Second Amendment Update and other Firearms-Related Cases
By Robert Phillips
1. Since the United States Supreme Court decided the landmark case decision of New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U. S. 1, establishing the criteria courts are to use when determining whether any statute that seeks to limit or prohibit the possession or use of a firearm complies with the Second Amendment’s right to bear arms, the cases challenging one prohibitory statute after another have been coming down hot and heavy. The latest such case is the U.S. Supreme Court’s decision of United States v. Rahimi (June 21, 2024) __ U.S. __ [2024 U.S. LEXIS 2714].
In Rahimi, the defendant/appellant, Zackey Rahimi, had a propensity for shooting his pistol off anytime life’s little issues weren’t going his way. This included one such incident when, after an argument with his girlfriend (and mother of his child) turned violent, he either shot at her as she escaped his assault on her person, or shot at a witness to the event. As a result of this incident, the girlfriend sought and obtained a restraining order from a Texas court preventing him from having any contact with her or their child. The resulting court order included a suspension of Rahimi’s gun license for two years. This, not surprisingly, had absolutely no effect on Rahimi and his need to accent his anger by shooting at others or simply into the air, recording some six such incidents over the following months. This resulted in him being indicted in federal court under 18 U. S. C. § 922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. (See Pen. Code §§ 18100 et seq. for California’s equivalent regulations.) Upon denial of his motion to dismiss, arguing that the regulation violated his right to bear arms under the Second Amendment, Rahimi appealed.
Ultimately, the U.S. Supreme Court held that in light of the Court’s Bruen decision and it’s reasoning therein, the rule now is that anytime an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed, and that to do so does not violate the Second Amendment. This decision was reached after a review of the historical development of the Second Amendment, as required by Bruen. In reviewing our country’s history from its “Founding” to the present, the Court concluded that “the Nation’s firearms laws” historically “have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition.”
2. Just a week earlier, the Supreme Court in a non-Second Amendment case dealt with what is known as “bump stocks.” On October 1, 2017, a mass shooting occurred when 64-year-old Stephen Paddock opened fire from his hotel room onto the crowd below him attending the Route 91 Harvest music festival on the Las Vegas Strip in Nevada. Shooting from his 32nd-floor suite in the Mandalay Bay hotel, Paddock fired more than 1,000 rounds, killing 60 people and wounding at least 413. The ensuing panic brought the total number of injured to approximately 867 people. About an hour later, he was found dead in his room from a self-inflicted gunshot wound. The motive for the shooting was never officially determined. This incident remains the deadliest mass shooting by one gunman in American history.
Not surprisingly this incident focused attention on firearms laws in the U.S., particularly with regard to what is commonly referred to as bump stocks, which is what Paddock used to enable him fire so many shots in rapid succession at a rate similar to that of a fully automatic firearm, or “machine gun.” As a result, the U.S. Justice Department attempted to ban bump stocks by a rule change in December, 2018, alleging that bump stocks are the equivalent of an illegal machine gun. However, in the case of Garland v. Cargill (June 14, 2024) __ U.S. __ [219 L.Ed.2nd 151; 144 S.Ct. 1613], a 6-to-3 majority of the U.S. Supreme Court ruled that the Department of Justice had no authority to implement such a ban in that a bump stock enabled firearm does not qualify, by definition, as a machine gun.
In so ruling, the Court attempted to explain what is meant by the “bump firing” technique. Specifically, it was noted that in using a bump stock, a shooter can fire a semiautomatic firearm at rates approaching those of some machineguns. Generally, the way it works is that a shooter who bump fires a rifle uses the firearm’s own recoil to help rapidly manipulate the trigger. Although bump firing does not necessarily require any additional equipment, a “bump stock” is an accessory designed to make this technique of increasing the frequency of repeated shots easier. The bump stock itself replaces a semiautomatic rifle’s stock (the back part of the rifle that rests against the shooter’s shoulder) with a plastic casing that allows every other part of the rifle to slide back and forth. This casing helps manage the back-and-forth motion required for bump firing. A bump stock also has a ledge to keep the shooter’s trigger finger stationary. In using a bump stock, the trigger must still be released and reengaged to fire each additional shot. However, the shooter is allowed to pull the trigger only one time to initiate a bump-firing sequence of multiple shots. This initial trigger pull sets off a sequence—fire, recoil, bump, fire—that allows the weapon to continue firing without additional physical manipulation of the trigger by the shooter.
The Court ultimately noted that even though there is a difference between the shooter flexing his finger to pull the trigger (as with a semi-automatic firearm) and pushing the firearm forward to bump the trigger against his stationary finger (as with a bump stock-equipped firearm), it is still not the same as a machine gun as defined by statute, which requires only a single finger pull on the trigger to fire off multiple rounds. Machine guns are illegal to possess, pursuant to the National Firearms Act of 1934 (26 U.S.C. § 5845(b); see also 18 U.S.C. § 922(o).) The Department of Justice attempted to make a bump stock the equivalent of a machine gun by rule. A majority of the Court held here that the DOJ cannot do that. The simple solution, as noted by the Court, is to amend the machine gun statute to include bump stocks. To date, the Legislature has failed to do that. Until they do, bump stocks are lawful.
3. One other recent U.S. Supreme Court case bares mentioning. In National Rifle Association of America v. Vullo (May 30, 2024) __ U.S.__ [144 S. Ct. 1316; 218 L.Ed. 2nd 642], the High Court held, in a nutshell, that the National Rifle Association of America (NRA) plausibly alleged in their lawsuit that a New York government official (Maria Vullo) who, as the superintendent of the New York Department of Financial Services as well as an admitted anti-gun advocate, had violated the NRA’s First Amendment (Freedom of Speech) rights. This occurred when in her official capacity, Vullo had, as alleged in the lawsuit, arguably pressured several state regulated insurance entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against these entities that, until then, had all refused to disassociate from the NRA and other gun-promotion advocacy groups. In so holding, the Court affirmed prior case law to the effect that, if true, the NRA’s First Amendment rights had been violated.
The Court here cites its prior decision of Bantam Books, Inc. v. Sullivan (1963) 372 U. S. 58, where the Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of what that government official considers, in her own personal opinion, to be disfavored speech. Ultimately, the Court remanded the case with instructions to review both censorship and retaliation claims, significantly broadening the scope of the relevant issues in a case such as this.
But the primary purpose of the Vullo decision it to forewarn us that government officials are potentially violating an organization’s First Amendment rights by using their statutory powers to pressure other organizations to disassociate themselves from the target organization. Agree with it or not, the NRA advocates a broad interpretation of the Second Amendment right to bear arms. A government official, using her powers to pressure other organizations to boycott, in effect, the NRA, violates the NRA’s freedom of speech in such advocacy.
