an unlicensed gun. That includes the case of Charles Foehner, an elderly man who shot a mugger in Queens, after which law enforcement brought so many weapons charges against him that Foehner would go to prison for life if convicted on all. That was in June 2023. In November, LaShawn Craig of Brooklyn shot a masked man who'd entered his apartment. Though prosecutors concede the shooting was in self-defense, they also charged him with several weapons offenses, including criminal possession of a weapon, a violent felony.

And then, most famously, there was Kyle Rittenhouse, whose 2021 prosecution for murder polarized much of the nation, despite that, if you knew the facts, it was an obvious example of self-defense—something I made very clear at the time.

There are some interesting parallels between Rittenhouse's case and Perry's case that are hard to ignore. Both men used their guns at protests against police brutality, many of which popped up across the U.S. in the summer of 2020. The shootings happened exactly a month apart. Then their stories diverge considerably, ending in an acquittal and a conviction, because the way they used their firearms was quite different, despite the culture war backdrop being the same. Both of these things can be true.

In July 2020, Perry ran a red light and drove into a crowd of protesters. That in and of itself, of course, is not enough to deduce that he was looking for a fight. His own statements prior to doing so, however, add a great deal of helpful context and show his frame of mind at the time. "I might have to kill a few people on my way to work they are rioting outside my apartment complex," he wrote on social media on May 31, 2020. Also in May, he threatened to a friend that he "might go to Dallas to shoot looters." And then in mid-June, he sent that message about going to a protest, "shoot[ing] the ones in the front," and then careening his car through the hubbub.

This was part of a pattern. Austin police detective William Bursley testified, for instance, that Perry searched on Safari for "protesters in Seattle gets shot," "riot shootouts," and "protests in Dallas live." It is not hard to connect the dots between his searches and messages.

So what about that stand-your-ground defense Abbott alleges the jury nullified? Core to Perry's case and trial was whether he reasonably feared for his life that July evening. Foster indeed had a rifle on him—because open carry is legal in Texas. The Second Amendment does not solely exist for people with conservative views. The big question then: Was Foster pointing the gun at Perry when he approached his vehicle? For the answer, we can go to Perry himself, who told law enforcement that he was not. "I believe he was going to aim at me," he said. "I didn't want to give him a chance to aim at me." But that is not a self-defense justification, as Perry cannot claim clairvoyance.

That the jury reached the conclusion they did is not a mystery, nor is it an outrage. What is outrageous, however, is that a governor who claims to care about law and order has made clear that his support for crime victims is at least in part conditional on having the "right" politics.

The post Daniel Perry's Pardon Makes a Mockery of Self-Defense appeared first on Reason.com.

Today's U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, with the view that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

Judge Milan Smith dissents, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent. The dissent, in particular, argues that (1) Bruen "repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion," (2) "Nothing … in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and (3) concurrences in Bruen reaffirmed the Heller view with regard to felons.

The panel majority responds, among other things, that "we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case." It also takes the view that, "'Simply repeat[ing] Heller's language' about the 'presumptive[] lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve."

The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities.

Note also that the government has already asked the Supreme Court to consider the Third Circuit's Range case, which reached a similar result. That the petition is being held, pending Rahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of the Rahimi holding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.

The post Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights 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.

ATF's Final Rule Definition of "Engaged in the Business" as a Dealer in Firearms amounts to 466 pages of responses to comments and the final rule itself.  Over 252,000 of the 258,000 comments or 98% in favor of the proposed rule were form letters with identical text found online and recommended by (anti-gun) organizations.  Only 5,140 were not form letters.  Of the 99,000 comments opposed to the rule, 80,000 or 81% were form letters.  That means that 18,810 were not form letters.  So more than three times the numbers of opponents filed comments with actual substance as did those in favor.

The final rule is substantially the same as the proposed rule.  See my previous post "'He's at it again!'  Merrick Garland proposes ever-more intrusive ATF regulations."  A number of points that I (and others) made in comments filed in opposition to the proposed rule were taken seriously enough for ATF to reject at length.

One new item stands out.  The Gun Control Act (GCA) excludes occasional sales and purchases of a "personal collection" of firearms from the term "engaged in the business" of dealing in firearms.  The proposed rule defined "personal collection" to include curios and relics and firearms used in recreational activities.  In response to numerous comments criticizing the proposal for not including firearms used for self-defense, the final rule explicitly states that "the term [personal collection] shall not include firearms accumulated primarily for personal protection." Yet nothing in the statute excludes such firearms from being part of a personal collection.

By purporting to exclude the occasional buying and selling of firearms acquired for self-defense from the "personal collection" category, the rule would render the person more likely to be subject to the licensing requirement.  Yet that category was enacted by the Firearm Owners' Protection Act of 1986, which declared that the rights of citizens … to keep and bear arms under the second amendment to the United States Constitution … require additional legislation to correct existing firearms statutes and enforcement policies."  And the Supreme Court stated in D.C. v. Heller that the Second Amendment protects "arms 'in common use at the time' for lawful purposes like self-defense."

In defining "engaged in the business" as a dealer, the rule states that "there is no minimum threshold number of firearms purchased or sold that triggers the licensing requirement," and that "even a single firearm transaction or offer to engage in a transaction, when combined with other evidence … may require a license."  Sounds pretty vague given that engaging in business of dealing in firearms without a license is a serious felony.

The rule purports to create a presumption in civil and administrative proceedings that one is engaged in the business if one "repetitively resells or offers for resale firearms" within 30 days after purchase, or within a year after purchase if the firearms are "new, or like new in their original packaging" or "the same make and model, or variants thereof."  These are activities in which collectors typically engage – sometimes quickly moving the collection up the ladder with more collectible acquisitions and collecting variations of the same make and model.  Nothing in the GCA imposes such time limits.

The rule also purports to create a presumption in civil and administrative proceedings that "a person has intent to predominantly earn a profit" if the person "posts firearms for resale, including through the Internet" or repetitively rents "a table or space at a gun show," and the list of presumptions "are not exhaustive."  Again, these are activities in which collectors typically engage. And the statute excludes from such "predominant intent to earn a profit" occasional sales to enhance a personal collection.

The rule claims that the above rebuttable presumptions do not apply in criminal cases, but says the opposite by stating that "they may be useful to courts in criminal cases, for example, when instructing juries regarding permissible inferences."  Jury instructions are based on statutory text and judicial opinions, not advocacy by the very agency involved in prosecuting alleged violations.

Many comments argued that the rule violates the Second Amendment.  While dictum in Heller did not question the validity of "laws imposing conditions and qualifications on the commercial sale of arms," the new rule – which is not a "law" – redefines "engaged in the business" to include many private, non-commercial sales.

ATF's commentary includes the following fundamental misunderstanding of Supreme Court precedent: "In response to commenters stating that the Department should not use the Heller two-step process, the Department acknowledges that Bruen abrogated the 'two-step' framework of Heller, as 'one step too many,' and rejected the application of means-end scrutiny at the second step."  But it was lower courts that obstructed Heller, not Heller, that invented the two-step framework.  Relying on text and history, Heller rejected means-ends scrutiny (for which Justice Breyer argued in his dissent), and N.Y. State Rifle & Pistol Ass'n v. Bruen reinforced and expanded on that rejection.

In support of its expansion of the licensing requirement, ATF's response seeks to find historical analogues under Bruen in the wrong places.  In 1794, Congress restricted the export of arms and matériel in order to enhance the arming of America at a time when war with Great Britain threatened.  The colonies restricted arms trade with Indians to reduce the threat from hostile tribes.  Massachusetts enacted a gun proving law.  Various laws concerning gunpowder were enacted to ensure a safe, reliable supply.  None of these laws parallels the "how" and the "why" of the rule's radical expansion of the licensing requirement.

ATF's commentary fails to rebut the comments that the agency lacks delegated authority to promulgate the rule.  In enacting the Gun Control Act in 1968, Congress rejected a provision that would have made it a crime to violate a regulation.  Instead, all GCA offenses are defined in terms of violations of "this chapter," i.e., chapter 44 of 18 U.S.C., the criminal code.  The Firearm Owners' Protection Act of 1986 reduced ATF's regulatory authority by changing the original phrase "such rules and regulations as he [the Secretary] deems reasonably necessary" to "only such rules and regulations as are necessary."  Finally, the delegation by Congress to ATF to promulgate explicit, limited regulations negates the power to adopt expansive, general regulations under the rule expressio unius est exclusio alterius.

The commentary also fails to rebut comments citing Supreme Court precedents such as Thompson/Center Arms v. U.S. holding that both criminal and noncriminal applications of a statute must be interpreted consistently and, if ambiguity exists, interpreted against the government in accord with the rule of lenity.

Finally, on some issues ATF is plainly erroneous but sticks to its error nonetheless.  For instance, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts "returning a firearm or replacement firearm of the same kind and type to a person from whom it was received."   18 U.S.C. § 922(a)(2)(A).  ATF adds the limitation that it may be returned only "for the sole purpose of repair or customizing," which it justifies because the phrase "has long been found in the regulations."  Never admit a mistake, especially if it is longstanding.

"As more persons become licensed under this rule, those licensees will conduct more background checks," as the commentary correctly states.  Indeed, that is its purpose.  Since Congress rejected universal background checks, the Biden Administration decided to do the same by regulation.

This rule on "engaged in the business" is the third major set of new regulations set forth by Attorney General Garland, following those on "frames-or-receivers" and "pistol braces."  They were preceded by the Trump Administration's "bump-stock" rule, which is the subject of Cargill v. Garland, which was argued in the Supreme Court this term.  We'll see whether the Court sets limits on what has become a constant pushing of the envelope of regulatory overreach by the executive branch.

* * *

As I posted last week, the Commissioner of the Washington Supreme Court scheduled a hearing on April 17 regarding the stay he issued against the injunction against enforcement of the state's magazine ban that was ruled unconstitutional by the Superior Court for Cowlitz County in State of Washington v. Gator's Custom Guns.  At the hearing, the Commissioner responded to criticism for his issuance of the stay without having time to study the court's 55-page ruling and the state's 32-page motion to stay.  He stated that he received the papers on April 8 at 4:14 pm and issued the stay at 4:58 pm.  He didn't need more time to review the papers because he had done "a lot of research" beforehand and made himself into an expert on the issue; he "anticipated all the arguments the Attorney General would make" and had "boiler plate templates" for the stay order.

Most of the "hearing" consisted of the Commissioner's musings.  A 12-gauge shotgun or a revolver would be good enough for self-defense.  A semiautomatic works fine with 5 or 10 rounds.  Judge Benitez's decision in Duncan v. Bonta holding California's magazine ban violative of the Second Amendment was based on experts who were "snake oil" salesmen.  The arms that pioneers had when Washington was settled were "mind-bogglingly" different than now.  The Commissioner anticipates a decision next week on whether the stay will be made permanent.  Don't hold your breath waiting for it to be lifted.

The post Second Amendment Roundup: ATF redefines "engaged in the business" appeared first on Reason.com.

In Monday's Lazor v. Souders (opinion by Judge Michael Powell, joined by Judges Stephen Powell & Matthew Byrne), the Ohio Court of Appeals upheld a stalking protection order against Souders, based on his deceptively trying to contact a woman he met online, and who had said she didn't want him to contact her:

On or about May 18, 2023, appellant and Lazor began talking on the online dating app "Hinge." As their communications progressed in a positive manner, appellant asked that they move their conversation to Facebook. In response, Lazor asked for appellant's last name so she could conduct a Google search on him. Appellant told Lazor that his last name was Sowders. After a Google search yielded no results, Lazor agreed to communicate with appellant on Facebook.

After interacting for a while on Facebook, appellant asked Lazor for a date. Prior to responding, Lazor decided to investigate appellant further to make sure she was safe going on a date with him. Consequently, Lazor posted appellant's photograph on a "private Facebook community for women." The Facebook group was created for women to post photographs of men and for other women in the group to provide any information, including "red flags," they may have on the individual depicted.

Lazor posted appellant's photograph on May 20, 2023. Several women in the private Facebook group reported negative interactions with appellant, and some indicated he was hostile and dangerous. Upon receiving this information, Lazor blocked appellant on Hinge and Facebook. Appellant then found Lazor on Instagram on May or May 22, 2023, even though Lazor had never provided appellant her Instagram name or handle. Upon finding Lazor on Instagram, appellant messaged her and called her out for blocking him on Hinge and Facebook. Lazor did not respond to appellant's message and instead instantly blocked him on Instagram.

On June 7, 2023, Lazor received a message on Facebook from Tatiana Koblinski. It is undisputed that the Tatiana Koblinski Facebook account was a fake Facebook account appellant had created and which he used to message Lazor. Using that Facebook account, appellant messaged Lazor, claiming that the information she had received from the private Facebook group was not true. Appellant also used the fake Facebook account to "text yell" at Lazor for blocking him on other social media platforms.

Appellant's messages began on the morning of June 7, 2023, and continued into the early morning hours of June 8, 2023. Appellant called Lazor on Facebook at 12:a.m. on June 8, 2023, and last messaged her at 2:a.m. on June 8, 2023. Lazor did not respond to appellant's numerous messages or his call. Sometime on June 8, 2023, Lazor eventually told appellant to stop contacting her or she would call the police. On June 15, 2023, Lazor was served with a defamation lawsuit appellant had filed in Hamilton County. A few days later, Lazor received a cease-and-desist letter appellant had mailed on June 8, 2023.

On June 20, 2023, Lazor petitioned the trial court for and was granted an ex parte civil stalking protection order ("CSPO"). On July 5, 2023, the matter proceeded to a full hearing before a magistrate. Both parties testified. Lazor admitted that appellant had never threatened her. She testified to the effect appellant's conduct had on her, stating she was not sleeping well, she had trouble focusing at work, she feared for her safety because appellant knew where she lives, and she was terrified of being contacted via other fake accounts, including from appellant. Lazor further testified that the incident caused her to change her behavior because she is now reluctant to respond to people reaching out to her online unsolicited.

Appellant testified he never made implicit or explicit threats to Lazor and simply asked that she take down the photograph she had posted on the private Facebook group page. Appellant testified that Lazor did not tell him to stop contacting her until he messaged her on the fake Facebook account. Prior to that time, Lazor had concocted a story about her sister's cancer diagnosis, and whether Lazor had blocked him on Facebook or had deleted her Facebook account due to her sister's "illness," he reached out to her on Instagram out of concern. Appellant denied stalking Lazor and testified he did not have any intent to cause her harm or mental distress.

On July 12, 2023, the [trial court] issued a decision granting Lazor a one-year CSPO and prohibiting appellant from possessing, using, carrying, or obtaining any deadly weapon for the duration of the order….

The court held that the order was justified:

A petition for a CSPO is governed by R.C. 2903.214. It requires the petitioner to establish by a preponderance of the evidence that the respondent engaged in conduct constituting menacing by stalking. "When assessing whether a civil stalking protection order should have been issued, the reviewing court must determine whether there was sufficient credible evidence to prove by a preponderance of the evidence that the petitioner was entitled to relief." …

Menacing by stalking is defined as "engaging in a pattern of conduct [that] knowingly cause[s] another person to believe that the offender will cause physical harm to the other person * * * or cause mental distress to the other person[.]"In determining whether to grant a CSPO, the trial court must view the actions with respect to their effect on the petitioner….

Upon reviewing the record, we find that the evidence presented was sufficient to establish that appellant knowingly engaged in a pattern of conduct that would cause Lazor mental distress. During the hearing, Lazor testified that after she blocked appellant on Hinge and Facebook on May 20, 2023, and on Instagram the following day, thereby taking significant steps to ensure appellant could not contact her, he subsequently used a fake Facebook account to message her multiple times and call her once throughout June 7, 2023, through the early morning hours of June 8, 2023. Lazor testified that while the fake Facebook account ostensibly belonged to a woman, she knew the messages and Facebook call came from appellant. Lazor testified that appellant used the fake Facebook account to "text yell" and confront her about her post.

While appellant testified he did not know Lazor had blocked him on Hinge prior to contacting her on Instagram, he admitted he knew he could not contact her on Facebook because he had either been blocked or Lazor had deleted her Facebook account. Appellant did not rebut Lazor's testimony that his Instagram message confronted her about blocking him. Appellant claimed that all his contacts on social media platforms were either regarding dating and well-being checks on Lazor given her sister's "illness" or to request that she remove her post from the private Facebook group. Appellant admitted he knew Lazor had blocked him on Facebook and Instagram prior to utilizing the fake Facebook account. Appellant claimed the fake Facebook account was an old account he had created for private investigation purposes.

It is not unusual for a trial court to hear conflicting testimony from two different parties. While we acknowledge appellant's testimony explaining or denying his conduct, it was up to the trial court to determine the weight and credibility to afford Lazor's version of the events versus appellant's version. "A trier of fact is free to believe all, part, or none of the testimony of each witness." … Upon review of the record, we decline to substitute our judgment for that of the trial court. Appellant had knowledge he had been blocked on several social media platforms and knowingly used a fake Facebook account to contact Lazor and "text yell" and confront her about her post.

We further find that the evidence presented was sufficient to establish that appellant's actions caused Lazor mental distress. Contrary to appellant's assertion, the trial court's finding that Lazor suffered mental distress was not solely based upon her testimony that she had trouble focusing at work and was not sleeping well. In addition to this testimony, Lazor also testified that she is scared for her safety as appellant knows where she lives, and is terrified of being contacted via other fake social media accounts, including from appellant. Lazor further testified to changing her behavior on how she communicates with others online as she is more apprehensive to respond.

But the court concluded that the prohibition on possessing weapons was unjustified:

Pursuant to [18] U.S.C. 922(g)(8), it is unlawful for any person "who is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner" to possess any firearm or ammunition….

We find that the trial court erred in including the firearm restriction in the CSPO against appellant. It is undisputed that the parties have never met in person and that the only personal contact between them occurred during the full hearing. Under any definition of the term, Lazor is not and never was an "intimate partner" of appellant. Therefore, [18] U.S.C. 922(g)(8) does not apply and does not support the imposition of the firearm restriction.

We further find that the evidence in the record does not support the imposition of the firearm restriction under R.C. 2903.214(E)(1). No evidence was presented that appellant used or threatened to use a weapon to cause mental distress to Lazor. No evidence was presented that appellant even owned a firearm. The firearm restriction therefore does not bear a sufficient nexus to the conduct the trial court was attempting to prevent.

The post Restraining Order Based on Unwanted Online Contact Upheld, but Weapons Restriction Struck Down appeared first on Reason.com.

California state Sen. Anthony Portantino, (D–Burbank) has introduced a bill that would require gun owners to annually register their firearms with the state. The registration information would be available to law enforcement agencies. "SB 1160 will give the state better data and help us understand how many firearms are in private hands and who owns them," said Portantino.

The post Brickbat: You Can Tell Us appeared first on Reason.com.

From Nebraska Attorney General's Opinion no. 23-009, released Dec. 15, 2023 but just posted on Westlaw:

Municipalities lack authority to regulate the possession of firearms and certain weapons in quintessential public spaces, such as parks, trails, and sidewalks. A statute enacted in 2023, L.B. 77, deprives municipalities of regulatory authority over the possession of firearms or other weapons. And municipalities cannot use their common law proprietary authority to evade this regulatory restriction. Additionally, a blanket ban on firearms possession in such spaces would infringe constitutional rights under the Second Amendment and the Nebraska Constitution.

This year, the Legislature passed L.B. 77, which, after becoming law, significantly changes the way the possession, carriage, and sale of firearms and other weapons are regulated in Nebraska. Relevant here, L.B. 77 declared the regulation of the "ownership, possession, storage, transportation, sale, and transfer" of weaponry to be a "matter of statewide concern" and stripped municipalities of nearly all regulatory authority in that space. In the wake of L.B. 77's passage, several Nebraska municipalities [including Omaha and Lincoln] have issued executive orders that purport to restrict or ban the possession of weaponry on property the municipality owns or controls. These orders include public buildings (such as courthouses), and in some cases expand beyond buildings to include quintessential public places that are usually held open to the public at large, such as parks, trails, and sidewalks.

You have asked whether existing law "prevent[s] Nebraska municipalities from regulating the possession of firearms and other weapons in public spaces, e.g., public parks, trails, and sidewalks." It does. You have also asked whether additional legislation would be necessary to prevent municipalities from regulating weapon possession in these places. None is needed. Municipal action— regardless of the form it takes (enacted ordinance, executive order, informal policy, etc.)—that restricts or bans the possession of weaponry in quintessential public spaces, like those public places identified in your opinion request (parks, trails, sidewalks, and the like), violates at least two rules of law.

First, L.B. 77 forbids municipalities from "regulat[ing] the … possession [[and] transportation … of firearm or other weapons, except as expressly provided by state law." The public spaces identified in your request are not public buildings or like areas where municipal corporations can properly exercise significant common law ""proprietary' authority; as such, restrictions on weapon possession in places such as parks, trails, and sidewalks necessarily are regulatory in nature. No matter the form of the restriction nor the way in which it is described, these prohibitions are in conflict with L.B. 77.

Second, there is an individual constitutional right to bear arms in public secured by the constitutions of the United States and the State of Nebraska. Thus, even if a municipality possessed and could properly exercise proprietary authority over quintessential public spaces such as parks, trails, and sidewalks, a total ban or significant restriction on the possession of weaponry would violate those constitutionally protected rights.

Here's more from the constitutional discussion:

Both the Second Amendment to the United States Constitution and Article I, Section 1, of the Nebraska Constitution secure the right of Nebraska citizens ""to keep and bear arms." …

That said, not every exercise of municipal proprietary authority that restricts firearm or other weapon possession is unconstitutional. Both Bruen and Heller recognized that there are some "sensitive places" where it is constitutionally permissible for the possession of weapons to be "altogether prohibited." "Courthouses" along with "legislative assemblies" and "polling places" have been offered as examples, Bruen, 597 U.S. at 30, as have "schools and government buildings." The precise scope of the doctrine remains unsettled: Bruen rejected an overly broad conception—any location where "people typically congregate and where law-enforcement … professionals are presumptively available"—but left the task of outlining a ""comprehensive definition" to a later date….

[T]he fact that one portion of an executive order or other municipal action is unconstitutional does not necessarily render that action unlawful in its entirety. Many public buildings where government business is conducted can be fairly described as "public places;" some, like courthouses, are even presumptively open to members of the public. But there are many obvious and material differences between a courtroom and a public park or trail or sidewalk. That a municipality cannot constitutionally ban the possession of firearms or other weapons in a park or on its sidewalks does not mean that weapons must be allowed in the public gallery of a courtroom or other sensitive place.

Because your question is addressed to public spaces such as parks, trails, and sidewalks, not public buildings, this Opinion does not address where the "sensitive places" line exactly lies, which is a subject of ongoing jurisprudential and scholarly debate. Because state law already prohibits municipalities from regulating firearm possession, it suffices for present purposes to note that the sensitive places doctrine is but one of several possible reasons why constitutional limitations on the possession of weaponry may differ across various locations that can fairly be described as a "public space." …

Existing law prevents Nebraska municipalities from regulating the possession of firearms or other weapons in public spaces like those identified in your opinion request, namely "public parks, trails, and sidewalks." Municipalities have sharply limited proprietary authority over these spaces, and L.B. 77 deprived municipalities of all regulatory authority over the possession of weaponry. Consequently, municipalities have no lawful means of restricting or prohibiting the possession of firearms or other weapons there.

Furthermore, the right to publicly bear arms for self-defense provides a constitutional backstop that would preclude a blanket prohibition on weapon possession in those spaces, regardless of whether a municipality sought to implement such a restriction or prohibition by way of regulation or through an exercise of its common law proprietary authority.

The post Nebraska Municipalities May Not Ban Guns from Public Parks, Trails, and Sidewalks appeared first on Reason.com.

In July 2021, Florida deputies arrested a man for shooting down their drone. Last week, a judge sentenced him to four years in federal prison, but not for destruction of property: He was sentenced merely for possession of a firearm as a felon.

According to a criminal complaint filed by an agent with the Department of Alcohol, Tobacco, Firearms and Explosives, deputies with the Lake County Sheriff's Office responded to reports of a possible burglary at a large commercial property in Mount Dora, Florida. Upon arrival, they found a front entry gate that had been "damaged by impact," as well as "unsecured doors on some of the buildings at the facility."

Thinking there could still be intruders present on the 10-acre site, deputies flew an unmanned aerial vehicle over the property to check it out. As it flew, however, they heard two gunshots ring out and saw the drone "slowly spinning downward and emitting smoke" before it "crashed onto the metal roof of an outbuilding, became suspended on a rain gutter, and caught fire."

Deputies investigated the source of the gunshots and encountered Wendell Goney, who lived nearby. Goney first denied shooting the drone but admitted to it after learning the craft was equipped with cameras. Goney claimed this was the first time he had ever shot at a drone, but he told deputies that he had been "harassed" by people flying them over his property. He said he had bought a .22 caliber rifle to put a stop to it and hadn't known that this particular drone belonged to law enforcement.

When deputies asked, Goney admitted that he was a convicted felon and therefore ineligible to own a firearm under federal law. They arrested Goney, who gave them permission to search his house and told them exactly where to find the rifle.

The criminal complaint noted that Goney "has approximately 23 prior felony convictions. He has been sentenced to more than a year in state prison on multiple occasions, including 1997, 2007, 2009, and 2013." His offenses included forgery, burglary, and multiple instances of grand theft, including the theft of a rifle in 1995. Most recently, he was sentenced in 2013 to two years and eight months in prison on charges including simple battery, aggravated assault of a law enforcement officer, and possession of cocaine.

Goney pled guilty in October 2023. Last week, U.S. District Court Judge Gregory Presnell sentenced Goney to four years in prison, followed by three years of supervised release during which he would have to participate in both drug and mental health treatment programs. He would also be required to pay more than $29,000 in restitution to the Lake County Sheriff's Office to replace the drone.

While Goney was initially charged with both destruction of law enforcement property and possession of a firearm, prosecutors dropped the former charge in exchange for his plea. Noting in their sentencing memo that federal guidelines "call for a recommended sentencing range of between 77–96 months," prosecutors asked for "a sentence at the low end of the applicable sentencing guidelines—77 months." The memo noted that "such a sentence would be slightly more than twice the length of the longest of the prison sentences the defendant has served to date."

But is that a just sentence? Goney's previous longest sentence was two years and eight months for crimes involving assaulting other people, including police; in this case, on the other hand, Goney's only aggressive act was toward an unmanned flying drone, and his only charged offense was possessing a gun without the government's permission.

While it seems sensible to bar felons from owning guns—especially those with such unsavory records as Goney's—the act presents uncomfortable questions of both liberty and constitutionality.

For one, the federal ban on firearm ownership necessarily sweeps up people who have committed nonviolent offenses, even those not involving firearms. In 1995, Bryan Range fraudulently obtained $2,458 in welfare benefits; when caught, Range repaid the money, paid a small fine, and served three years of probation. But under federal law, Range also lost the right to own a firearm as a result of his state misdemeanor conviction. In June 2023, the U.S. Court of Appeals for the 3rd Circuit ruled that Range's ban violated the Second Amendment's guarantee of a right to keep and bear arms.

Unlike Range, Goney's prior convictions did involve the use of violence. But who is supposed to be protected by keeping Goney from owning a firearm? At the time of his arrest, Goney had not been in trouble with the law for several years, and his only act of aggression was aimed at a drone he thought was "harassing" him.

The original criminal complaint notes that Goney is a felon and "has never had his civil rights restored by executive clemency following these felony convictions." Indeed, the only way for Goney to legally regain his Second Amendment right to own a firearm is through a pardon by the governor.

People convicted of crimes—even felonies, even those involving violence—do not cease to be citizens, or human beings, as a result of their sentences. Once their sentences have been served, they should have the ability to regain the rights they've lost—including the rights to vote, to hold public office, and to serve on juries. The right to bear arms is just as essential.

The post Florida Man Sentenced to 4 Years in Federal Prison After Shooting Down a Drone appeared first on Reason.com.

The order came down today; it noted that no judge called for a vote on the en banc rehearing petition. Here's my post on the panel decision, from September.

[* * *]

California Restriction on Gun Ads That "Reasonably Appear[] to Be Attractive to Minors" Likely Unconstitutional

From Junior Sports Magazines, Inc. v. Bonta, decided today [Sept, 13, 2023] by Ninth Circuit Judge Kenneth Lee, joined by Judges Randy Smith and Lawrence VanDyke:

This case is not about whether children can buy firearms. (They cannot under California law.) Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)

Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad "reasonably appears to be attractive to minors." So, for example, an ad showcasing a safer hunting rifle with less recoil for minors would likely be unlawful in California. Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it "materially" and "directly" advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar.

While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not "directly" and "materially" further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines' Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment "significantly" decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government's muzzling of speech.

California's law is also more extensive than necessary, as it sweeps in truthful ads about lawful use of firearms for adults and minors alike. For instance, an advertisement directed at adults featuring a camouflage skin on a firearm might be illegal because minors may be attracted to it….

Judge VanDyke concurred, adding:

California wants to legislate views about firearms. The record for recently enacted California Assembly Bill 2751 (AB 2751) indicates a legislative concern that marketing firearms to minors would "seek[] to attract future legal gun owners," and that that's a negative thing. No doubt at least some of California's citizens share that view. They may dream that someday everyone will be repulsed by the thought of using a firearm for lawful purposes such as hunting and recreation. But just as surely some of California's citizens disagree with that view. Many hope their sons and daughters will learn to responsibly use firearms for lawful purposes. Firearms are controversial products, and don't cease to be so when used by minors. But as the majority opinion explains well, there are a variety of ways a minor can lawfully use firearms in California. And the State of California may not attempt to reduce the demand for lawful conduct by suppressing speech favoring that conduct while permitting speech in opposition. That is textbook viewpoint discrimination.

That is precisely what California did in Assembly Bill 2751. Under this law, those who want to discourage minors from lawfully using firearms (such as for hunting or shooting competitions) are free to communicate their messages. Certain speakers ("firearm industry members") who want to promote the sale of firearms to minors, however, are silenced. I agree with the majority opinion that, even assuming intermediate scrutiny applies, California's nascent speech code cannot withstand it. I write separately to emphasize that laws like AB 2751, which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny. Our circuit's precedent is ambiguous about whether viewpoint- discriminatory laws that regulate commercial speech are subject to strict scrutiny. In the appropriate case, we should make clear they are…

Anna M. Barvir (Michel & Associates PC) argued for plaintiffs; Chuck Michel (Michel & Associates) and Donald Kilmer also represent plaintiffs. Thanks to Don Kilmer for the pointer on the denial of en banc rehearing.

The post Ninth Circuit Denies Rehearing En Banc of Panel Decision Holding Gun Ads Restriction Is Likely Unconstitutional appeared first on Reason.com.

Gov. Janet Mills has appointed former Maine Supreme Judicial Court Justice Donald Alexander to overhear a request by Oxford County commissioners to remove Sheriff Christopher Wainwright. Wainwright sold dozens of firearms from evidence without recording the transactions or notifying commissioners. Wainwright said he used the proceeds from the sales to buy equipment for the sheriff's office. The commissioners said they have seen no proof of that claim. Wainwright apologized for his actions but said they don't warrant his removal.

The post Brickbat: Finders, Keepers appeared first on Reason.com.

The Guardian (Miranda Bryant) reports:

Finland plans to open more than 300 new shooting ranges to encourage more citizens to take up the hobby in the interest of national defence.

It is hoped that shooting in the Nordic country—which last year became Nato's newest member and which shares a 830-mile (1,330km) border with Russia—could become as popular as football or ice hockey.

Ah, the elephant bear in the room, which in this instance the article does talk about.

There are about 670 shooting ranges in Finland, down from about 2,000 at the turn of the century. By 2030, the government plans to increase the number to about 1,000….

Since Russia's invasion of Ukraine, the popularity of voluntary training courses aimed at teaching reservists and civilians how to defend Finland has doubled. There has also been a big increase in the number of Finns applying for gun licences….

This of course puts one in mind of The White Death. Keep up the spirit, Finns.

The post Make Finland the Land of Shooting Badassery Again appeared first on Reason.com.