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The Reload Staff Newsletter: In Post-Bruen First, Federal Appeals Court Upholds Gun Law

Charlie T Waite

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Hey Michael,


The legal battle over guns heated back up this week.

We saw the first federal appeals court issue a significant post-Bruen gun ruling. The Third Circuit upheld the federal lifetime ban on non-violent felons owning guns. It relied in part on historical bigoted gun bans against Catholics, Native Americans, and Black Americans alike.

I explain why that spurious reasoning is unlikely to survive scrutiny at the Supreme Court, but also why the Court will probably skip taking up the case for a completely different reason.

The Second Circuit also made a significant, though not final, decision in a key gun-rights case. They issued a stay on a lower court's decision to block most of the controversial provisions of New York's latest gun-carry law. The state will be able to keep enforcing the law as its appeal is processed.

We also saw election results continue to roll in this week. Democrats kept control of the Senate, and Republicans gained control of the House. Several statehouses saw the balance of power flipped from one part to the other as well.

Contributing Writer Jake Fogleman looks at what practical effect those results will have on gun policy around the country.

Oregon's gun-control initiative also just barely made it over the line and into law. But some of the nation's leading gun-rights groups told us they plan to immediately file a challenge to try and block it before it ever goes into effect.

Gun-rights advocates weren't the only ones taking immediate post-election legal action on guns. New York Attorney General Letitia James (D.) issued threats against online ammo dealers in a first-of-its-kind attempt to enforce a dormant provision in the state's 2013 SAFE Act.

Plus, Cam Edwards of Bearing Arms joins the podcast to discuss how gun politics will be affected by the election results.

Appeals Court Cites Bigoted Historical Laws to Uphold Ban on Non-Violent Felons Owning Guns
By Jake Fogleman

The federal government can continue to block non-violent felons from possessing firearms.

That’s what a three-judge panel for the Third Circuit Court of Appeals ruled on Wednesday. It found the federal law barring those convicted of non-violent felonies from possessing guns is consistent with the country’s history and tradition of gun regulation. The court specifically relies on historical laws that disarmed disfavored minority groups to reach that conclusion, despite referring to that history as “repugnant” and “unconstitutional.”

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms,” the court’s per curiam opinion reads. “Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence.”

Click here to read more.

Analysis: The Supreme Court Probably Won't Save Non-Violent Felons' Gun Rights [Member Exclusive]
By Stephen Gutowski

A federal appeals court has upheld the ban on non-violent felons owning guns using some questionable reasoning, but don’t expect the Supreme Court to intervene.

The Third Circuit found the ban is consistent with the nation’s historical tradition of gun regulation in the United States, as required by the Supreme Court’s standard in New York State Pistol and Rifle Association v. Bruen. The Third Circuit took something of a scattershot approach to justifying its decision, relying on evidence with varying degrees of

In 1995, Bryan Range was convicted of defrauding the government out of $2,458 in food stamps. He never served a day in prison. However, his non-violent crime was punishable by up to five years in jail. So, under the Gun Control Act of 1968, he has been barred from buying or even possessing guns for life.

The Third Circuit said this permanent prohibition has several historical analogues. It started by citing 17th and 18th-century English bans on gun ownership by disfavored religious groups, especially Catholics. While those bans did survive to the early American republic, the Court argued they demonstrated that the tradition of disarming people based on their inclusion in a group perceived as dangerous, even if they haven’t committed any violent crimes, is deeply rooted.

It went on to cite a handful of bans on disfavored racial groups owning guns during the founding era as evidence this idea was popular in America as well.

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

Second Circuit Stays New York Gun-Carry Case, Allows Law to Remain in Effect
By Stephen Gutowski

New York will be able to continue enforcing its latest concealed carry restrictions because of a new order from a federal appeals court.

The Second Circuit Court of Appeals accepted New York’s plea to add a stay to a federal judge’s ruling blocking much of its gun-carry law. The stay will remain in effect until a panel of Second Circuit judges hears the case. Residents will be subject to the state’s permit-application process and numerous gun-free zones while that process unfolds.

New Yorkers will have to once again contend, at least temporarily, with the novel restrictions the state implemented in response to the Supreme Court striking down its previous gun-carry law as unconstitutional. The new law, which New York officials sold as a direct rebuke of that ruling, appears to be on the same path to defeat, with two different federal judges striking down much of it as a violation of the Second Amendment. But New York gun-carriers, and the gun-rights groups who back them, will have to clear a significant new hurdle to defeat the law.

Click here to continue reading.

Oregon Gun-Control Initiative Faces Immediate Legal Peril After Slim Victory
By Stephen Gutowski

Gun-rights advocates are already drafting a lawsuit against Oregon’s new gun-control initiative.

The Second Amendment Foundation (SAF) and Firearms Policy Coalition (FPC) said they plan to challenge Measure 114 after the Associated Press called the race in favor of supporters on Tuesday. The initiative to institute a permit-to-purchase system for guns and outlaw magazines that hold more than ten rounds won by just 1.6 percent, but even that thin margin puts it outside what’s needed for an automatic recount. The gun-rights groups said the law should not be allowed to go into effect anyway because they believe it violates the Second Amendment.

“We’re already working with our attorneys,” Alan Gottlieb, who started SAF, told The Reload. “We are on our second draft of the complaint, and we will definitely be filing.”

Click here to read the rest of the story.

New York Attorney General Goes After Online Ammo Dealers
By Jake Fogleman

Fresh off of reelection, New York’s top law-enforcement official is going after the gun industry in a new way.

Attorney General Letitia James (D.) announced on Monday accused 39 ammunition sellers of violating New York’s SAFE Act by conducting online sales and shipping directly to residents’ homes. She sent the dealers cease and desist orders promising to use the “full force of my office” in a first-of-its-kind threat to enforce the previously-unenforced section of the law

“Online sales of ammunition are dangerous and could end up in the wrong hands,” James said in a press release. “We are taking action to protect communities and enforce our responsible gun laws.”

The announcement is now the earliest indication that New York’s unexpectedly-close elections this past week will not halt state officials’ attempts to target the firearms industry.

Click here to read the full piece.

Podcast: Bearing Arms’ Cam Edwards on the Election’s Impact on Gun Politics
By Stephen Gutowski

The election is over, and it’s time to read the tea leaves.

That’s why I’m bringing Cam Edward from Bearing Arms back on the show to interpret the results. How did the races we were watching turn out? How much impact did guns have on them? How much impact will the election have on guns?

Plus, Contributing Writer Jake Fogleman and I discuss a federal judge’s decision blocking New York’s gun-carry restrictions.

You can listen to the show on your favorite podcasting app or by clicking here. The entire episode is also available on our YouTube channel. Members get access to the show on Sunday, and it goes live for everyone else on Monday.

Analysis: After the Midterms, What Comes Next for Gun Policy? [Member Exclusive]
By Jake Fogleman

It’s now been nearly a week since election day. While not all of the races have been officially called, the dust has begun to settle, and we have a better idea of how the new balance of power will influence gun policy in the next couple of years.

At the national level, the Democrats will retain control of the Senate. The exact margin will not be clear until the results of next month’s runoff election in Georgia are in, but it appears it will either be a 50-50 or 51-49 split favoring Democrats when all is said and done. In the House, Republicans still appear to be favored to take control of the chamber, but the extent of their majority remains unclear. It’s clear that whatever advantage the party ultimately holds in the House, it will be fairly slim.

Nevertheless, those final projections give us a good idea of what to expect when it comes to gun policy in the 118th Congress.

If you’re a Reload Member, click here to read the whole thing. If not, please consider joining today to get access.

Outside The Reload

Federal judge in Texas rules that disarming those under protective orders violates their Second Amendment rights | The Texas Tribune | By William Melhado

The people at the center of Santa Clara County’s concealed gun scandal | San Jose Spotlight | By Brian Howey

Sweeping gun carry bill clears Assembly committee for fourth time | New Jersey Monitor | By Nikita Biryukov

U.S. Supreme Court again spurns challenge to gun 'bump stock' ban | Reuters | By Andrew Chung

Gun sales surge in Oregon after passage of Measure 114 | OPB | By Lillian Mongeau Hughes 

That’s it for this week in guns.

If you want to hear expert analysis of these stories and more, make sure you grab a Reload membership to get our exclusive analysis newsletter every Sunday!

I’ll see you all next week.

Stephen Gutowski
The Reload

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