Update 11/3/2021 - NYSRPA v. Bruen SCOTUS
New York's Restrictive Handgun Law Positioned to be Struck Down by SCOTUS
Oral arguments were completed November 3 in New York State Rifle and Pistol Association v. Bruen, in what promises to be one of the Supreme Court's seminal rulings regarding the Second Amendment.
In nearly two hours of debate, most Justices seemed to be skeptical of New York's restrictive handgun law, which is good news for pro-gun advocates. However, there were occasional small hints that the Court could potentially hand down a narrowly tailored opinion regarding New York's law specifically, while leaving the issue of carrying handguns in public largely an open question for a future Court to decide.
How We Got Here
The State of New York currently requires anyone who wants to carry a handgun concealed in public to demonstrate “proper cause” to be granted a concealed carry permit. Being stalked, harassed, or receiving threats of violence, for example, could constitute “proper cause” under the present laws, but a general desire to carry a gun for self-defense is not. In addition to New York, the states New Jersey, Massachusetts, California, Maryland, and Hawaii have very similar laws, too.
When two New York men applied for a concealed handgun permit, they were both granted only a restricted permit to carry for target shooting and hunting, and one of them received an exemption to carry for work purposes as well. Teaming up with the New York State Rifle and Pistol Association, they sued the State of New York in federal court, challenging the “proper cause” restriction. New York State filed for dismissal which the district court granted, and that dismissal was subsequently upheld by the federal court of appeals.
The challengers then applied for review by the U.S. Supreme Court which, at Justice Brett Kavanaugh's urging, was granted earlier this year.
Supreme Court arguments are typically relatively brief. They are unlike the trials most people are familiar with, and often seem relatively informal in comparison. The petitioners and respondents stand before the Court and give their arguments, and the nine justices are free to interrupt and question them. All of the legal arguments and research is previously submitted to the Court and the justices are briefed ahead of time, so the hearing gives the justices the opportunity to converse with the interested parties and have their questions answered.
Paul Clement, the attorney for the petitioners, opened with the history of the Second Amendment, showing it has protected the right of individuals to keep and bear arms since its adoption and merely enshrined the natural right of self-defense inherent to all humans. Clement pointed out that this right does not require the permission of agents of the government, which is the entire purpose behind protecting it in the Constitution in the first place. Further, he highlighted the fact that the vast majority of American states allow citizens to exercise this fundamental right, thereby creating inconsistency and abuse in the free exercise of citizens' rights.
Justice Elena Kagan questioned Clement's interpretation of the situation in New York, asserting that the Court needed the statistics of how many permit applications were granted and denied, and for what reason, before the Court could arrive at a fair opinion. The other liberal justices agreed, suggesting the case needed more proceedings in a lower court to develop these facts.
Justice John Roberts inquired about the consequences of ruling in the petitioner's favor, like whether or not that would allow guns in places like courtrooms. Clement responded that such decisions would have to be made on a case-by-case basis; however, Justice Brett Kavanaugh reminded the Court that the question at hand was the constitutionality of New York's permitting process, and that it was not the Court's problem to solve the issue of where guns were specifically carried.
Clement pointed out to the Court that New York already has “sensitive places” restrictions but that they were not being challenged, merely the constitutionality of New York's permitting system. In a hopeful moment, Kavanaugh closed with the petitioners by suggesting that the constitutionality of New York's policy can be determined by the Second Amendment itself, without needing to resort to delving into what gun control schemes have been considered lawful in the past.
At that point, New York Solicitor General Barbara Underwood stood before the Court and began recounting the long history of gun control, going back centuries through English and American law, proposing to the Court that decisions regarding guns, such as permitting laws, have long been the purview of the states, arguing that system has worked well.3 Deputy Solicitor General of the United States Brian Fletcher spoke on behalf of the Biden Administration, agreeing with Underwood. He went on to attempt to justify New York's laws by citing other examples in other states through our history that are similar to New York's current permit laws.
Justice Roberts took Underwood to task over the uneven application of New York's permitting laws, which is used disproportionately to deny city dwellers their rights to carry a handgun for self-defense, while allowing it more in rural areas. Underwood began to use the public safety argument so favored by the anti-gunners, however Roberts interrupted her and humorously asked, “how many muggings take place in a forest?”
Justice Samuel Alito and the other conservative justices then questioned Underwood on the wide discretion local officials have in deciding what a “proper cause” is in granting or rejecting permit applications. Underwood acknowledged the discretion but insisted that it was guided by law. Alito was dubious however, and effectively said that there was no way for a citizen to be sure the decision to reject their permit application was fairly and justly made.
After just short of two hours, the oral arguments concluded.
The Court's opinion is expected before next summer, so for now, we're all left waiting. There is much to be hopeful for however. There is a six-to-three conservative majority on the Court right now, and it was a conscious, deliberate decision on their part to hear a new Second Amendment case—something the Supreme Court has historically avoided. The chief proponent of this was Brett Kavanaugh, who seems to be against New York's permitting system and on the side of the petitioners.
In general, the conservative majority seemed supportive of the petitioners as well. In comparison, the arguments in favor of the permit system made by the State of New York and the Biden Administration seemed weak, relying heavily on issues easily seen as irrelevant. The three-person liberal minority on the Court seemed mostly interested in dismissing the case back to a lower court just so they didn't have to deal with it.
Assuming the Court sides with the petitioners and strikes down the New York carry permit system, it will be interesting to see just how narrowly tailored the Court's opinion will be. The open question at the moment is how the ruling will affect the other states with similar laws. Regardless of the outcome though, this is an historic case that bears watching.
Update 10/6/2021 - Anti-Gun Senators Propose Bill to Destroy Gun Websites
Anti-gun Senators Richard Blumenthal (D-CT) and Dianne Feinstein (D-CA) recently introduced Senate Bill 2725, which they have ridiculously labeled the "Accountability for Online Firearms Marketplaces Act." S.2725 seeks to remove Section 230 protections from websites that conduct or facilitate firearms or firearms accessory transactions, thereby making the business directly liable for any crimes committed with any firearm or firearm related item purchased using their site.
Section 230 of the United States Code shields Internet service providers from liability for content created or conducted by a third party, same as how a phone service provider isn't held liable when criminals make a phone call. This law was enacted in the early days of the Internet as a way to ensure that the then-fledgling technology could have a chance to get established and thrive, rather than be sued into oblivion before it could get started.
S.2725 alleges to be in response to a 2019 case in Wisconsin, Daniel v. Armslist, during which a woman whose mother was murdered in a shooting sued Armslist. She claimed the site was responsible since the shooter used it to locate a seller from which to purchase a gun privately, which he in turn used during the commission of the crime. The Wisconsin Supreme Court ruled that Armslist was not liable on Section 230 grounds because they merely provided a neutral tool to search for private sellers. The U.S. Supreme Court denied review, thereby upholding the Wisconsin court's opinion.
Of course, S.2725 is yet another transparent attempt at subverting the Second Amendment. The anti-gunners have wanted to open up gun businesses to lawsuits for many years, in order to allow frivolous, expensive lawsuits to bring the gun industry down and accomplish what they have been unable to do with legislation for decades.
This bill would open the flood gates not merely against gun businesses that use the Internet, but against any Internet business that facilitates them, such as a domain registrar, website hosting service, or even e-commerce services. S.2725 would effectively roll the calendar back to 1990 and reduce the gun industry to brick-and-mortar shops, bankrupting countless gun businesses in the process through lawfare.
We urge you to contact your senators today and tell them to reject Senate Bill 2725. It'll only take a few moments of your time, and as the recent success of our combined efforts against the Biden Administration's nomination of David Chipman to the ATF director seat shows, we have the power to hold the line and push back against the anti-gun agenda when we make our voices heard.
Update 9/10/2021 - Biden Withdraws David Chipman's Nomination for ATF Director
Following several months of public outcry in opposition to President Biden's nomination of David Chipman as ATF director, the White House has finally announced that they are withdrawing his nomination. David Chipman will not be the next ATF director.
After a contentious Senate confirmation hearing, Chipman was referred out of the Judiciary Committee on an 11-11 split vote back on June 24, marking the first real portent of the Biden nominee's inevitable failure. Majority Leader Chuck Schumer (D-NY) delayed bringing Chipman's nomination to the floor, struggling to whip the votes needed to confirm Chipman in a Senate divided 50-50 along deep partisan lines.
All eyes turned to the Senate's two centrist Republicans, two conservative Democrats, and its single left-leaning Independent, who together would determine Chipman's success or demise. Republican Susan Collins from Maine was the first to break, signaling her lack of support for Chipman, and Republican Pat Toomey of Pennsylvania signaled the same a few days later. That left the two Democrats and the Independent, and the possibility that Kamala Harris would have to make an historic vice-presidential tie breaker.
Then just last week, Independent Angus King of Maine indicated that he wouldn't support Chipman either. With that, Democrats could do no better than 49 votes, fortunately sealing the fate of David Chipman's nomination.
The pushback on Chipman was tremendous, and justifiably so given his gross anti-gun activist attitudes. His defeat marks a tremendous effort by gun owners and the gun industry. Rarely do we see the banding together of forces by pro-gun, pro-freedom Americans and businesses as we have seen in response to Chipman and the ATF's pending anti-gun rules changes.
That said, this is only a temporary victory and gun owners need to stay vigilant. Biden will eventually nominate another dangerous candidate, and we still have yet to see the outcome of the ATF's recently proposed rules changes, which would significantly impact our freedoms.
This fight isn't over. Stay tuned to Brownells' 2A Action Center for future updates.
Update 6/29/2021 - Chipman Will Advance to Full Senate Vote
Last week, the U.S. Senate Judiciary Committee split down party lines (11 Democrats to 11 Republicans) on whether or not David Chipman will receive a vote on the Senate floor. The split essentially means Senate Democrats will have to jump through some extra procedural hoops, but ultimately, the full Senate will weigh in.
We are hearing the likely full Senate vote will happen in mid-July 2021. Now is the time to keep the pressure on your Senators, particularly the following members of the U.S. Senate:
- Sen. Joe Manchin (D – WV)
- Sen. Susan Collins (R – Maine)
- Sen. Lisa Murkowski (R – Alaska)
- Sen. Jon Tester (D – Mont.)
- Sen. Krysten Sinema (D – AZ)
- Sen. Mark Kelly (D – AZ) *Kelly should recuse himself from the vote as Chipman is still employed by Kelly's wife, Gabby Giffords, who runs a pro-gun control organization.
Fight the Nomination of David Chipman for ATF Director
Back in April, President Biden nominated David Chipman for the position of Director of the ATF. Prior to his retirement in 2012, Chipman was a 25-year veteran of the Bureau. His second post for the ATF was as a special agent at the Waco, Texas, field office from 1993 to 1998, during the Waco siege.
In the years since his retirement, Chipman has been employed by multiple major gun control groups and has publicly advocated for numerous anti-gun policies such as banning so-called "assault rifles," regulating semi-automatic firearms as machine guns, and instituting burdensome gun registration, licensing, and taxing schemes. More than once he has mocked gun owners with condescending and derogatory comments.
At his recent Senate Judiciary Committee confirmation hearing, Chipman demonstrated disconcerting level of ignorance regarding firearms. In one notable moment, a senator asked Chipman to define a term he frequently uses - "assault weapon," which he struggled with and was ultimately unable to do. As a result of this and other disqualifying exchanges, several senators questioned Chipman's qualifications to lead the ATF.
Fortunately, the Senate has yet to confirm David Chipman to the post, so there is still time for Americans to contact their senators and urge them to reject Chipman's nomination. Please visit and take a few moments to let your senators know that David Chipman is not the man for the job. Contact your senator here. Remember to keep your comments respectful and direct to increase their impact.
Understand New Proposed Rules For 80% and Other Frames
At the direction of President Biden, the ATF has recently proposed an alarming series of changes to federal firearms regulations. These proposals include adding or expanding the definitions of what constitutes a firearm frame or receiver, weapon, suppressor, or a privately made firearm. The proposed changes also include granting the government authority to declare firearms parts as actual firearms, as well as create new regulatory burdens regarding serial numbers and other markings.
Should these proposals become official regulations, every American's constitutionally protected right to make, modify, and own firearms will be negatively impacted. The end result will be an infringement on the free and lawful exercise of the Second Amendment, the destruction of countless small businesses and livelihoods, and the added costs of new regulatory burdens being passed off to the consumer in the form of increased prices.
The comment period for these harmful proposals is now open on the ATF's website. Please visit to leave feedback for federal reviewers. Remember to keep your comments respectful and direct to increase their impact on the decision makers' final determination.
Understand New Proposed Rules for Pistol Braces
Continuing to pursue President Biden's anti-gun agenda, the ATF has just released a new set of firearms rule change proposals, this time regarding pistol stabilizing braces. These latest proposed regulations are intended to determine whether or not a pistol falls under the definition of a short barreled rifle (SBR) under the National Firearms Act (NFA). The government's clear intent is to eliminate the unregistered ownership of firearms that use pistol braces.
To start, the proposal would redefine the meaning of "rifle" to potentially include firearms equipped with a stabilizing brace designed to be fired from the shoulder. It would also implement an arbitrary points system that the ATF would use to determine if a pistol falls under the purview of the NFA. Any pistol with four or more points would be determined to be an SBR and would thus fall under NFA restrictions.
Points would be awarded on factors such as whether a firearm equipped with a stabilizing brace could possibly be fired from the shoulder, or may be, is likely to be, or is definitely intended to be fired from the shoulder, each counting as 1, 2, 3, or 4 points respectively. Certain features are given points as well. For example, flip-up sights are one point, and red dot sights, full length buffer tubes, and hand stops are all worth two points.
Other factors automatically make a firearm an SBR regardless of points. Any pistol with a second grip or that weighs over 120 ounces unloaded would be an SBR. There would also be a 26 inch maximum length as measured from the rear of the buffer tube to the end of the muzzle, which would effectively limit AR-based pistols to 7 inch barrels.
There are a few other factors in this new draconian proposal, however all of them are an assault upon American's constitutionally protected rights, representing a significant infringement on the free and lawful exercise of the Second Amendment, not to mention the economic impact to the firearms industry as manufacturers will be forced to engage in legal struggles to get products approved, make large expenditures to tool up for producing new products, or go out of business altogether and put their employees out of jobs.
All ATF proposals must be open for public comment and those comments must be considered before any final determination is made. The comment period will be open very soon, right after the proposal is published in the federal register, which means now is the time to act. Once open, please leave feedback for federal reviewers. You can find the link here. Remember to keep your comments respectful and direct to increase their impact on the decision makers' final determination.