Order In The Courts

Did Anti-Gunners In Calfornia, Oregon Push Too Far?

Just before the holidays, a pair of judges — one a state circuit court judge in eastern Oregon’s Harney County and the other a federal judge with the U.S. District Court in San Diego — handed the gun prohibition crowd a pair of setbacks and anti-gunners didn’t like it.

So far, so good.

As noted by Insider earlier, Oregon appears tied up on knots of its own making. Four federal lawsuits and one state case are all challenging the constitutionality of Measure 114, the now-infamous initiative passed barely by Beaver State ‘Leave It To The Beaver State’ voters in November. It requires gun safety training and a permit from police before you can purchase a firearm, and it bans so-called “large capacity magazines” capable of holding more than 10 rounds.

While a federal judge in Portland ruled against one of the four lawsuits in her court, essentially allowing the measure to take effect, Circuit Judge Robert S. Raschio in the city of Burns derailed things by issuing a temporary restraining order against the permit requirement, and preliminary injunction against enforcement of the magazine ban pending a full court trial.

This was no small development in a case which has brought together every heavy-hitting gun rights organization on the landscape — the Second Amendment Foundation, National Shooting Sports Foundation, Gun Owners of America, Firearms Policy Coalition and, because the NSSF lawsuit involves the Oregon Sport Shooting Association, the National Rifle Association, of which OSSA is an affiliate. Now, by default, this also puts the Citizens Committee for the Right to Keep and Bear Arms “sort of” on the playing field, or at least warming up on the bench, because SAF is its sister organization and OSSA just happens to also be one of its state affiliates.

As Kevin Starrett at the Oregon Firearms Federation — which filed the first federal lawsuit in Portland — noted, this is the first time he can remember when all of the major gun groups came together against an issue, at least in his state. He predicted that at some point, and this could take a while as this legal battle unfolds, all of the federal lawsuits could be consolidated. The fight in Harney County is another matter, and so far, it’s the one that showed some promise early on.

California Confrontation

While Oregon’s measure has been bouncing off the courtroom walls, a federal judge in San Diego — Senior District Judge Roger T. Benitez has been handing anti-gunners one setback after another.

This time around, he has blocked enforcement of a nasty tenet contained in a new California statute referred to as “fee shifting.” The simple explanation is that under this law, any gun rights group, individual activists and their attorneys would be liable for all court costs if they bring a legal action and fail to win 100% of the case.

“I can’t think of anything more tyrannical,” Benitez said in court.

The backstory on this poison pill law is that it was adopted simply out of spite (revenge) for a Texas abortion law allowing lawsuits by private parties against abortion providers. California Gov. Gavin Newsom and his allies in the Legislature support abortion and hated the Texas law. So, the Californians figured to get some payback by adopting a law with nearly identical provisions, except that the Golden State statute applies to guns.

The Associated Press quoted Benitez at his best, observing from the bench: “We’re not in a kindergarten sandbox. It’s not about, ‘Mommy he did this to me so I should be able to do this to him.’”

An adult was needed in the room, and Judge Benitez stepped into that role nicely.

The fly in this ointment is that Newsom has already argued the Texas law is unconstitutional, but he wants the federal court to uphold California’s law. Benitez was having none of it.

According to the Associated Press, Judge Benitez believes the fee provision would have a chilling effect on the public’s right to bring legal actions against California gun laws. It’s the same argument SAF’s Alan Gottlieb has made against the fee shifting provision.

Judge Benitez has been overturned before by the predominantly liberal Ninth Circuit Court of Appeals in San Francisco. But that was before the U.S. Supreme Court handed down the Bruen ruling in June, eliminating a two-step scrutiny process for analyzing Second Amendment challenges that combines history with “means-end scrutiny.”

Heading into the New Year, the Bruen ruling is likely to continue causing headaches for lower court federal judges who have treated the Second Amendment with disdain, but as the majority opinion in Bruen noted, the Second Amendment is not a second-class right.

Meanwhile, It’s Ron

The presidential election in 2024 is more than a year over the horizon, but it’s already making news, and a recent Suffolk University/USAToday poll revealed something likely to put that race in high speed this year.

Looks like Republican voters prefer Florida Gov. Ron DeSantis over former President Donald Trump as their standard-bearer in the 2024 election. By no surprise, DeSantis edged Joe Biden 46.6% to 42.7%, while Biden bested Trump 47.3% to 39.5% in a possible rematch.

The “catch” here is that DeSantis out-distances Trump only in a one-on-one matchup. In a crowded GOP field, that could change. Remember, Trump emerged in 2016 from a large field simply by outlasting everyone else. His policies were very popular and the economy did well, and he’s the only sitting president in recent memory to routinely mention the Second Amendment in every speech, including his State of the Union address.

A different poll, by Five Thirty Eight/Ipsos, had Biden leading among potential Democrat contenders. Other possible names on the list included Transportation Secretary Pete Buttigieg, Vice President Kamala Harris and California’s Gov. Newsom.

Something else worth noting in the Suffolk poll is that 60% of voters want neither Biden or Trump to run in 2024.

U.S. Wins Arms Race

A recent report in The Guardian says Americans purchased about 150 million firearms over the past 10 years “as a drumbeat of mass shootings and other violence has convinced more people that owning a gun for self-defense will make them safer.”

The Guardian is a British publication, and it has always impressed me how the Brits seem to have a fascination with America’s “gun culture.” The article cited a survey conducted by Harvard and Northeastern University, estimating the number of gun owners in the U.S. increased from 55 to 75 million since 2015. My guess is the number is actually closer to, or maybe in excess of, 100 million.

Here’s a little challenge: Count the number of guns you own. You don’t have to tell anybody, just count them. The answer might explain why no foreign army since 1812 has tried to invade the Continental United States. Just a thought.

Georgia Self-Defense

A would-be robber identified by WMAZ News as Joshua Hickey ambled into a Warner Robins, Ga. restaurant wearing a mask and hood, and carrying a pistol.

It was a mistake of terminal proportions.

According to the report, the suspect “jumped the counter and attempted to make his way to a door in the restaurant while demanding money.” He probably shouldn’t have tried to do so many things at once.

Hickey allegedly “pistol whipped” a restaurant employee and the two men began fighting over the gun. To Hickey’s surprise, this unidentified worker came up with his own gun and fired three rounds, connecting with two of them. The suspect then fled, but when the police showed up they found him, put him in the cruiser and sped to a hospital.

The trip was to no avail, however. Hickey died in the hospital.

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