FPC Files Lawsuit Challenging New York "Assault Weapons' Ban as Unconstitutional

Nice.

But I hope their actual argument doesn't hinge on "assault weapons aren't really any more dangerous or different than other guns..."

Even though mostly true...that's a losing argument. It's what lost us the safe act case with Skretny and the 2nd circuit.

"Oh it's no different than any other gun...well then why can't NY ban them if you can just use another gun that's the same?"

No. ARs and semi auto rifles with detachable mags are a bit more "lethal" and are therefore better for self defense.

Probably based on Bruen: “just as the first amendment protects modern forms of communications, and the fourth amendment applies to modern forms of search, the second amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Thus, even though the second amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”

Yet I would put money down in Vegas that this concept is way beyond the ability of the circuit courts to comprehend (along with many in the populace who still claim the 2nd Amendment only applies to flintlocks and similar arms of the late 1700's - oddly they will not let you have a cannon these days )

I have hope and want to believe, but given what happened with the Maryland Case, the Democrat appointed Circus Court Judges, and the snow-ball's chance in Hell of SCOTUS hearing another 2A case, I'd say it's going nowhere... lets pray I'm wrong.  

Did something happen in Maryland post Bruen?

Justices Send Assault Weapon, Magazine Bans Back to Lower Courts

June 30, 2022, 10:55 AM

Lower courts to reconsider in light of ruling in New York gun case
Courts should look only the constitutional text, history when considering gun laws
Several challenges to state gun laws were sent back to lower courts in light of the US Supreme Court’s landmark Second Amendment ruling limiting restrictions on firearm possession outside the home.

Known as a “GVR"—for grant, vacate, and remand—the justices often allow lower courts another shot at cases after a high court decision that could potentially change the analysis or outcome of a case.

The cases sent back Thursday include challenges to bans in New Jersey and California on high-capacity magazines that hold ten rounds or more, Maryland’s assault weapons ban, and Hawaii’s restrictions on open-carry.

In each case, the lower courts had upheld the restrictions.

The justices didn’t explain why they sent the cases back, but presumably it was to apply the new test laid out by Justice Clarence Thomas’s majority opinion in New York State & Pistol Association v. Bruen. The ruling was the Supreme Court’s first major Second Amendment case in over a decade and limited the restrictions that states can place on where gun owners can take their firearms.

Courts should look only to the constitutional text and that nation’s history of gun restrictions in determining whether a state has run afoul of the Second Amendment, Thomas wrote, adding that they should not defer to legislative determinations about whether gun restrictions are necessary for public health and safety.

“While that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here,” Thomas said.

The new test will make it harder for courts to uphold the restrictions.

The cases are Association of New Jersey Rifle and Pistol Clubs, Inc. v. Bruck, U.S., No. 20-1507, Young v. Hawaii, U.S., No. 20-1639, Bianchi v. Frosh, U.S., No. 21-902, and Duncan v. Bonta, U.S., No. 21-1194.

Yeah this makes it sound like something bad happened with the MD case that was GVR'd.

Watched "Armed Scholar" on YouTube last night and it looks like California has come up with a plan to drag out their AWB case ad-infinitum, hoping to keep it in place. SCOTUS GVR'd Saint Benitez's case back to the 9th Circuit. There is a petition now to reverse the stay that Benitez had to issue in light of the 9th Circuit having planned to overturn. California is pushing to have the stay remain in place AND the case remanded back to Benitez. They further say it should then be dismissed so that the case can start over again from square one. The fact that Benitez used both text and history as well as the two-step process (in order to placate the 9th) has California crying foul. They are claiming they need the case to reset so they can instead focus solely on text and history rather than both text and history, and the two-step process as they did before. They claim they have ample evidence with the 30+ history of their AWB to meet the text and history requirement so a restart is required.

I suspect the other states with AWB's will copy this approach too. And as noted in the quote, I doubt SCOTUS will take on another 2A case any time soon. It will drag on for years with the states hoping for a change in the SCOTUS ideology allowing for a complete reversal of Bruen and probably Heller too.

Lol...a 30 or even 100 year "history" of banning assault weapons or requiring a license is NOT how text history and tradition works.

It has to be something they did during or shortly after the drafting of the 2nd amendment.

Correct but we are dealing with the 9th Circus here. I already have a good idea how it will all play out:

9th Circuit will remand the case back to Benitez and require the case to start over because they agree with California's argument. So Benitez basically copies his prior work leaving out the two-step BS. California appeals, requests and is granted a stay. 9th Circuit maybe rules in favor of the plaintiffs like before. California appeals asking for an en banc hearing which is of course granted. The stay remains in place all this time. The en banc panel, finds something in the history and tradition arguments made by California in order to overturn the three judge ruling. At this point, the only recourse is to try and get SCOTUS to hear it. Total time so far: 4 or so years. By that time, who knows who the justices will be or if there will even be nine. Maybe 13 in that time. Time is on California's side.

GVR is a good thing typically. It essentially means you got it wrong. Try again. Remember, SCOTUS VACATED the initial circuit ruling.

Can they drag it out that long?  After a Supreme Court GVR they are supposed to follow the new legal standard without undue delays, or SCOTUS can intervene directly.

Honestly I cannot see why it cannot drag on this long. A legal expert noted that the Supreme Court did not overturn the 9th Circuit ruling. They vacated it. As such, it can go back to square one if the court agrees with California's argument. If that happens, it would appear that it would be as if the case never happened in the first place. Then California loses (again). Appeals and gets a stay. etc. etc.

Also as another thread here reports, the House is pushing forward with H.R. 1808, a Federal AWB. So no one in government is really paying attention to the Bruen ruling. I truly think they are playing the long game, introducing new laws left and right, to eventually get Bruen (and Heller) overturned by a future court (we already have a roadmap on how that is done). Remember, the two oldest Justices are now Thomas and Alito. And they are the strong pro-2A justices. Replace them with two anti's and it is game over.

But if CA loses on the 3 judge panel, that same test of "text, history and tradition" should win again with a 9 judge panel?  By adding 6 more judges I cannot see how the test changes since it has to be applied again and again.  They will still have to find a "tradition" that goes back to the founding which prohibited the "citizens access to common weapons of the time".  

They may drag their feet but they will obliged to apply the Bruen test.  Long game, yes I can see how a new Supreme Court can reverse course so generally speaking the battle will go on.  

I am hoping NY wins, and then the same happens with CT since we are in the same federal circuit.  Fingers crossed!

I think we all need to start ignoring these laws...laws that we've always known were unconstitutional...but now know they are undoubtedly 100% unconstitutional.

There is zero wiggle room with the Thomas ruling. Basically no gun laws can stand with his test.

So just ignore them until they are eventually overturned. Only a matter of time.

This makes me wonder if they will just start "tolerating" semi auto rifles and standard mags without prosecuting people, but leave the unconstitutional laws in place for when they can be enforced some day in the future.  If they know they will lose at the court they might as well turn a blind eye by not enforcing current unconstitutional laws.

Yup...the only laws we really need to fight and worry about are the ones preventing us from purchasing certain guns and mags and parts...and licensing that can prevent ownership.

Other than that, who cares? Ignore it all.

What happened?

Nothing yet.

Not likely. They'll be entirely happy to arrest people and hang a felon label on them, even if the law eventually gets overturned.

If it happens you'll never hear about it and more importantly nevery be able to rely on it.