The Reload Staff Newsletter: Are Individual Gun Rights a Modern Invention?

[Charlie T Waite]

This week we have something a bit different. With the digitizing of historical texts over the past couple of decades, access to primary sources is easier than ever. That inspired Konstadinos Moros to review the opinions of second-generation American scholars in order to answer whether, as some gun-control advocates still claim, the idea the Second Amendment guarantee an individual right is a recent misdirection.

The two of us looked through the writings of many 19th-century lawyers, politicians, and authors and found a significant difference of opinion on the protections the amendment affords. But they were united on the question of whether it protects the rights of individuals.

Mexico was back in the news this week too. It filed another Hail Mary claim against U.S. gun businesses. This time they're accusing, with little evidence, Arizona gun dealers of trafficking guns into the country. Contributing Writer Jake Fogleman looks at the risks of the country doubling down after its previous suit was tossed just a few weeks ago.

We also have an update on how much money Everytown for Gun Safety has pledged to spend in the midterm elections this month. And a look at the messaging they're putting their money behind.

I also examine a federal judge's ruling that much of New York's latest gun law is unconstitutional. And we give an update on why it will continue to be enforced anyway.

Plus, Manhattan Institute’s Robert VerBruggen joins the podcast to talk about the FBI's troubling crime date.

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Analysis: Historical Texts Show Individual Right to Keep and Bear Arms Isn’t an NRA Invention
By Konstadinos Moros and Stephen Gutowski

For anyone who frequently discusses the Second Amendment, there is no avoiding the debate over whether it protects an individual or collective right. The prevailing view accepted by the Supreme Court in 2008 is that the amendment protects every individual’s right to keep and bear arms. But many detractors, especially gun-control advocates, still argue it only covers a collective or militia right.

When the individual right view started to gain ground (or, rather, regain ground) in the late 20th century, a common line of attack was that the pro-gun side was essentially making it all up. And it’s one that’s been repeated even at the highest levels of the legal profession.

“The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime,” Former Chief Justice Warren Burger said in a 1991 PBS interview.

Gun-control advocates still use this argument, with The Intercept asserting in a June 2022 article that “no law review article from 1888 (when they were first indexed) through 1959 ever concluded the Second Amendment guaranteed an individual right to a gun.”

There are three ways to test the claim that the NRA and other gun-rights advocates created the individual-right view in the last several decades: What did the founders say? What did older case law say? And what did prominent second-generation American legal scholars and elected officials say?

Click here to read more.

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Mexico Files New Suit Against American Gun Dealers
By Jake Fogleman

After failing on the first attempt, Mexico is again trying its luck against the American firearms industry in court.

The Mexican government filed a new lawsuit on Monday against U.S. gun companies it claims are responsible for firearms that criminal organizations traffic through the southern border. The latest suit, filed in an Arizona federal court, targets five Arizona gun dealers it claims “routinely and systematically” provide guns for criminal organizations in Mexico through straw purchases.

“The lawsuit is part of a multifaceted strategy by the Government of Mexico to stop the avalanche of weapons, particularly assault weapons, coming from the United States that empower criminal groups, cause bloodshed in Mexico and contribute to drug trafficking to the United States,” the Mexican government’s Department of Foreign Affairs said in a press release. “This court action in no way challenges the Constitutional right of U.S. citizens to bear arms, nor the right of stores to sell their products responsibly and lawfully. The lawsuit addresses a cause shared by both countries, whose citizens suffer from illicit firearms practices.”

Click here to continue reading.

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Analysis: Mexico's Risky Legal Strategy Against the U.S. Gun Industry [Member Exclusive]
By Jake Fogleman

Not content with seeing one hail-mary lawsuit tossed in court, the government of Mexico is back just weeks later with another case looking to pin liability for criminal gun trafficking on U.S. businesses.

The new suit, filed Monday, takes aim at five gun dealers in Arizona with storefronts near the border. The complaint alleges that the five dealers "systematically participate in trafficking military-style weapons and ammunition to drug cartels in Mexico by supplying gun traffickers."

"Defendants choose to sell guns using reckless and unlawful practices, despite the foreseeability – indeed, virtual certainty – that they are thereby helping cause deadly cartel violence across the border," it states. "Defendants engage in these reckless and unlawful actions because it makes them money. This lawsuit intends to hold them accountable, and make them stop."

These "reckless and unlawful practices," the suit alleges, consist of the named dealers selling multiple guns to the same person over a "short" period of time. The complaint does not suggest that the defendants sold guns to persons without a background check or any other omission indicating the dealer should have known a sale was illegal.

If you're already a member, click here to read more. If not, join today for exclusive access!

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Second Circuit Stays Order Blocking New York’s Latest Gun-Carry Law
By Jake Fogleman

An emergency restraining order blocking most of New York’s restrictive gun-carry law will not take effect. At least not yet.

Second Circuit Judge Eunice Lee, a Biden appointee, granted New York’s request for an interim stay of the temporary restraining order on Wednesday. The stay will keep New York’s Concealed Carry Improvement Act (CCIA) in effect until a three-judge panel for the Second Circuit decides whether to uphold or overturn the order.

The stay deals a setback to gun rights advocates in New York. After securing a victory in court against New York’s law earlier this month, licensed gun owners will be forced to continue abiding by a law that a federal judge has already found to be likely unconstitutional.

Click here to read the full piece.

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Everytown Pledges $7.2 Million in October Battleground State Ad Buys
By Jake Fogleman

The country’s largest gun-control organization has begun to ramp up its attack ad spending just weeks out from November’s midterm election.

Everytown for Gun Safety Victory Fund, the Super PAC for the Bloomberg-backed group, has announced $7.2 Million in digital advertising spending in key battleground states thus far in October. The ads have targeted GOP candidates on their support for gun rights in states like Arizona and Pennsylvania. In contrast, ads run in Michigan and Georgia highlight the abortion debate.

“How extreme is Tudor Dixon? She opposes a woman’s right to make her own health decisions,” the newest ad against the Michigan GOP gubernatorial candidate begins. “And wants to ban abortions, even describing a child raped by her uncle as a perfect example of someone who should be forced to give birth.”

Click here to read the rest.

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Podcast: Manhattan Institute’s Robert VerBruggen on the Murder Spike and Bad FBI Crime Data
By Stephen Gutowski

The FBI just released its full 2021 crime report. So, this week on the podcast, we’re talking about the spike in nationwide homicides.

That’s why Robert VerBruggen from National Review and the Manhattan Institute is joining us. He’s been writing about the ins and outs of crime data for years and has produced some of the most insightful commentary I’ve seen.

We also hear from Reload Member Allen, who is a new gun owner living in New York City. He explains why he decided to buy his first gun just over a year ago and what the onerous process for actually obtaining a shotgun has been like.

Plus, Contributing Writer Jake Fogleman and I discuss a federal ruling blocking enforcement of the most controversial portions of New York’s latest gun-carry law.

You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is also available on our YouTube channel. New episodes of the podcast go public on Monday. Reload Members get access on Sundays.

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Analysis: Why a Federal Judge Blocked New York’s Latest Gun Restrictions [Member Exclusive]
By Stephen Gutowski

Not only will Judge Glenn Suddaby’s temporary restraining order against New York’s latest gun restrictions impact millions of people who live in that state, but it will likely also influence a host of other gun litigation across the country.

Suddaby’s opinion is one of the most expansive attempts to apply the Supreme Court’s new Bruen standard, which requires any law that implicates a Second Amendment right to closely match a historical analogue in order to survive scrutiny. The judge performed his own investigation of gun statutes from the period of the founding through the end of the Civil War and adoption of the 14th Amendment in 1868. He found there was little or no historical support for a majority of the most controversial provisions of New York’s law.

Suddaby gutted the “good moral character” gun-carry permitting clause. He blocked the social media check requirement, family information disclosure, and in-person application process. He also forced New York to allow licensed gun carriers into Times Square, on public transit, at venues that serve alcohol, private businesses that don’t have a “no-gun” policy, and entertainment venues.

“Although historical analogues certainly exist prohibiting carrying firearms in specific places, no historical analogues have been provided prohibiting carrying firearms virtually everywhere, as the CCIA does,” Suddaby wrote.

But he upheld a number of provisions as well.

If you’re a Reload Member, click here to read the whole thing. If not, join today for exclusive access to this piece and hundreds more!

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Outside The Reload

Mayor Eric Adams signs legislation making Times Square a gun-free zone | CBS New York | By Marcia Kramer

Star witness affirms pay-to-play for gun permits at Santa Clara County sheriff corruption trial | The Mercury News | By Robert Salonga

Recoveries of 'ghost guns' rise in New York | Spectrum News NY | By Nick Reisman

Another Challenge to New York’s Gun Law: Sheriffs Who Won’t Enforce It | The New York Times | By Jesse McKinley and Cole Louison

NJ proposal would require insurance for carry permits | Bearing Arms | By Tom Knighton