Under-the-radar cases that could reshape gun laws

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SEPTEMBER 14, 2021
Good morning, Bulletin readers. In a new article, we look at lower court cases with potentially huge consequences for Second Amendment jurisprudence. Meanwhile, House legislators work to include President Joe Biden’s $5 billion pledge for community gun violence prevention in their budget bill and Austin, Texas, reaches a grim milestone.— Tom Kutsch, newsletter editor
WHAT TO KNOW TODAY

NEW from THE TRACE: Four under-the-radar cases that could change the landscape of firearms regulation. Legal challenges to gun restrictions have been building since 2008, when the Supreme Court’s landmark decision in District of Columbia v. Heller established the right to own a firearm for self-defense. The ruling struck down a ban on handgun ownership, but it left the constitutionality of other gun restrictions up in the air, and over the last decade, justices have refrained from issuing any other major rulings to further define the extent of people’s rights to possess firearms. “There’s an enormous amount of uncertainty about what exactly the limits of the Second Amendment are, and that sort of uncertainty generates litigation,” said gun law expert Timothy Lytton. From bans on large-capacity magazines to age restrictions on handgun buyers, Brian Freskos previews four big lower court cases that experts say could leave a lasting imprint on Second Amendment jurisprudence.

House committees include $5 billion for community-focused violence intervention in budget draft. The money is currently split evenly between the Judiciary and the Energy and Commerce Committees and reflects Biden’s call for the historic investment in his job and infrastructure proposal in April. House committees are currently marking up the precise text of the Build Back Better Act, the massive budget bill Congressional Democrats are attempting to pass using reconciliation. The proposed $5 billion funding boost for anti-violence initiatives echoes a request by Fund Peace, a coalition of Black- and Brown-led groups formed in February amid efforts to garner financial help from the government for struggling community programs that have long grappled with small budgets and sporadic funding.

Two middle schoolers detained for reportedly planning a mass shooting. The 13- and 14-year-old boys at Harns Marsh Middle School in Lee County, Florida, about two hours away from where the Parkland mass shooting was carried out, were arrested late last week for allegedly actively planning an attack. Police said the two had researched the Columbine shooting and studied how to build bombs and purchase guns on the black market. “I’m certain that my team of dedicated deputies and detectives acted promptly, investigated thoroughly, and prevented a very violent … act,” the local sheriff said.

Man who allegedly threatened to shoot Nancy Pelosi pleads guilty. Cleveland Meredith Jr., 53, admitted to one count of making interstate communication of threats after driving from Colorado to Washington, D.C., on January 6 with a pistol, rifle, and 2,500 rounds of ammunition. He admitted to texting a relative about “putting a bullet in [Pelosi’s] noggin on Live TV.” During a hearing, he told the presiding judge his words were “political hyperbole.” In exchange for Meredith’s guilty plea, prosecutors dropped three D.C. weapons charges against him. He was the 65th of close to 600 defendants to plead guilty to charges related to the Capitol insurrection.

Cache of airsoft guns draws large police response in Washington, D.C. On Saturday, officers temporarily detained two people on suspicion of having a trove of guns in their truck near the Capitol; the items turned out to be toy replicas. The false alarm came as city officials and U.S. Capitol Police have been preparing for the possibility of unrest and violence ahead of a right-wing rally on September 18, intended to honor the people charged in the insurrection. More from The Trace: Since 2015, police have fatally shot 243 people who had been holding toy replica guns, according to a Washington Post database. Alain Stephens has reported on the lucrative licensing deals that gun manufacturers make with toy companies.
DATA POINT

60 — the number of homicides in Austin, Texas, so far this year, the deadliest one on record with more than three months still to go. Last year, the city had 48 homicides; the previous record for homicides was 59 in 1984. [Austin American-Statesman]
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Four Under-the-Radar Cases That Could Reshape U.S. Gun Laws
From bans on large capacity magazines to age restrictions on gun buyers, legal experts point to some of the lower court battles that could leave a lasting imprint on Second Amendment jurisprudence.

By Brian Freskos Sep 14, 2021

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Any gun case that reaches the nation’s highest court is bound to drum up widespread attention. But there are a number of smaller-profile lawsuits making their way up the legal ladder that could herald major shifts in U.S. gun policy. These cases touch on a gamut of Second Amendment issues, from bans on large-capacity magazines to age restrictions on handgun buyers.

The number of legal challenges to gun restrictions has been building since 2008, when the Supreme Court’s landmark decision in District of Columbia v. Heller established the right to own a firearm for self-defense. The ruling struck down a Washington, D.C., ban on handgun ownership, but it left the constitutionality of other gun restrictions up in the air, and over the last decade, justices have refrained from issuing any other major rulings to further define the extent of people’s gun rights.

“There’s an enormous amount of uncertainty about what exactly the limits of the Second Amendment are, and that sort of uncertainty generates litigation,” said Timothy Lytton, a professor at Georgia State College of Law and editor of the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts.

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John Donohue, an economist and law professor at Stanford University, said another factor is that gun rights proponents believe they will be more successful in winning favorable court rulings after the ideological makeup of the federal judiciary shifted to the right during former President Donald Trump’s term in office. Trump installed three new conservative Supreme Court justices and more than one-quarter of active appellate court judges.

Trump “greatly expanded the number of judges who have really bought into the notion of an expansive Second Amendment,” Donohue said. “Everybody in the gun lobby thinks now is their time, and they want to get these cases before the courts.”

Much attention has focused, lately, on the first Second Amendment case the Supreme Court is set to hear in more than a decade: a challenge to New York’s restrictions on carrying concealed firearms in public, which is set for oral argument this fall and could reverberate across the country.

But The Trace has compiled a list of other cases that legal experts say could leave a lasting imprint on Second Amendment jurisprudence. The list is not exhaustive, and it’s important to note that with many of the rulings discussed below, other courts have reached different conclusions, leaving the constitutionality of gun restrictions in question.

Gun Owners of America v. Garland
In 2017, a man used guns equipped with bump stocks to kill at least 60 concertgoers on the Las Vegas Strip. The shooting prompted the Trump administration to ban the attachments, which allow semiautomatic rifles to be fired at a faster rate, turning them into de facto machine guns. To do this, the Bureau of Alcohol, Tobacco, Firearms and Explosives reclassified bump stocks as machine guns, which have been barred from civilian production since 1986, and mandated that owners destroy their bump stocks or turn them over to authorities. Anyone found to be in possession of the devices past the date of the ban was in violation of the law.

The regulation triggered a flurry of lawsuits. One is Gun Owners of America v. Garland, in which gun rights groups and firearm owners argue that the ATF overstepped its bounds. A federal district court judge refused to stop the bump stock ban from taking effect in March 2019, but his ruling was overturned by a three-judge panel from the 6th Circuit Court of Appeals in Ohio. The panel’s decision was split 2-to-1 — with the majority finding that the ATF had misinterpreted federal gun statutes in classifying bump stocks as machine guns — and it marked a significant break from other appellate courts that have upheld the ban. The full 6th Circuit is now slated to hear the case.

Hirschfeld v. ATF
Federal law prohibits licensed gun dealers from selling handguns to anyone under the age of 21. That was a problem for Natalia Marshall, an 18-year-old equestrian assistant trainer in rural Albemarle County, Virginia, who wanted a gun after obtaining a protective order against an abusive ex-boyfriend.

Marshall was turned away when she attempted to purchase a handgun from Dick’s Sporting Goods in 2018. She decided to sue the ATF, contending the federal age restrictions were unconstitutional. District Court Judge Glen Conrad, a George W. Bush appointee, dismissed the complaint, but his ruling was reversed by the 4th Circuit Court of Appeals in Richmond, where a divided three-judge panel concluded that the law had relegated 18-to-20-year-olds “to a second-class status.”

The 4th Circuit’s ruling stands in contrast to a previous decision by a federal appeals court in New Orleans that upheld the age restriction. The full 4th Circuit is expected to rehear the Hirschfeld case, and the losing side will likely appeal. Legal experts say the divergent rulings at the appellate level increase the likelihood of a Supreme Court review, jeopardizing a restriction that’s been on the books for more than 50 years.

Hirschfeld is not the only recent case dealing with prohibitions on gun ownership among specific groups of people. The Supreme Court in April declined to review a lawsuit by a Washington State resident who was unable to buy a gun because he had been involuntarily committed for mental health treatment when he was 17 years old. More recently, a federal appeals court in New York upheld a ban on gun possession for undocumented immigrants.

Duncan v. Bonta
At least nine states and the District of Columbia have placed limits on the capacity of ammunition magazines, reasoning that when criminals can fire more shots without having to reload, casualties are higher.

After California outlawed magazines capable of holding more than 10 rounds in 2016, the California Rifle & Pistol Association and several gun owners sued. In Duncan v. Bonta, they argue that the state’s prohibition on larger capacity magazines is a violation of the Second Amendment as well as the Constitution’s takings clause, which restricts the government from seizing people’s property without justly compensating them. (The ban gave owners of high-capacity magazines 90 days to surrender or sell them before being subject to prosecution.)

Judges have twice sided with the plaintiffs, but those rulings could be reversed by the 9th Circuit Court of Appeals, where an 11-member panel is reconsidering the case. Its decision is likely to influence the outcome of two other cases in California challenging the state’s ban on assault weapons.

Donohue, the Stanford professor, said that while courts in other parts of the country have upheld banning assault weapons and limiting magazine capacities, a ruling against California’s laws would bolster plaintiffs seeking to overturn similar statutes in other states.

“Right now, there are splits on a number of these issues,” Donohue said. “At some point, I think the Supreme Court will step in and decide. But for the time being, it’s a divided country in terms of what is permissible.”

Smith & Wesson v. Bruck
For decades, cities and victims of gun violence have used the legal system to try to gain access to the internal records of gun companies, believing they will shed light on their conduct and force the industry to reform. But those efforts have long been stymied by a 2005 federal law that shields gun manufacturers from most lawsuits.

New Jersey Governor Phil Murphy’s administration attempted to bypass that hurdle in October by subpoenaing Smith & Wesson for internal documents as part of a state investigation into advertising fraud, a crime for which the gun industry’s special legal protections do not apply.

In Smith & Wesson v. Bruck, the company contends that the subpoena should be quashed, denouncing it as a “shadow pressure campaign.” District Court Judge Julien Xavier Neals, a recent Biden appointee, disagreed, and he dismissed the suit in August. Smith & Wesson has appealed that ruling.

There are other cases that may also yield internal gun industry documents. One is a lawsuit against Remington brought by families of victims of the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut. Another was filed by the city of Gary, Indiana, against a number of gunmakers, including Smith & Wesson; a judge is set to decide in September whether those defendants would have to turn over 25 years’ worth of records.

Lytton, the Georgia State professor, says New Jersey’s investigation into Smith & Wesson harks back to the ‘70s and ‘80s, when litigation against cigarette makers prompted state attorneys general to begin probing the tobacco industry. But whereas the tobacco cases netted major reforms, Lytton said there’s no telling if investigations of gun companies will achieve the same result.

“With pretty much any other type of product, when there’s massive casualties or losses of life, there’s usually a shakeup or things move … That has not been true with firearms,” Lytton said. “There’s something sui generis about firearms in America.”

Additional reporting by Will Van Sant.

Correction: A previous version of this article used the outdated title for the legal dispute between Smith & Wesson and New Jersey. Since the state’s acting attorney general, Andrew Bruck, was appointed in July 2021, the case is now known as Smith & Wesson v. Bruck, not Smith & Wesson v. Grewal.

Brian Freskos
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Brian Freskos is a Chicago-based staff writer who covers the Midwest. His work has primarily focused on gun trafficking and community-based violence prevention.

Huh. I haven't seen any cities burning down from right-wing rallies or "peaceful protests". Only seems the "tolerant left" causes those issues. And all the public celebrity threats of bombing the white house (Madonna) and that one washed up old hag holding a prop of Trumps' severed head...

There was the premeditated riot the Pink Hat protesters staged at the Kavanaugh hearings. They rushed past the Capital Hill police and refused to leave. That's the only riot I can remember in DC. When do we start prosecuting them and ruining their lives?

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SEPTEMBER 17, 2021
Good morning, Bulletin readers. We’re reviving “Ask The Trace,” a special project driven by the curiosity of readers like you. Fresh reporting sheds light on the historical overlap between segregated communities and gun violence. And Wayne LaPierre and the NRA respond to the New York AG in court. — Tom Kutsch, newsletter editor
WHAT TO KNOW TODAY

NEW: Ask The Trace! Is there something that just doesn’t make sense to you when it comes to guns and gun violence in the U.S.? A statistic you’ve been searching for, but haven’t been able to locate? We’re reviving our project driven by reader curiosity. You can read past articles from the series on our site, or submit your questions using the form here.

The link between government redlining and high rates of gun violence. The Philadelphia Inquirer took an in-depth look at the neighborhoods where gun violence is concentrated, almost entirely affecting Black and brown residents. There are 57 city blocks where 10 or more people have been shot since 2015. In those areas, the poverty rate is close to double the city average, house-vacancy rates are three times the city average, and life-expectancy rates are about three years lower than the state average. But the link between areas with structural disadvantages and high rates of violence goes back much further: 53 of the same 57 blocks were areas that the federal government labelled as “hazardous” or “declining” in maps from 1937. Such maps were instrumental in the process of redlining, which codified residential segregation. From The Trace: Up The Block is our resource hub for Philadelphians affected by gun violence.

The NRA and its CEO asked to dismiss New York AG’s amended complaint against them. Letitia James filed her updated complaint last month. In a follow-up motion yesterday, Wayne LaPierre's attorney argued, in part, that James has failed to show that LaPierre is at fault for or knew that financial arrangements he had with the NRA were improper. In its own motion, attorneys for the NRA argued, in part, that James is blocked from making certain claims in New York state court because they arose during the group's recent failed bankruptcy. Sean Delany, an attorney specializing in nonprofit law who once led the charities bureau of the New York Attorney General's Office, said the NRA may succeed through its motion in getting the court to foreclose the dissolution option because James has not argued that the NRA is a sham organization with no charitable purpose, the bar for justifying such a severe penalty. But Delany described much of the remaining arguments in both motions as "fantastical" and "subpar" and said the judge will likely let the case against the NRA go forward, with the removal of executives and the board of directors as potential outcomes. "These motions focus exclusively on the steps the defendants have supposedly taken — I would say to evade scrutiny, they would say to clean house," Delany said, "and do not address the bases for this case having been brought originally." — Will Van Sant, staff writer

There were 343 mass shootings more than expected during the pandemic. That’s according to a research letter published this week in JAMA Network Open, which analyzed Gun Violence Archive’s count of mass shootings — defined as four or more injured — from January 1, 2014, through June 30, 2021. Tracking shootings from April 16, 2020, through the end of June 2021, the authors observed that the above average rates of mass shootings led to 217 more deaths and 1,498 more injuries. Over the 15-month period of study, the additional 0.8 mass shootings per day meant 0.5 more people killed and 3.4 more injured per day. The notable increase was “consistent with the notion that mass shootings, an extreme form of violence, may be influenced by social and economic factors,” the researchers wrote, noting the pandemic’s “sudden and additional psychological and financial strains across society.” From The Trace: Rising mass shootings hit Black neighborhoods hardest last year.

DOJ launches review of law enforcement grants to ensure recipients comply with civil rights law. The 90-day review, which Associate Attorney General Vanita Gupta announced in a memo yesterday, includes grants to law enforcement agencies, correctional facilities, victim support groups, community organizations, research institutions, and more. The DOJ’s grant-making arm currently gives out more than $4 billion per year, and the department wants to increase that to $7 billion in the fiscal year 2022.
DATA POINT

4 — the number of young Philadelphians shot in the past week who were current or recent students at Simon Gratz High School. Only one survived. On Wednesday, Principal Le'Yondo Dunn closed the school for a “day of healing.” [ABC 6 news]
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