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A federal judge in Boston has rejected an alleged drug dealers argument that he had a Second Amendment right to possess two semiautomatic handguns for the purpose of protecting his stash of cocaine and fentanyl.

While some might find such a claim laughable, defense attorneys say the U.S. Supreme Courts 2022 ruling in New York State Rifle & Pistol Association v. Bruen has cracked open the door to artful arguments testing the boundaries of the constitutional right to bear arms in the context of criminal prosecutions.

Judge Nathaniel M. Gortons recent decision in U.S. v. Parsons represents one such effort.

A grand jury indicted defendant Malik Parsons on federal charges of conspiracy to distribute and possess with intent to distribute 40 grams or more of fentanyl and 500 grams or more of cocaine, possession with intent to distribute 40 grams or more of fentanyl and 500 grams or more of cocaine, possession of a firearm with an obliterated serial number, and possession of a firearm in furtherance of drug trafficking activity in violation of 18 U.S.C. 924(c).

According to prosecutors, Parsons trafficked narcotics out of an apartment in Mansfield. In an August 2021 search of the apartment, law enforcement allegedly discovered large quantities of cocaine, cocaine base and two semiautomatic handguns, one of which had an obliterated serial number.

The defendant moved to dismiss the charge for possession of a firearm in furtherance of drug trafficking activity, contending that the application of 18 U.S.C. 924(c) in his case violated his right of self-defense under the Second Amendment.

The defendant challenges the constitutionality of 924(c) as applied to him, where he is charged under a theory that the gun was possessed inside a location where drugs were stored as self-defense to avoid a drug robbery, Boston attorney Alyssa T. Hackett writes in her clients motion to dismiss.

Hackett, who declined an interview request, states that Bruen discarded the means-ends tests adopted by federal courts in the wake of the Supreme Courts 2008 decision in District of Columbia v. Heller, which affirmed that the Second Amendment encompasses an individual right to bear arms for the purpose of self-defense.

In discarding the post-Heller means-ends tests, the Bruen court adopted a text and history test for determining whether a challenged law passed constitutional muster.

That approach requires courts first to assess whether the challenged law is covered by the Second Amendments text and if so, whether that law is consistent with this Nations historical tradition of firearm regulation, Hackett writes.

According to Hackett, 924(c) failed that test as applied to her clients alleged conduct.

While the defendant might properly be prosecuted for actively using a gun in the drug trade, keeping a gun in the event of armed confrontation is precisely the conduct the Second Amendment protects, she says in the motion to dismiss.

Gorton took no issue with defense counsels recitation of the Bruen standard. Moreover, Gorton observed that Bruens analogical reasoning test has begotten a litany of challenges to federal criminal laws involving firearms.

While noting that some of those challenges have been successful, he observed that federal courts have uniformly rejected post-Bruen challenges to 924(c).

Gorton explained that Bruen hadnt overturned the principle expressed by the Supreme Court in Heller that the core Second Amendment right protects bearing arms for a lawful purpose.

Gorton concluded that Parsons constitutional challenge failed on that basis, saying for the government to prove that Parsons violated 924(c), it must demonstrate that he possessed a firearm to promote illicit activity. He claims that the charged conduct encompasses self-defense against robbery but allegations that a firearm was possessed for the indisputably unlawful purpose of defending a stash of narcotics and ill-gotten proceeds vitiates any constitutionally cognizable assertion of self-defense.

Jason A. Guida, a criminal defense attorney at Principe & Strasnick in Saugus who handles Second Amendment and firearm regulation cases, says Bruen has raised a number of questions that have yet to be answered.

Defense attorneys have to raise this issue at this point because we dont have clarity from the Supreme Court as to exactly how far Bruen goes and what those historical analogs are, particularly when it comes to public safety regulations, says Guida, whos not surprised by the decision in Parsons.

The decision here is similar to many decisions we are seeing post-Bruen, Guida says. Courts are really struggling with maintaining public safety regulations while juggling or handling this historical analog analysis.

Guida says the defense bar is keeping a close eye on two cases currently before the Supreme Court. In November, the court heard oral argument in U.S. v. Rahimi, which addresses whether a federal law that prohibits possession of guns by individuals under domestic violence restraining orders violates the Second Amendment.

Also on the courts docket is Garland v. Range, which addresses whether a federal law that prohibits the possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year is unconstitutional insofar as it applies to nonviolent offenders.

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Federal judge finds no right to bear arms for protection of drug stash - Maryland Daily Record

One federal appeals court ruled that Hunter Bidens gun charges could proceed this week, while another added support to his Second Amendment argument against them.

On Thursday, a three-judge panel on the Third Circuit Court of Appeals unanimously rejected an attempt by the Presidents son to avoid a trial. Biden tried to get the panel to end his case based on his since-retracted agreement with prosecutors. Instead, they decided he didnt have a claim to avoid prosecution.

The defendant in this criminal case appealed three pretrial orders entered on April 12, 2024, denying his motions to dismiss the indictment, the panel wrote in US v. Biden. This appeal is DISMISSED because the defendant has not shown the District Courts orders are appealable before final judgment.

The ruling means the younger Biden is likely to face a federal judge this summer, likely stealing some attention away from the legal troubles of his fathers opponent in Novembers election. However, the panel didnt rule on his underlying Second Amendment defense, and another federal court just provided further backing to that argument.

On the same day the Third Circuit denied Hunters request, a three-judge panel on the Ninth Circuit Court of Appeals ruled the federal gun ban he is being prosecuted under is unconstitutional as applied to a non-violent felon whose rap sheet includes a drug possession charge. The 2-1 ruling in US v. Duarteprovides some more ammunition for Hunters lawyers to use in his case. After applying the history and tradition standard for judging the constitutionality of gun laws handed down by the Supreme Court in 2022s New York State Rifle and Pistol Association v. Bruen, the majority decided there wasnt enough evidence the defendants previous crimes would have resulted in a lifetime gun ban at the time the Second Amendment was adopted.

Duartes underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding, the panel wrote. Duartes second predicate offensefelon in possession of a firearm, Cal. Pen. Code 29800(a)(1)was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938. As for Duartes remaining convictionsdrug possession and evading a peace officerwe do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, we cannot say that Duartes predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.

In a footnote, the majority in Duarte argued the drug possession charges were perhaps the least analogous to Founding Era laws.

Criminalizing drug possession, in particular, did not appear to gain significant momentum until the early 20th century, with the passage of such laws as the Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914, the panel wrote. Before then, what we now think of as illicit drugs, such as opium and cocaine, were . . . legal in the United States for a long stretch of this countrys history.

Bidens lawyers have argued the judge in his case should dismiss his three-count felony firearms indictment for purchasing and possessing a revolver during a time in his life for the same reasons.

Not only does the unconstitutionality of Section 922(g)(3) render Mr. Bidens alleged violation of that unconstitutional statute baseless, it compels the same conclusion as to the prosecutions charges that Mr. Biden made a false statement in denying his status as a user of a controlled substance under 18 U.S.C. 922(a)(6) and caused the seller (a holder of a federal firearms license) to maintain a record of this false answer in violation of 18 U.S.C. 924(a)(1)(A), their motion inUS v. Bidenreads.

The only other federal appeals court to rule on the question found the ban was unconstitutional as applied to a marijuana user.

In short, our history and tradition may support some limits on an intoxicated persons right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage, Fifth Circuit Judge Jerry E. Smith wrote for a unanimous three-judge panel in US v. Daniels. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.

Bidens lawyers cited that ruling in arguing his use of crack cocaine or other drugs should not have cost him his gun rights.

TheBruenframework is clear, and the historical record is immutable and the same before this Court as it was when the Fifth Circuit addressed it, they wrote.

Of course, not every federal judge has come down on the side of drug users or other non-violent felons whove challenged their gun possession charges. In fact, most have upheld those convictions by either determining Second Amendment protections only extend to the law-abiding or the historical gun bans cited in Duarte are analogous to the modern bans. The Supreme Court has not yet agreed to hear a case on the question and is unlikely to do so before Bidens case goes to trial.

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Analysis: Hunter Biden Gun Trial Looks Set for Election Season [Member Exclusive] - The Reload

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May 07, 2024 By David Codrea, Politics Field Editor

The Army has officially fielded its brand-new Next Generation Squad Weapon rifles to its first unit, bringing an end to the service's decades-long effort to replace its M4 and M16 family of military firearms, Military.com reports. Army Futures Command announced Thursday that soldiers from 1st Battalion, 506th Infantry Regiment, 101st Airborne Division, at Fort Campbell, Kentucky, accepted delivery of the XM7 Next Generation Rifle and XM250 Next Generation Automatic Rifle ahead of training in April.

Factor in the automatic rifles standard 13-inch barrel and suppressor, and the XM7 represent the trifecta of what government has fabricated legal pretexts to ban from those paying for it all, We the People.

The National Firearms Act of 1934 (NFA) requires the registration, with the federal government, of fully-automatic firearms (termed machineguns rifles with a barrel under 16 inches and firearm sound suppressors, NRA-ILA summarizes. And thanks to the Hughes Amendment, added to the so-called Firearms Owners Protection Act, and passed by a subjective (and still hotly contested) voice vote instead of by a recorded vote, new machineguns that were not registered prior to May 19, 1986, have been banned from private ownership.

So much for shall not be infringed. So much for the Founders understanding of what arms were meant to be. So much for the right of the people to keep and bear them as a deterrent to tyranny.

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So much for one thing about armed citizens the government has the Constitutional authority to involve itself in, organizing, arming, and disciplining, the Militia.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline, the Supreme Court noted in its 1939 U.S. v. Miller decision. And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time,

If the Bruen standard, of text, history, and tradition is to guide the law, what was in common use at that time was equal or superior (like the more accurate and longer-ranged Pennsylvania/ Kentucky rifles) to the Crowns standard-issue Brown Bess musket. Citizens mustered with the intent to match and to best a professional military threat. Arms in common use at the time by everyone meant arms in common use by infantries, who would otherwise prevail if not matched (and surpassed) in capability.

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Rather than deter tyranny, a dictated inferiority would invite it. To argue otherwise is to argue the Founders thought sending an outmatched yeomanry to their slaughter was necessary to the security of a free State. Thats insane.

And the prohibitionists are aided in citizen disarmament when gun rights leaders not only accept but argue for an invented in common use at the time qualifier that limits permitted firearms to what is commercially popular, as opposed to what soldiers and police carry (with the latter somehow magically transmuting their assault rifles and weapons of war into the more benign patrol rifles).

Major gun groups, in both their writings and in their legal challenges, have been focusing almost exclusively on what is commercially popular. One example is a new report from the National Shooting Sports Foundation documenting that detachable magazines with a capacity exceeding 10 rounds are the overwhelming standard for firearm owners in the United States. The report, which surveyed 30-plus years of detachable magazine production and distribution, demonstrated that of the conservatively estimated 963,772,000 detachable magazines supplied from a firearm manufacturer and in the aftermarket, at least 717,900,000 have a capacity exceeding 10 rounds, the limit some states place for lawful magazine possession.

Those are impressive numbers, prompting no shortage of self-styled gunfluencers to breathlessly gush about how that irrefutably establishes common use, and thus destroys legal arguments for magazine bans (not that it will stop states and inferior courts from continually defying the Bruen standard anyway). The point theyre missing is the numbers game works both ways. Returning to the FOPA Hughes Amendment referenced above, how many post-May 1986 M16s are in private hands and thus in common use?

One notable exception meriting Supreme Court attention is Gun Owners of Americas petition for certiorari with the Supreme Court in their challenge to the Protect Illinois Communities Act (PICA), an in-your-face infringement upheld by the anti-gun Seventh Circuit.

Unsurprisingly, the majority did not explain how the Founders permeating fear of standing armies like the one they had just defeated is compatible with the notion that they would voluntarily and intentionally subjugate themselves to possession of only second-class civilian weaponry that would make their future ability to resist tyranny (Heller at 598) impracticable, if not impossible, the petition points out.

From start to finish, the panel majority based its Second Amendment analysis on the theory that, when the Heller Court concluded that the Amendment recognized an individual right to keep and bear arms, it severed the connection between the prefatory clause which refers to the Militia and the operative clause, which refers to the right to keep and bear Arms, the petition elaborates. Drawing from Hellers statement that the meaning of operative clause is not limited to the prefatory militia clause), the majority concluded that the two clauses have no relation to one other actually, an inverse relationship creating a novel civilian versus military arms dichotomy.

The understanding at the time of the Founding era did not limit possession of some arms to Militia purposes. Thats perhaps best illustrated by the Pennsylvania Constitutions declaration that The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. [Emphasis added.] Just as theres no way to predict all the scenarios in which self-defense with a firearm is legally and morally justifiable, there can be no one size fits all solution defining the right tool for the job.

The other thing the Founders fully understood was that firearms technology was evolving. From long before their time, there were Fourteenth Century multiple-barreled volley guns and a design by Leonardo DaVinci for a rotating triple-barrel breech-loading cannon. The Founding Era had already seen pepperbox revolvers, Kentucky/Pennsylvania rifles, cartridges to combine shot and powder, the British breech-loading Ferguson rifle, the 11-cylinder crank-operated Puckle gun, and the Girandoni air rifle, capable of firing 22 .46 caliber balls and that had actually been used by the Austrian army 11 years before the Bill of Rights was ratified. And the above is by no means an exhaustive list.

The Founders were enlightened men, schooled in classical, political, and legal history, aware of current developments (and in cases like Thomas Jefferson and Benjamin Franklin, innovators and inventors themselves), and visionaries with eyes toward the future, and to secur[ing] the Blessings of Liberty to Posterity.

If the people of the Second Amendment can be denied arms based on them not being in common use for sport and for limited self-defense situations, what chance would they have resisting tyranny equipped with future weaponry that today would be considered the stuff of science fiction? Who knows what those imposing their demands will have at their disposal, along with the power to withhold from citizens 50 years from now, or 100, or beyond?

Since no innovation ever begins in common use, a government with the power to do so can ban all new weapon developments from those they would rule, retaining them exclusively for itself. Its what I warned about when I wrote Things to Come back in 2002 for Guns and Ammo:

Its been said that a battle isnt won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.

The Second Amendment does not say the right of the people to keep and bear arms in common use at the time shall not be infringed. If it had, the Anti-Federalists would have told the Framers to go to hell.

[EDITORS NOTE: As David Codrea explained, the Founders intended that the citizenry have the right to defend their liberty and lives against tyranny and genocide perpetrated by their own government. It is nonsensical for anyone to state: The Second Amendment was written to prevent tyranny, but it doesnt mean we can own machine guns and grenade launchers. as how would one defend themselves at such a disadvantage? Had the Founders wanted the government to have an advantage in weapons over the citizenry, they would have stipulated that the citizenry could own crossbows and catapults but not muskets and cannons they did not state any such thing in any of their writings. Something to think about when your favorite pro-gun politician or talking head states than machine guns should be banned.]

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at The War on Guns: Notes from the Resistance, and posts onTwitter: @dcodrea and Facebook.

If you have any thoughts or comments on this article, wed love to hear them. Email us at FirearmsNews@Outdoorsg.com.

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Next Generation Army Rifle Highlights Danger of Common Use - Firearms News

COLUMBUS, Ohio (WSYX) Is this the one?

Like Morpheus seeking the Chosen One inside The Matrix ... have two relatively new GOP lawmakers come up with a proposal designed to reduce gun violence that will actually win approval from Ohio's gun-friendly legislature?

Reps. Josh Williams, a criminal defense attorney from the Toledo area, and Bernie Willis, a Clark County deputy from Springfield, already are starting out ahead of their predecessors as well as Gov. Mike DeWine whose proposals crashed and burned in the name of the Second Amendment.

But the newbies say they already have backing from a major gun rights group, the Buckeye Firearms Association, as well as a pledge of neutrality from a rival organization, Ohio Gun Owners.

Willis said numerous meetings with critics of previous legislation on the divisive issue resulted in a new approach.

"We came into this knowing that Second Amendment organizations would certainly take a very tight and harsh look at this to make sure that we are doing the right thing, that we are starting with the presupposition that our Second Amendment rights are preserved," he said during a Statehouse news conference Tuesday afternoon.

Williams said: "With this legislation, we will continue to fight for the Second Amendment rights of citizens to keep and bear arms while simultaneously removing guns from the hands of violent felons."

Ohio Attorney General Dave Yost was asked about the prospects of this measure when so many have failed before.

"So, first of all, this is a new proposal," he said. "This represents a new take, a different kind of balance. And yes, I'm actually kind of an optimist this bill might move forward because it doesn't target the law-abiding gun owners. It targets criminals who use guns."

Making a subtle reference to internal divisions wracking the House and vastly slowing the pace of legislation passing, Yost said, "I'm confident that if this does not make it this time, it won't be because of the bill."

He is advocating passage because "it will make our cities safer. It will take guns off the street that belong to the bad guys and not affect the rights of law-abiding citizens."

Chris Clark, unopposed in the November election to become Clark County sheriff next year, said he likes the bill because "it's pointed precisely at the bad actor and not the firearm."

He also told ABC 6, "It's time someone stood up and says enough is enough."

Wood County Sheriff Mark Wasylyshyn, active for years in the Buckeye State Sheriff's Association, said it's too early for the group to consider an endorsement. But it's the type of legislation he says sheriffs could support.

So can Gov. Mike DeWine.

"The governor remains supportive of efforts to address the repeat violent offenders who commit the overwhelming majority of gun crimes in our state, who unlike lawful gun owners are often already legally prohibited from possessing firearms, and to make sure that our system has the appropriate penalties to discourage repeated gun crimes," said press secretary Dan Tierney.

DeWine has tried numerous times to go after frequent offenders, offering plans as attorney general shortly after the Sandy Hook mass shooting of school children; a proposal that was part of his response to demonstrators' shouts to "do something" after the 2019 mass shooting in Dayton's Oregon District; a section in his 2021 state budget; and admonitions in his State of the State address.

None passed.

Simply stated, the Repeat Offender Act would increase penalties for those who use a gun despite being barred from owning one because of an earlier conviction for a violent crime. The central premise stems from statistics that show the majority of gun crime in Ohio is committed by a handful of repeat offenders barred from having guns.

Concentrating on these offenders will go a long way toward alleviating the state's problems with gun violence, supporters said.

"I'm tired of turning on the news in Toledo and seeing four- and six-year-olds die in my community from stray bullets," Williams said. "I'm tired of turning on the news and knowing that there was a 4th of July block party in my community where over 80 rounds from AR15s and AK-47s were fired... This legislation will give our cities and towns the tools necessary to keep their communities safe and combat the epidemic of violent crimes in our state."

The plan also would automatically wipe out records of fourth- or fifth-degree felony convictions in five years presuming they didn't include violence or a sex crime. Williams acknowledged the Ohio Prosecuting Attorneys Association opposes the measure simply because of that provision.

Williams noted that county prosecutors will be the front lines of bringing the enhanced charges on gun violence.

"We need prosecutors of all 88 counties to really consider gun crimes a serious problem in our state. And what's going to happen is we're giving you stronger and stronger tools to use in your community."

If prosecutors won't use those tools to combat gun crimes, it will be up to voters to take action, the state representative said.

The other variable, of course, is judges.

"What we can do is draft legislation and show sure legislative intent to judges," Williams said.

"We can draft sentencing guidelines that show what we want to be done. And in some instances, we can try to help the judge by saying you must give the maximum but at the same time we gave some discretion."

Eric Delbert, a Columbus gun range owner who's followed the debate over guns for years, said the bill itself may be good but will depend on what judges do with it.

"It doesn't matter at the end of the day because simply the judges have the ultimate discretion," he told 6 On Your Side.

drowland@sbgtv.com

@darreldrowland

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Can this gun violence bill actually pass the Ohio legislature? GOP sponsors say yes - The CW Columbus

Governor Mark Gordons Office released a statement Monday confirming that the State of Wyoming has joined 20 other states in a lawsuit arguing that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is overstepping its authority and infringing on Americans Second Amendment right to privately buy and sell firearms. In the lawsuit, the coalition of states argue that the ATFs regulatory restrictions exceed the authority granted to the agency by Congress and are a violation of the Second Amendment.

According to the complaint, The right to keep and bear arms is central to our countrys history and traditions, so Congress must be careful when addressing that right through federal legislation. Under the final rule, the defendants would put innocent firearms sales between law-abiding friends and family members within the reach of federal regulation, the complaint continues.

Gordon said the Biden Administration is attempting to treat every legal gun owner as a commercial gun dealer, and every gun sale or trade as a commercial transaction, and that the administration is exceeding its authority and targeting our Second Amendment rights without going through Congress. In December, Wyoming joined 25 other states in signing a comment letter opposing the new rule. The states have asked the Court to vacate the rule as contrary to law.

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Wyoming joins 21-State Coalition in Lawsuit in Defending Second Amendment Rights from Federal Overreach - Sheridan Media