It’s always fun when I’ve got the chance to sit down with Stephen Gutowski, founder of The Reload, and kick around some of the big 2A stories out there, and today’s Bearing Arms Cam & Co is no exception. We covered a lot of ground in our conversation, starting with the New York Times going after the Lake City Army Ammunition Plant for producing ammo used by both military and civilians, but that’s just the tip of the iceberg. Other topics on today’s show include:
- Are Democrats losing or gaining ground in their attempts to ban “assault weapons”?
- Could the bump stock case known as Garland v. Cargill give SCOTUS a chance to weigh in on semi-auto bans?
- The surge in Israelis applying for gun licenses
- The differences and similarities between Israel’s gun laws and our own
- Are the courts playing “Keep Away from SCOTUS” when it comes to important 2A cases?
That last topic was particularly interesting to me in light of the Seventh Circuit’s recent determination that so-called assault weapons aren’t protected by the Second Amendment because they’re “like” machine guns; an opinion that not only opens the door for a sweeping ban on semi-automatic long guns but the vast majority of handguns sold in the United States as well.
There are multiple challenges to “assault weapon” bans kicking around the appellate courts, but as Gutowski notes, they’re all in jurisdictions that have traditionally been skeptical or downright hostile to our Second Amendment rights because those are the locations where bans have been instituted. A circuit split on the constitutionality of a gun ban could still happen depending on what the Fourth Circuit decides in Bianchi v. Brown, which is a challenge to Maryland’s ban on arms legislators have labeled “assault weapons”, but the Ninth and Seventh Circuits are almost guaranteed to uphold bans in California and Illinois.
December 6th will mark the one-year anniversary of the Fourth Circuit’s oral arguments in Bianchi, and there’s a very good chance we won’t have heard from the three-judge panel that heard the arguments when that date rolls around. It’s also possible that the panel will decide after all these months that the issue needs to be more fully briefed; sending the case back down to district court for a complete do-over, though that would be an egregious example of the games that are being played by some activist judges who seem to be dragging their feet in issuing decisions or slow-walking cases to keep them out of the hands of Supreme Court justices until the makeup of the Court has shifted in favor of anti-2A positions.
As Gutowski says, litigation strategy is seen all the time, but it’s usually litigants who are making those strategic decisions and not the men and women sitting on the bench, who are supposed to be impartial fact-finders that base their decisions on what the Constitution says and precedential Supreme Court rulings. In the post-Bruen legal landscape, however, there are a number of judges who appear to be basing their rulings on their own personal opinions instead of the text of the Second Amendment and the history and tradition of keeping and bearing arms. It’s a little too early to apply that to the Fourth Circuit panel in Bianchi, but as the days and weeks go by without a peep from the three-judge panel, it’s also hard not to assume that there are some games being played. In fact, just a few hours after Stephen and I talked about this, attorney Kostas Moros vented his exasperation on the same topic on social media.
A law should be enacted requiring that appeals cases raising constitutional issues need to be decided within a specified time limit. 90 days, 180 days, something like that. It's absurd that courts can stall for over 6 months just to then, for example, kick a case on standing, as…
— Kostas Moros (@MorosKostas) November 14, 2023
Again, this is just a small portion of our conversation, and I encourage you to check out the entire discussion in the video window below as well as supporting Stephen’s excellent reporting over at The Reload. I appreciate his time, and I’m looking forward to continuing the dialogue in the very near future.