This Month in 2A News: November 2023

— William LawsonCADRE Dispatch

Second Amendment news flies fast and furious these days, thanks to the 2022 Supreme Court landmark pro-2A Bruen Decision. So, Safariland is inaugurating a monthly column to keep you updated on all things 2A. This column will appear near the end of each month and cover news items from the previous 30 days or so. Space prohibits deep discussion of any one topic, but this overview will point you toward anything you may have missed. There’s plenty to talk about, so let’s hit it.

Second Amendment Text - 2A news

Notable 2A Court Decisions of November, 2023

Bruen has sparked numerous 2A challenges against anti-gun laws, as well as the flurry of new Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) rules coming from the Biden Administration. Let’s begin with the states and then move on to the ATF.

Oregon Gun Law Ruled Unconstitutional

You may recall last year’s fight over Oregon Measure 114, the ballot initiative hailed as the strictest gun control law in the nation. Prominent gun control groups, backed by activist clergy and millions of out-of-state dollars, pushed through this initiative, just squeaking it by with 50.7 percent of the vote. Initiative 114’s most prominent provisions include an “assault weapon” ban, magazine capacity restrictions, and enhanced background checks, including a face-to-face interview, before purchasing a firearm.

The initiative was criticized by 2A advocates, not just for its restrictions, but because the legislature had not even funded its implementations. Many Oregon sheriffs refused to enforce it, and the FBI immediately said it could not handle the increased background checks.

Oregon Measure 114 - 2A News
Oregon Measure 114 may be on its way to the Oregon State Supreme Court.

Gun rights groups immediately filed multiple lawsuits in state and federal courts. The federal challenges have, so far, been unsuccessful. But a Gun Owners of America lawsuit challenging Initiative 114’s legality under the Oregon state constitution has resulted in the magazine restriction and the permit-to-purchase scheme being declared unconstitutional.

The State of Oregon is appealing the decision to the Oregon Supreme Court. There is some question about whether that court will accept the appeal. If so, the Oregon constitution includes the right to keep and bear arms, so it will be interesting to see how it goes. It’s worth noting that all seven Oregon Supreme Court Justices were appointed by Democrat governors. That doesn’t mean they will ignore the state constitution, but it spices things up.

Rest assured that anti-2A groups are watching this one closely, especially since their tactics have shifted from federal gun bans to state-level actions. We can expect more like this if they win in Oregon. Stay tuned.

Maryland Permit to Purchase Struck Down

Moving east, the 4th US Circuit Court of Appeals took down Maryland’s Handgun Qualification License, citing both the Bruen and Heller Decisions. Maryland requires gun registration and a concealed carry permit, but also incorporates the extra step of acquiring a special license to own a handgun. That license requires extra training, plus renting a handgun from the instructor just to take the course. The applicant then has to wait up to 30 days to receive the license.

The court’s majority opinion states that the Second Amendment protects the right to ‘keep and bear” arms. Maryland’s law violates this premise by restricting the ability to “purchase, rent, or receive” handguns, which are “arms.” Judge Julius Richardson writes that ‘If you do not already own a handgun, then the only way to ‘keep’ or ‘bear’ one is to get one, either through sale, rental, or gift. And the challenged law cuts off all three avenues.”

Maryland is considering an appeal to the 4th Circuit’s en banc panel, but the state seems to be concerned about the case proceeding to the US Supreme Court. Meanwhile, the Maryland State Police say they will continue enforcing the law until the decision is either stayed, pending appeal, or the 4th Circuit issues a mandate, which would happen if Maryland does not appeal. The court would issue that mandate on December 11. This is a strong pro-2A decision, but we’ll see what happens and bring it to you next month.

Nationwide Injunction Issued Against Pistol Brace Rule

Federal Judge Matthew J. Kacsmaryk issued a nationwide preliminary injunction against the ATF’s embattled Pistol Brace Rule. That means that the ATF cannot enforce the rule while the injunction holds. It DOES NOT mean the pistol brace rule is dead. A judge issues a preliminary injunction when the plaintiff appears likely to succeed on their case’s merits, which Judge Kacsmaryk noted.

So, the ATF cannot currently enforce the rule, but Kacsmaryk will now hear the entire case, which, technically, could still go either way. Should he once again rule against the ATF, expect an appeal to the 5Th US Circuit Court of Appeals. That could be good news for 2A advocates since the 5th Circuit has not been friendly to the ATF recently.

This is one to watch, especially since Kacsmaryk cited the Mock v. Garland case, another Pistol Brace challenge, in which the 5th Circuit has already ruled against the ATF. Keep in mind, however, that these challenges do not question the rule’s constitutionality. They contend that the rule’s implementation violates the Federal Administrative Procedure ACT (APA). That means that, even if it goes to the Supreme Court, and we win, the ATF can go right back and draft another Pistol Brace Rule. Only this time, they would make it APA-compliant. The whole process would start all over. We’ll keep you updated.

Other 2A Notables

Lead Ammo Banned on New Hunting Lands

The US Fish and Wildlife Service (USFWS) has banned traditional lead hunting ammunition on eight recently opened National Wildlife Refuges. Despite evidence to the contrary, the USFWS bowed to environmental and anti-hunting groups’ pressure to require non-lead bullets. This rule extends to lead fishing tackle as well. These are the same groups who pressured the Obama Administration to ban all lead ammo on federal lands, which they quietly did on their way out. The next USFWS Director reversed the decision. That fight is ongoing.

Lead hunting ammunition
Traditional lead hunting ammunition has been banned on newly opened federal hunting land. (Author’s Photo)

American Gun Ownership Reaches Record Level

A recent NBC News poll found that 52 percent of Americans now say that they, or someone in their household, own a firearm. NBC News has conducted this survey since 1999. The number has risen from 42 percent in 2013, and 46 percent in 2019. Ten percentage points in 10 years is very significant, especially considering common gun control talking points. Interestingly, the number of self-identifying Democrats who own guns has grown by 11 points in that same time frame.

I question those numbers because I know LOTS of people who would never answer that question because, ultimately, it’s no one’s business. So, I think the gun ownership number may be low. Just my opinion. I love it.

Gun controllers have been telling us for years that American gun ownership is declining, with more guns concentrated in fewer hands. They also claim that most Americans favor stricter gun laws. These numbers put the lie to the first claim and cast serious doubt on the second. One thing is certain, more Americans are taking responsibility for their own safety by exercising their 2A rights. That’s a good thing.

Activist Courts Slow Rolling 2A Cases

We know the Bruen Decision is chopping down gun control across the country, but some courts are delaying Bruen-influenced cases. The motive appears to be their hope that the current 2A-friendly Supreme Court lineup will change before the cases go that high. With strong 2A Justices Clarence Thomas and Samuel Alito in their 70s, the tactic could, theoretically, work, especially if Joe Biden wins another term as president.

Nowhere is this more prevalent than in the 9th US Circuit Court of Appeals, which is blatantly delaying the decision against the California “assault weapons” ban. The law has been ruled unconstitutional twice, with the Supreme Court itself instructing the 9th Circuit to reconsider its earlier ruling by applying Bruen’s methodology. But the 9th Circuit’s anti-gun majority has obfuscated the case at every turn. It’s so bad that several of its own judges have publicly criticized their colleagues over it.

One hopes the Supreme Court will eventually step in since they oversee the circuit courts. Again, we’ll keep you updated.

Until Next Time

So, that’s it for November of 2023. There are certainly other 2A happenings, but these seem the most prominent to us right now. We’ll be back in a month with more. Hopefully, we’ll have some good news about these stories as they are clarified.

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