The Courts and The Second Amendment
Gregory Kielma • August 5, 2024
Courts Attack Second Amendment, Right to Buy Firearms
Courts Attack Second Amendment, Right to Buy Firearms
By
Larry Keane
There’s an interesting – if not devious – trend emerging in some Second Amendment cases. The first step of the U.S. Supreme Court’s Bruentest is to ask whether the conduct at issue is covered by the text of the Second Amendment which protects a pre-existing “right to keep and bear arms.” Some lower courts in purporting to apply the Bruen test are upholding gun control laws by holding that you do not have a Second Amendment right to buy a firearm.
That’s intellectually dishonest, to say the least. The ability to freely approach the gun counter to legally purchase a firearm is paramount to exercising the Second Amendment rights to keep and bear arms. There is no “keeping” of firearms if there is no legal right to lawfully acquire those same firearms. The ramifications of this flawed legal reasoning are self-evident. The government could simply ban the buying (and selling) of firearms and therefore eviscerate the Second Amendment all without infringing upon the right.
Right to Buy
The most recent example comes from New Mexico, where a federal district court judge refused to preliminarily enjoin the state’s seven-day waiting period for purchasing a firearm. There were several serious concerns with this decision, including the judge’s determination that the lengthy waiting period doesn’t constrain the rights to keep and bear arms. The judge contended that the waiting period only minimally burdens the “ancillary right to acquire firearms.”
That might come as news to an individual facing imminent threat to their safety or even their life. A woman who is the victim of domestic violence who considers purchasing a firearm to protect herself and her family could argue that the state’s seven-day waiting period is a seven-day ban on her ability to lawfully keep and bear arms when she knows there’s a threat to her life.
That wasn’t the worst of it. The same judge concluded that the waiting-period law is presumptively constitutional” given that the first waiting period laws were enacted in the 1920s – long after U.S. Constitution was ratified, and the 14th Amendment adopted. The judge even pointed to past, discriminatory laws that restricted the sale of firearms to slaves, freedmen and Native Americans. It is astonishing that a federal judge relied on racist laws that have been repudiated by the courts and American society to justify a gun control law.
However, that’s not what the Supreme Court held in the Bruen decision. That test, the Court said, is that gun control laws must have a “history and tradition” consistent with when the Second Amendment was signed into law in 1791 at the nation’s founding.
Court Concerns
It would be tempting to dismiss this judge’s decision as a “one-off” aberration. Unfortunately, that’s not the case. A 2024 decision by the U.S. District Court for the Southern District of New York explicitly said that there is no Second Amendment right to purchase a second handgun within a 90-day window of purchasing a previous handgun.
“The question thus becomes whether a waiting period before the purchase of a second handgun is conduct covered by the text of the Second Amendment. It is not,” the court ruled in its opinion of Knight v. City of New York.
What the court is saying is that the government can ration the exercise of a Constitutionally protected right, in this case, to just once every 90 days. This would be unthinkable if a court ruled that a law-abiding American could only exercise their rights to free speech or attend a church, mosque of synagogue of their choosing every three months. The federal court here is relegating the Second Amendment to a second-class right, that Justice Clarence Thomas has warned about.
That line of thinking wasn’t limited to New York. The U.S. District Court for the District of Vermont upheld the state’s waiting-period law, in Vermont Federation of Sportsmen’s Clubs v. Birmingham this year, by claiming there’s no Second Amendment right to legally purchasing a firearm.
“The Court finds that the relevant conduct – acquiring a firearm through a commercial transaction on-demand – is not covered by the plain text of the Second Amendment,” wrote Judge William Sessions III. He quizzically added, “Plaintiffs may keep and bear arms without immediately acquiring them.”
That defies logic. It is impossible to legally keep and bear anything without the ability to lawfully purchase it first.
In 2023, the U.S. District Court for the District of Colorado ruled against Rocky Mountain Gun Owners seeking to enjoin a three-day-waiting period law signed by Gov. Jared Polis. In this decision, the federal court ruled that the Second Amendment doesn’t explicitly say anything about legally acquiring a firearm.
“From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period – the receipt of a paid-for firearm without delay – is not covered,” the decision reads, adding, “To ‘keep,’ under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, ‘having weapons’ indicates the weapons are already in one’s possession, not that one is receiving them.”
The U.S. District Court for the Eastern District of Pennsylvania ruled in 2023 in U.S. v. King that there is no right to buy and sell firearms. In fact, Judge Joseph Leeson Jr. clearly states that it is a factor he didn’t – and wouldn’t – consider, writing, “…the Court looks at the Second Amendment’s plain text; it does not consider ‘implicit’ rights that may be lurking beneath the surface of the plain text.”
“Even if the Court assumed that there is an implicit right in the Second Amendment to buy and sell firearms in order to keep and bear arms, that is not the same thing as a right to buy and sell firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms,” Judge Leeson wrote. “In other words, the Second Amendment does not protect the commercial dealing of firearms.” Of course, while Heller said commercial regulations could be presumptively valid, it never suggested that the buying and selling of commonly used “arms” could be banned.
Governors Knew in 2020
Juxtapose that with governors who, just four years ago, quickly reversed their policies to order firearm retailers to close their doors during the 2020 COVID-19 pandemic. New Jersey’s Gov. Phil Murphy reversed course from his initial ordering of gun stores to be closed. He recognized that denying the ability of law-abiding citizens to legally obtain a firearm is denying them the ability to exercise their Second Amendment rights. Pennsylvania’s former Gov. Tom Wolf did the same, even after Pennsylvania’s Supreme Court denied a challenge to the order. The quiet about-face was in light of what could have become a U.S. Supreme Court challenge.
A federal judge ordered former Massachusetts Gov. Charlie Baker to allow firearm retailers there to reopen. The judge ordering the injunction wrote, “The exigencies surrounding this viral pandemic both justify and necessitate changes in the manner in which people live their lives and conduct their daily business. However, this emergency – like any other emergency – has its constitutional limits. It would not justify a prior restraint on speech, nor a suspension of the right to vote. Just the same, it does not justify a ban on obtaining guns and ammunition.”
Divorcing the right to freely approach the gun counter at a firearm retailer and the right to keep and bear arms is a dangerous slope. Firearms are legal products, available for anyone to freely purchase who is over the age of 18 for long guns or 21 for handguns, provided that individual is purchasing the firearm for him or herself and can pass the FBI’s National Instant Criminal Background Check System (NICS). Conditioning that right – whether through waiting periods which are an attempt to delay the exercise of that right – or by unmooring the right to legally purchase a firearm is a violation of the rights that belong to the people.
Imagine a court ruling that the First Amendment doesn’t include the right to buy a book. Or a law that said you can only buy a newspaper after waiting seven days. Or a law that limits how many books you can buy in a month. Or a law in which the government decides which books you are allowed to buy and read? Obviously, no one would tolerate such laws. So why is it acceptable for Second Amendment rights? The answer, sadly, is that despite the Heller, McDonald and Bruen decisions, because some legislative bodies and judges treat the Second Amendment as a “second class right.”
Will Texas weed ruling restrict state gun ownership? Story by Ahmed Humble The familiar phrase "they're coming for your guns" may no longer be hyperbole if the U.S. Supreme Court has anything to say about it. On Monday, the Supreme Court said it would consider whether regular marijuana users can legally own firearms. This comes after the White House asked justices to re-examine a case against a Texas man, Ali Danial Hemani, who was charged with a felony because he allegedly had a gun in his home and acknowledged being a regular pot smoker. SCOTUS typically hears arguments in the fall season and aims to issue decisions by late June or early July, though exact timing is rarely predictable. "The issue here is whether the federal government can prosecute people for owning firearms while being a user or addicted to a controlled substance," Seth Chandler, attorney and professor at the University of Houston Law Center, explained. "So, it doesn't make any difference whether Texas permits you to own a firearm. The federal government is coming in and saying, 'We don't care that Texas thinks it's fine that you own a firearm. We, the federal government, do not think it's fine that you own a firearm and are therefore going to criminally prosecute you because you are a user of or are addicted to marijuana.'" Even though Texans' attitudes toward cannabis may have changed, per a recent UH Hobby School Survey, Chandler argues that whether it is fair to go after marijuana users is beside the point. "Congress has singled out use of controlled substances as a basis for restricting people's ability to own firearms, and there are a lot of people who think that that is not a very precise measure as to who should be prohibited from owning a firearm," he added. "You may think the law is stupid, but the fact that the law is stupid doesn't mean that it's unconstitutional." Other legal experts, like criminal defense attorney Maverick Ray admit that Texas' murky marijuana might make it hard to enforce. And the ongoing dispute between Gov. Greg Abbott and Lt. Gov. Dan Patrick over THC restrictions hasn't helped. "We can't even enforce the prosecution of suspected illegal marijuana possession–simple possession," he noted. "We haven't developed scientific testing to properly differentiate THCA, which has been legalized here in Texas and across the United States, versus actual illegal marijuana." Ray pointed out as well that targeting marijuana as a "controlled substance" seems like an easy target when there are arguably other substances that should be examined. "It's a little absurd," Ray said. "Common sense tells you there's a whole lot of other substances, even legal ones that cause one's mind to be more violent, to be more out of control that you wouldn't want possessing a firearm. Take, for instance, alcohol. Alcohol is going to go completely unscathed from this whole challenge, because the federal law specifically says alcohol is legal. So since alcohol is not classified as a controlled substance for this statute's purposes, it basically allows you to get as wasted as you want and have a firearm." Whichever way the pendulum swings, the Supreme Court's ruling could nonetheless have far-reaching consequences for gun owners nationwide, especially in states where marijuana is legal but still banned federally. A decision is expected sometime next year.
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Why is the Glock pistol not available to regular citizens? Gregg Kielma Truth or Not? Your THOUGHTS. There are only a few Glock pistols that are not obtainable. Glock 18, a mythical selective fire factory pistol. I’ve been told by people that should know that it never existed for sale in the US. There are non-factory original modified selective fire Glocks. But that’s another story. The G18C is for LEO and military only. Glock 7 , “ ceramic guns that cost more than you make in a month” fictional, never existed. The Glock 25 and 28 are not allowed in the US because they are made solely in Europe and can't be imported. Their rating on the ATF points system is too low to pass import because of the Gun Control Act of 1968. Other than some standard capacity magazines that the left think are WMDs, all Glocks are available to background checked , law abiding citizens of the US.
Marijuana and Firearm Ownership (Source: TFP File Photo)© Tampa Free Press Says Gregg Kielma an FFL and Firearms instructor, “if you are carrying a gun and intoxicated with alcohol or marijuana in your system, you have no business owning a firearm. Plain and simple. Shame on you. Think people, THINK! Lets take a look! The Supreme Court announced Monday that it will consider whether individuals who regularly use marijuana can legally own firearms, taking on a new Second Amendment challenge following its landmark 2022 ruling that expanded gun rights. The case, United States v. Hemani, centers on a federal law that prohibits gun possession by anyone who is an "unlawful user of or addicted to any controlled substance." The Justice Department, under President Donald Trump's administration, is appealing a lower court's decision that tossed out a felony charge against Texas resident Ali Danial Hemani. Hemani was charged after authorities found a gun in his home, and he admitted to being a regular cannabis user. The Fifth U.S. Circuit Court of Appeals had ruled that the blanket ban on gun ownership for illegal drug users was unconstitutional as applied to Hemani, based on the Supreme Court's new standard that gun restrictions must align with the nation’s historical tradition of firearm regulation. However, the appellate court noted that the law could still be used against people who are armed and intoxicated at the same time. The Justice Department is advocating for the ban, arguing that regular drug users pose a serious public safety risk and that the restriction is a justifiable measure. Attorneys for Hemani counter that the broadly written federal law places millions of Americans at risk of technical violations, especially as nearly half of states have legalized marijuana for recreational use, even though it remains illegal under federal law. The Court's decision will serve as a crucial test for applying its 2022 ruling, which requires gun laws to have a strong grounding in historical tradition. Please make a small donation to the Tampa Free Press to help sustain independent journalism. Your contribution enables us to continue delivering high-quality, local, and national news coverage. Sign up: Subscribe to our free newsletter for a curated selection of top stories delivered straight to your inbox.
NRA, Other Second Amendment Groups Target NFA With Yet Another Lawsuit Mark Chesnut A coalition of gun-rights organizations has taken another step in the effort to dismantle the National Firearms Act (NFA). On October 9, the National Rifle Association (NRA), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC) and American Suppressor Association (ASA) filed another lawsuit challenging the 1934 law. At issue is whether the law is even applicable now that the $200 tax on suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs) and any other weapons (AOWs), as defined by the law, was removed in President Donald Trump’s “One Big Beautiful Bill.” In the latest lawsuit, Jensen v. ATF, filed with the U.S. District Court for the Northern District of Texas, plaintiffs argue that since the tax has been eliminated, the NFA’s registration regime can no longer be justified under Congress’s taxing power—nor any other authority granted under Article I of the Constitution. “The One Big Beautiful Bill Act (“BBB”), signed into law by the President on July 4, 2025, eliminated the making and transfer taxes on suppressors, short-barreled rifles, short-barreled shotguns and NFA-defined “any other weapons,” while leaving the registration requirements intact,” the complaint states. “In other words, individuals no longer have to pay taxes for making and transferring most firearms under the NFA, but the firearms are still required to be registered and are subject to the ‘web of regulation’ that was designed to ‘aid enforcement’ of the NFA’s (now-extinct) tax. This regulatory regime no longer comports with Congress’s constitutionally enumerated powers.”
Jay "Hypocrite" Jones an Evil Leader Gun Control Hypocrisy: Silence When Their Own Push Violence The gun control lobby has spent decades preaching about “ending gun violence.” But when one of their own openly fantasizes about murdering a political opponent—and his children—the silence is deafening. Recent revelations from text messages sent by Jay Jones, the Democratic candidate for Virginia Attorney General, have shaken even the most cynical observers in Richmond. Jones, then a member of the Virginia House of Delegates, sent grotesque messages wishing death upon his political rival, Republican Speaker Todd Gilbert, and his children. “Three people, two bullets. Gilbert, Hitler, and Pol Pot. Gilbert gets two bullets to the head,” Jones texted to Republican Delegate Carrie Coyner in 2022. When confronted, Jones doubled down stating that he “wished” the Speaker’s children would be shot and “die in their mother’s arms.” These are not the words of a random internet troll. They came from a Democratic candidate for the Commonwealth’s top law enforcement position—and someone funded heavily by the nation’s leading gun control organizations. Everytown, Brady, and Giffords: Cash and Complicity It’s not surprising that Jones was backed by the same groups that constantly push for “commonsense gun safety.” The Hypocrisy Everytown for Gun Safety, the Michael Bloomberg-funded political juggernaut, dropped $200,000 into his campaign. They called him a “gun sense candidate” and an “advocate for safer communities.” Since Jones’ violent texts came to light, Everytown’s leadership—including John Feinblatt, a prolific social media user—has said nothing. Not a tweet. Not a statement. Not even a quiet retraction. Brady PAC, meanwhile, quietly deleted its press release endorsing Jones, scrubbed his name from its website, and offered the weakest possible condemnation: “Violent rhetoric has no place in our political process.” No mention of Jones. No withdrawal of support. Just damage control. Giffords PAC, founded by former Rep. Gabby Giffords, still has its endorsement of Jones live on its website—yes, the same organization born from a tragedy involving political gun violence. Moms Demand Silence: The hypocrisy doesn’t end there.
FBI Continues To Publish Inaccurate Data On Armed Citizens Stopping Active Shooters Mark Chestnut Few gun owners were surprised when we learned that the Federal Bureau of Investigation (FBI) under President Joe Biden had fudged the numbers when reporting active shooters stopped by armed citizens. Now, however, the Trump Administration FBI is continuing the practice, far underreporting the number of incidents where armed citizens are the real heroes. According to an October 2 report by John Lott posted at realclearinvestigatiins.com, the past trend of the FBI underreporting armed citizens who stopped active shooters continues to be a problem. And Lott, president of the Crime Prevention Research Center (CPRC), said it’s not just a small discrepancy; the FBI is grossly underreporting the numbers. “Even though the FBI acknowledged the issue at the time, it never corrected the error involving the politically fraught issue,” Lott wrote. “In the years since, the problem has only gotten worse. Since RCI’s 2022 article, the FBI has acknowledged just three additional incidents of armed good Samaritans stopping active shooters from 2022 to 2024, and none in the last two years. In contrast, the Crime Prevention Research Center (CPRC), which I head, has documented 78 such cases over that same period—a 26-fold difference.” The FBI defines active shooter incidents as those in which an individual kills or attempts to kill people in a public place, excluding shootings that are related to other criminal activity, such as robbery or fighting over drug turf. They include instances from one person being shot at and missed all the way up to a mass public shooting. “In 2022, the FBI reported that only 11 of the 252 active shooter incidents it identified for the period 2014-2021, or 4.4%, were stopped by an armed citizen,” Lott wrote. “However, an analysis by my organization identified a total of 281 active shooter incidents during that same period and found that 41 of them—or 14.6%—were stopped by an armed citizen.” As Lott further pointed out, the FBI report compiled for the Biden administration for 2023 and 2024 contains worse errors. “It asserts that armed civilians stopped none of the 72 active shooting cases it identified,” he wrote. “The CPRC, by contrast, identified 121 active shooter cases—45 of which were ultimately halted by armed civilians. Those incidents included eight cases that likely would have resulted in mass public shootings with four or more people murdered.” Ultimately, Lott said that the FBI has the ability to set the record straight in at least some cases, providing a clearer view of remedies to crime. “But its unwillingness to correct errors—or its efforts to fix them on the sly, as RCI reported last year—and improve its methodology raises more concerns. Its shortcomings regarding armed citizens thwarting active shooters illuminate many of these problems. Lott’s report at realclearinvestigations.com also delves into the dangerous fallacy of so-called “gun-free” zones. Those interested in learning more about the FBI’s underreporting of armed heroes and the danger of “gun-free” zones should give it a good read.
If I legally carry a firearm and someone is robbing a store I'm in, can I draw the weapon if the robber has a knife? If no shots are fired, is this legal? From Jim Z an avid reader of the blog. It depends on your political climate in your state, and the laws where this takes place. Let’s use New York City: You’re carrying a firearm. Do you have a NYC-issued permit to do so? If not, you just bagged yourself five years in jail. NYC recognizes NO OTHER firearms permit, even those issued by New York STATE, as valid, within city limits. You brought a GUN to a KNIFE fight. You’re using a MORE deadly weapon than your opponent. That’s known as “escalation of force”, and it kills any futile attempt you make at a self-defense plea. You DREW your gun. You committed “menacing with a deadly weapon”, even though NEITHER of you did ANYTHING . Because YOU have a GUN , and HE has only a KNIFE, YOU are the guilty party. Using a weapon of ANY kind, except for your bare hands, to defend yourself, is illegal in New York City, thanks to many decades of Democrat rule, and the mindless citizens that keep voting them into office.
Bradenton man cleared of assault charge using ‘stand your ground’ defense Credit: WWSB Sarasota/Bradenton Florida BRADENTON, Fla. (WWSB) - Charges have been dismissed against a Bradenton man accused of starting a gunfight that wounded his girlfriend and himself during a domestic dispute, Manatee County Court Judge Frederick Mercurio accepted Kevin Armstrong’s “Stand Your Ground” defense Monday and will dismiss the charges of aggravated assault with a deadly weapon. Mercurio ruled that Armstrong’s fear of harm was well-founded, even if his actions were not the wisest. “The better practice would have been for you to call the police, stay in your house and not go out there with a gun,” Mercurio said. “My legal conclusion is that Mr. Armstrong was reasonably believing that be needed to use or threatened to use force in order to prevent is imminent death or his great bodily harm.” Armstrong’s attorney, Jon Weiffenbach, told ABC7 Monday that the charges will be dismissed as soon as the court enters an order. “For all intents and purposes, this case is over,” he told ABC7 via email. The arrest report According to the arrest report, a 911 call was logged around 8 p.m. from the Sunny Shores Mobile Home Park on 116th Street West. According to the Manatee County Sherriff’s Office, an argument broke out between Armstrong and his girlfriend, Caitlin Lipke, 33, at their home in the park. Lipke left the residence and met two men, Cole Banyas and Dylan Taylor, who used a golf cart to accompany her back to the home so she could retrieve her dog and personal items. The arrest report noted Banyas and Taylor were both armed with “a myriad of weapons, including long guns and pistols.” When they arrived, deputies say another argument ensued and Armstrong had armed himself with a shotgun. Banyas and Taylor told deputies Armstrong began shooting at them and they retuned fire, sending 9 to 10 rounds toward Armstrong and the house. Lipke is shot in the chest during the melee, deputies noted, saying in their report “she may have inadvertently been hit by Dylan while he was trying to protect her from Kevin.” Lipke and her friends retreated on the golf cart to a nearby intersection where they called 911. The motion to dismiss Armstrong filed a motion to dismiss the charge Sept. 16. In that motion, Armstrong said one of the two men with Lipke phoned him, saying they were coming to retrieve Lipke’s belongings, “and if he didn’t cooperate they were going to kill him,” the motion says. After arming themselves, they drove a golf cart to Armstrong’s home. Lipke shoved Armstrong, “and Cole Banyas and Dylan Taylor displayed their firearms in a threatening manner while still in the golf cart.” As Likpe walked toward the golf cart, Armstrong fired a single shotgun blast into the air as a warning. Taylor then returned fire, striking Likpe in the breasts and unloading the rest of the magazine into Armstrong’s house, shooting Armstrong in the foot. The motion to dismiss argued Armstrong had the right to defend himself “against the alleged victim’s imminent use of unlawful force OR to prevent the commission of a forcible felony.” The motion also argued the burden of proof is on the state to prove by “clear and convincing evidence” that a defendant is not entitled to full immunity. It also argues “the court may not deny a motion simply because factual disputes exist. “Wherefore, because the defendant acted in self-defense as set forth herein, he is immune from prosecution based upon the Stand Your Ground law and this case must be dismissed,” the motion concluded.
Can I own a gun if I have a very old felony? Over ten years? Federally, no. In at least one state, yes, provided you don’t get it from a Federally-licensed dealer, and you always keep it in your home. Texas state law criminalizes “felons in possession”, but only if they possess the weapon within 10 years of the full completion of their sentence including probation/parole, and/or if the weapon is possessed outside the home. So theoretically a felon 10 years passed his sentence, including parole, can own a gun and keep it in his home for his own defense. EDIT: the law has changed since this post, to reduce the term to 5 years after completion of incarceration and/or supervised release. Under Federal law, however, a person in possession of a firearm who has been convicted of any crime punishable by more than a year in jail is committing a Federal crime worth ten in the pen, no matter how long ago the conviction was. The Feds usually have better things to do than bust ex-felons, much to the frustration of local police in many cases, but if you draw attention to yourself or commit any other crime the Feds are more willing to prosecute, the gun possession is an additional 10-year gimme. If the felony is that old and you’ve stayed out of trouble and built a respectable life since getting out, you can avoid Federal problems by petitioning the court for a restoration of civil rights. Basically, the court says that you’ve demonstrated yourself sufficiently rehabilitated that you should no longer have the limitations on your rights that come with being an ex-con. That’s typically something you must show you have earned; most judges won’t just sign that kind of order as a matter of course, and it’s largely their discretion to do so at all. Also understand that the felony and the expungement or restoration order don’t just automatically cancel out in the NICS system used for background checks. The fact you have a felony record will red-flag any 4473 form submitted by an FFL in your name. Theoretically, the idea is that the person processing the application on the NICS side looks through the full record and will find the restoration order and determine it quashes the felony conviction, but if they miss it you will be denied, and there’s a lengthy, time-consuming and expensive process to make sure your NICS records are being properly interpreted (and there’s no penalty to the FBI that runs NICS even if you prove you were falsely denied; you get a “sorry, we’ll try to do better next time” and they really won’t). One option to avoid these headaches, after you’re gotten your conviction taken care of, is to apply for a carry license in one of the 25 states where that license is an acceptable substitute for NICS checks. You go through a comprehensive background check one time (where you usually get the chance to clue the agency into the existence of the restoration order), you take the class, get fingerprinted, maybe pass a practical qualification (you’ll have to rent or borrow a suitable firearm), then once you have the permit, you still have to fill out the 4473 but the FFL doesn’t have to send it to NICS; they write your license number on the form as the proof of background check, you pay them and you have a gun.
