In back to back progress making court wins rolling into the Veterans Day weekend, both the ATFs pistol brace rule and their receiver/frame rule were given harsh judgements by US Judges.
First, US District Court Judge Mathew Kacsmaryk enjoined the whole of the nation from enforcement of the pistol stabilizing brace rule.
“Public safety concerns must be addressed in ways that are lawful. This rule is not,” Kacsmaryk stated.
Previous decisions only covered the specifically named plaintiffs, FPC members and Maxim Defense customers specifically. The rule has not been thrown out, it has been barred from enforcement pending further decisions.
Then the Fifth Curcuit ruled that the ATF lacked the authority to adopt a final rule as sweeping as the one they implemented in April of 2022.
Circuit Judge Kurt D. Engelhardt authored the majority opinion for the three-judge panel. Engelhardt found that the final rule constitutes unlawful agency action because it “flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy.” Thus, Engelhardt ruled that the final rule is “limitless” and the Gun Control Act (GCA) does not allow the final rule.
The ATF essentially made up additional authority and definitions to try and get the jobs the administration was placing upon it done instead of firmly relying on Congress to amend the law as is its duty and then the ATF enforcing clearly enumerated law.
While none of these settles either case in finality, they are more procedural victories and continue the momentum established by Bruen in clearing out bad firearms laws from the legal quagmire.
Still to come is a US Supreme Court decision on the grounds of misdemeanors of domestic violence and firearms rights. As law and policy stands now, domestic violence misdemeanors remove firearms rights permanently from a person. But this is not a penalty for any other misdemeanor level offense. Certainly domestic violence is a serious threat, as is any form of violence, but if the offense given and convicted of is not above the misdemeanor level does it warrant the permanent removal of the right to bear arms?
A “misdemeanor crime of domestic violence” is an offense that:
- Is a misdemeanor under federal, state, or tribal law;
- Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
- Was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
The term “dating relationship” means a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.
Whether a relationship constitutes a “dating relationship” shall be determined based on consideration of:
- the length of the relationship;
- the nature of the relationship; and
- the frequency and type of interaction between the individuals involved in the relationship.
A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship.”
However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
- The person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
- In the case of a prosecution for which a person was entitled to a jury case was tried, either –
- The case was tried by a jury, or
- The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.
In the case of a person who has been convicted of a misdemeanor crime of domestic violence against an individual in a dating relationship; a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had firearms rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms. If the person has no more than one such conviction, and is not otherwise prohibited, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm if 5 years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person. NICS shall be updated to reflect the status of the person
Restoration after 5 years, as described above, is not available for a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.
[18 U.S.C. 921(a)(33); 18 U.S.C. 921(a)(37); 27 CFR 478.11]
Michigan, as an example, has two domestic violence levels and both with a misdemeanor level to them. Domestic Assault and Aggravated Domestic Assault are principally separated by the
Does a misdemeanor domestic assault, first offense, that does not have to involve battery or injury and could be punished by a $500 fine alone or 93 days in jail and the $500 fine, does that offense also require the permanent injunction of someone’s right to acquire and defend themselves with a lawfully possessed firearm?
Does the direct penalty for the misdemeanor offense also necessitate and society benefit from the prohibition of arms from those convicted?
That is the question, and the answer is very likely that the law is mostly about politicians being able to pat themselves on the back and “keep guns out of the wrong hands” than it is demonstrably beneficial to public safety.
Read the full article here