Firearms law blog update

 Hi gang.

So there are 2 cases that have come out in the last couple of weeks that I want to comment on.

Young v. Hawaii, 9th cir, which holds that there is no right to carry a firearm outside the home at all. 

GOA v. Garland, AG of the US, 6th cir, which holds that a bump stock is not a machine gun as a preliminary matter.

Lets talk about each case separately, and what it means.

In a prior case, Perrutta v. San Diego, the 9^th cir has held that there is no right to concealed carry of firearms.

In this case, Young v. Hawaii, the 9^th cir has held that there is no right to open carry.

Effectively ruling that there is no right to carry a firearm outside your home.

The dissent sharply criticizes the majority opinion that it is just plain wrong, and goes into why.

This means they CAN issue permits, but if they chose not to, you are out of luck.

I expect this case will go before the supreme court. It is UNLIKELY they will say that there is a right to concealed carry, but with the majority as they are, there is a good chance, IF THEY AGREE TO HEAR THE CASE, that they will say that there has to be SOME right to carry a firearm.

 

Read the opening paragraphs of Judge O’Scanlain’s dissent (starts on page 128). He BLASTS the majority opinion.  To say that he is unkind is generous. He signs his dissent “respectfully” but, this dissent is anything but respectful.

 

Judge R. Nelson (starting on 195) also attacks and blasts the majority opinion, and says that 2A rights have been sent off to 3^rd rate – red headed step child- level of second class right.

 

The good news—this case is only the law in the 9^th cir. Out west—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (as well as non-states Guam, and Northern Mariana Islands)  

The bad news—this could expand to other circuits, including the 4^th (that covers Virginia, West Virginia, Maryland, North and South Carolina) and 6^th (which covers Ohio, Indiana, and other states in that area) 7^th (Illinois), 5^th (Texas, Alabama, Mississippi, etc) 11^th (Florida and Georgia).

 

Stay tuned, this fight ain’t over. 

 

GOA v. Garland is the 6th cir bump stock case.

In this opinion, the 6th cir. held that the  elements for a preliminary injunction on the bump stock ban were met. 

Lets start at the beginning.  What is a bump stock? 

A bump stock is an accessory that is attached to a rifle that uses the recoil of the rifle to push the shooters finger off the trigger, resetting the trigger, and then by use of spring pressure, force the rifle back forward, reengaging the trigger, and firing the rifle, which results in a repetition of the cycle. It mimics the concept of a machine gun, because it works as fast as the trigger can be pressed. But it is also useful for disabled persons who have difficulty operating the trigger. However, it is not as easy to operate  bump stock as you might first think, it requires some practice. And worse yet, a trained operator can bump fire a rifle without a bump stock, making this MUCH more complicated. Is my finger now a machine gun?

The Trump administration redefined bump stocks as machine guns in the wake of the Las Vegas shooting. This lawsuit was one of many that resulted.

What is a preliminary injunction in regards to this case?

A preliminary injunction is an order from a court that the law being questioned cannot be enforced.

What are the requirements for a preliminary injunction?

There are 4 which become 3 when the government is the defendant. 1- that the plaintiff (Gun Owners of America and several individuals) have a strong likelihood of success at the end of the case 2- that they would suffer an irreparable injury and 3- the issuance of the injunction would not harm others and 4- public policy is in their favor. 3 and 4 are merged when the government is the defendant.  To win a preliminary injunction, the plaintiff MUST SHOW all points in his/her favor. Not some, all. 

In this case, the trial level court held that there was not a likelihood of success on the merits. The court of appeals held that there was a substantial likelihood of success, reversed the trial court, and sent it back for trial. 

This case is a LONG way from trial, and the trial court has been proceeding for a while while the court of appeals was deciding this issue. 

In essence, the court of appeals held that because the ATF just reversed its ruling on whether a bump stock is a machine gun, after YEARS of holding that it was not, that the process was illegal. There is a short discussion on whether the agencies opinion should be given any weight. The court holds that in civil matters, that the opinion of the agency should be given deference, but in a criminal matter, like this, that it was completely inappropriate for the court to give any deference to the opinion of the agency. (the discussion is called Chevron deference) .

The trial court found that 2 definitions of a machine gun were possible, and gave deference to the government. The 6th cir held that deference was in appropriate and then goes through statutory interpretation of the meanings of the words "single function of the trigger" and finds that a bump stock is not a machine gun. (page 35). 

They then concede that this will create a circuit split and is likely to lead to an appeal to the supreme court which they will need to resolve. 

Note that this is a 3 judge panel decision, not the full court, and the ruling applies only to in the 6th cir. The 10th cir and the DC Cir have ruled otherwise. 

SO, again, this ain't over folks, stay tuned, and make sure your popcorn is fresh. 

Jason