Sarah Okeson

NRA affiliate's challenge to strict New York handgun law could trigger a new Constitutional test

Federal judges have rejected most Second Amendment arguments of gun rights activists since a 2008 landmark case. Now the Supreme Court will hear a case that could invalidate state laws restricting who can be armed on our streets.

The New York State Rifle & Pistol Association, which is affiliated with the NRA, and two men who couldn't get gun permits in New York, sued. The judges Donald Trump put on the Supreme Court – Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh – are all endorsed by the National Rifle Association.

"I don't think people really understand the gravity of this case," said Kris Brown, president of the Brady Campaign to Prevent Gun Violence. "It would upend the very framework of the country's public safety laws."

New York is one of eight states that limit who can carry a gun in public. The others are California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

New York's law was passed in 1911 after the attempted assassination of a mayor and the murder of novelist David Graham Phillips.

New York's Sullivan Act, named after Tammany Hall politician Timothy Sullivan, was passed in 1911 after the attempted assassination of a mayor and the murder of novelist David Graham Phillips.

New York also has the second-lowest rate of deaths from gun violence in our nation. In 2019, about four people per 100,000 died from gun violence in New York. Alaska had the highest death rate.

"Gun violence has only worsened during the pandemic, and a ruling that opened the door to weakening our gun laws could make it even harder for cities and states to grapple with this public health crisis," said Eric Tirschwell. He is managing director of Everytown Law which represents survivors of gun violence in lawsuits against the gun industry and gun dealers.

People seeking licenses to carry concealed weapons in New York must show "a special need for self-protection." The licensing officer for Rensselaer County rejected attempts by Robert Nash and Brendan Koch, who are also plaintiffs in the case, to get gun permits.

Bars Carrying Handguns Outside the Home

The association asked the Supreme Court to decide whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside their homes for self-defense.

In 2008, the Supreme Court ruled that that the District of Columbia must issue security guard Dick Heller a license to allow him to keep his gun at home. The city had banned handguns.

The justices affirmed prohibiting possession of firearms by felons and the mentally ill and supported laws forbidding the carrying of firearms in like schools and government buildings.

Since the Heller case, federal and state courts have generally used a two-part test in more than 1,000 gun cases, looking at whether the activity is protected by the Second Amendment and then scrutinizing it. Judges have used this test to reject most of the gun rights claims.

Court Could Set New Constitutional Test

"From a constitutional law perspective, the big question is whether the justices will announce a new test for the constitutionality of gun laws going forward," said Duke law professor Joseph Blocher. "If the Supreme Court decides to replace that consensus with some other test, like one based solely on text, history, and tradition, then everything changes."

Paul Clement, the lead attorney in the case, was a clerk at the Supreme Court at the same time as Kavanaugh and testified at Kavanaugh's Senate confirmation hearing. Clement was solicitor general under former President George W. Bush and has argued more Supreme Court cases since 2000 than any other attorney.

Clement represented the NRA in a lawsuit by former janitor Otis McDonald against Chicago. That 2010 Supreme Court decision, which built on the Heller case, allowed people in Chicago to keep guns in their homes for self-defense, ending the city's handgun ban of nearly 30 years.

The association's attorneys argue that the Second Amendment also allows people to carry guns outside their homes for self-defense.

"The Revolutionary War was not won with muskets left at home; nor were the Minutemen saddled with the need to return home before achieving readiness for action," they wrote.

But even during the Wild West, frontier towns typically allowed only lawmen to carry guns in public.

A 2018 Stanford paper found that right-to-carry laws are associated with an increase of 13-15% higher violent crime rates a decade later.

Gangs have used right-to-carry laws by having gang members with clean criminal records get permits and then hold the guns after they are used. Darrail Smith of Wisconsin was stopped three times carrying guns away from crime scenes before he was charged with criminal conspiracy.

Estimated 100,000-plus guns a year belonging to permit holders are stolen.

How to order plans for an untraceable plastic gun

A Texas organization, Defense Distributed, has posted plans online to help anyone—including terrorists and criminals—make plastic guns that can't be traced.

The move came after a Trump-appointed federal Judge Ryan Nelson wrote an April decision for the three-judge panel of the Ninth Circuit Court of Appeals clearing the way for sales of the gun plans. Judge Robert Whaley dissented.

"Congress expressly precluded review of the relevant agency actions here," wrote Nelson, a longtime member of the Federalist Society.

Nelson ordered the dismissal of a lawsuit challenging Trump rules allowing plans for 3D-printed guns to be sold on the internet.

Buyers of the gun plans don't have to undergo background checks. The guns don't have serial numbers so they can't be traced.

Our nation already has the 32nd-highest death rate from gun violence in the world, almost four deaths per 100,000 people in 2019. The highest death rate in the United States is the District of Columbia with 18.5 deaths per 100,000.

If deaths due to armed conflict are excluded, the United States is worse than even nations like Lebanon and Afghanistan. The countries with higher gun death rates in the United States are countries troubled by gangs and drug trafficking like El Salvador and Guatemala.

President Joe Biden has said he could take executive action to limit the availability of 3D guns.

In June, Sen. Edward Markey (D-Mass.) and Sen. Robert Menendez (D-N.J.) introduced the 3D Printed Gun Safety Act which would prohibit distributing blueprints and instructions online for printing guns.

The State Department previously argued that the proliferation of 3D-printed guns could provide terrorist and criminal organizations with access to dangerous firearms. But under Trump, who had at least $16.3 million in help from the National Rifle Association in his re-election effort, the department flip-flopped.

Twenty-two states and the District of Columbia sued the Trump administration in January 2020 to block the plans from being posted online. They said 3D-printed guns would seriously compromise security in places like courthouses, schools, prisons, airports and stadiums that rely on standard metal detectors.

Arkansas native Cody Wilson, an English major who dropped out of law school, founded Defense Distributed. Wilson is also a registered sex offender because he pled guilty to injury to a child, a felony, in a case involving a 16-year-old girl. He can't buy or sell weapons at gun stores.

Defense Distributed contends that its blueprint files are a form of speech and efforts to block their release violate the First Amendment. Its supporters include the Reporters Committee for Freedom of the Press.

The district judge, Richard Jones, had ordered a preliminary injunction in the case, writing that "the proliferation of 3-D gun files on the internet likely renders ineffective arms embargoes, export controls, and other measures used to restrict the availability of uniquely dangerous weapons."

Trump-appointed election commission holdovers accused of delaying campaign finance cases

Holdover Trump election officials are trying to run out the clock on campaign finance cases, including a serious accusation that gun lovers secretly gave Republican leaders millions of dollars.

Charges against the National Rifle Association were leveled by the gun-control group founded by former U.S. Rep. Gabby Giffords, a gunshot victim from Arizona.

The Federal Election Commission generally has five years to act on campaign finance violations. The FEC spent much of the presidential election year of 2020 not even able to meet because it didn't have enough commissioners and has an enormous backlog of cases.

"The court should not allow the FEC to capitalize on its years-long failure to act on these complaints by simply waiting out the clock," wrote the attorneys for Giffords, a nonprofit that sued the FEC in 2019 in federal court.

Trump appointees voted to dismiss a case against former Trump fixer Michael Cohen over his $130,000 payment to porn star Stormy Daniels

Trump appointees Sean Cooksey and Trey Trainor voted to dismiss a case against former Trump fixer Michael Cohen over his $130,000 payment to porn star Stormy Daniels, citing the backlog of cases and the statute of limitations.

Trump appointee Allen Dickerson, Cooksey and Trainor cited the statute of limitations to dismiss a case about allegations filed in 2018 that the son of former Nevada Sen. Dean Heller, a Republican, was paid to do social media consulting for his father's 2016 campaign.

"We believe the Commission is better served prioritizing other investigations," they wrote.

FEC head Shana Broussard and a commissioner, Ellen Weintraub, both Democrats, also voted to dismiss the case against Heller.

Giffords, founded by former Congresswoman Gabby Giffords, who was shot and seriously injured in a 2011 assassination attempt, sued the FEC. She said the commission failed to act on allegations that the NRA coordinated millions of dollars in illegal campaign contributions to Trump and other candidates.

Giffords wants a federal judge to order the commission to act on complaints filed with the FEC. The lawsuit says the NRA used a network of shell corporations to illegally coordinate spending millions with the campaigns of Trump and at least six other federal candidates, including Sen. Josh Hawley (R-Mo.) and Sen. Tom Cotton (R-Ark.)

"The allegations … constitute a substantial and ongoing threat to the integrity of the election system," wrote the attorneys for Giffords.

Giffords said the scheme funneled millions of dollars in illegal, unreported and excessive in-kind contributions. Giffords accused the National Rifle Institute for Legislative Action and the NRA Political Victory Fund of spending more than $25 million during the 2016 election cycle supporting Trump and distributing and placing those ads with the same employees who were placing Trump's own ads.

Other candidates who benefited from NRA scheme in 2014 were:

  • Sen. Thom Tillis (R-N.C.) who defeated Democratic incumbent Kay Hagan
  • Sen. Cory Gardner (R-Co.) who beat Democratic incumbent Mark Udall
  • Cotton who ousted Democratic incumbent Mark Pryor in Arkansas

In 2016, Sen. Ron Johnson (R-Wis.) kept his seat with NRA help.

Hawley beat Democratic incumbent Claire McCaskill in 2018 in Missouri with assistance from the NRA.

Matt Rosendale challenged Democratic incumbent Jon Tester for the U.S. Senate in Montana in 2018 with NRA help but lost.

Rosendale was elected to the U.S. House in 2020.

FEC attorneys argued in 2020 that there had been no unreasonable delay in addressing the complaints and said that the commission was incapable of acting at that time because it didn't have enough commissioners.

In fiscal 2019, the commission started 31 investigations, at least twice as many as were opened in each of the previous six fiscal years.

Trump stuffed the commission with anti-regulation attorneys like Cooksey, previously Hawley's general counsel, and Trainor, who represented Trump's 2016 campaign.

The Supreme Court has permitted unlimited independent political spending by groups like the NRA on the theory that independent spending does not pose the same risk of corruption as direct contributions. Expenditures coordinated with a candidate are not considered independent.

Bradley Todd, one of the founders of a consulting firm named in the Giffords lawsuit, also worked as a consultant for Gardner, Cotton, Johnson and Hawley and as a media strategist for Tillis. Former NRA lobbyist Chris Cox, a friend of Todd's, is also named in the Giffords lawsuit.

The NRA accused Cox of fleecing more than $1 million from the organization from 2015 to 2019. He is cooperating with the investigation of the NRA by New York Attorney General Letitia James.

Biden-Buttigieg put the brakes on 'bomb trains'

President Joe Biden, known as "Amtrak Joe" for his train trips to Washington, D.C., from Delaware as a senator, could reverse the Team Trump approval of "bomb trains" carrying carrying liquefied natural gas.

The Trump rule financially benefits an energy company tied to a hedge fund that loaned millions to the Trump Organization and the Kushner Companies. New York prosecutors are examining those financial ties to Trump.

Transportation Secretary Pete Buttigieg said during his confirmation hearing that he planned to take a "hard look" at the rule.

Liquefied natural gas is even more volatile than Bakken crude oil carried on trains like the one that derailed and caught fire on July 6, 2013, in Lac-Mégantic, Quebec, killing 47 people. Most of the victims had to be identified with DNA samples and dental records. The bodies of five of the people were never recovered.

In April 2019, Trump called for federal rules to be rewritten so trains could carry liquefied natural gas. Drue Pearce, the political appointee who was the deputy administrator of the Pipeline and Hazardous Materials Safety Administration, helped shepherd the regulation through the agency.

The Biden administration asked a federal judge in February to put lawsuits challenging the rule on hold to give Biden regulators time to review Trump's rules that affect climate disruption. Biden issued an executive order the day after he was sworn in to review rules that may worsen greenhouse gas emissions.

Earthjustice, one of the environmental organizations involved in the lawsuits, said the rule could bring LNG railroad cars through virtually all major U.S. cities and that a disaster could destroy an entire city.

Vapor clouds from liquified natural gas that ignite can burn as hot as 2,426 degrees. Liquefied natural gas is odorless because ethyl mercaptan, the foul-smelling compound added to natural gas for residential use freezes above the boiling point for liquefied natural gas.

On Oct. 20, 1944, liquefied natural gas leaked from a storage tank at East Ohio Gas Co. in Cleveland and got into the sewer lines, causing explosions over a square mile. The explosions and fires spread through 20 blocks, killing 130 people and destroying 79 homes and two factories in a neighborhood of Slovenian immigrants.

The Trump regulation financially benefits New Fortress Energy, a publicly traded company founded by billionaire Wes Edens. Fortress Investment Group, a New York City hedge fund co-founded by Edens, was part of a deal to loan the Trump organization $130 million to help build the Trump International Hotel and Tower Chicago in 2005.

Manhattan District Attorney Cy Vance Jr. has subpoenaed documents from Fortress about the deal.

Trump couldn't pay the loan which ultimately grew to about $150 million, according to documents filed in the New York Supreme Court by New York Attorney General Letitia James. She is investigating possible fraud by the Trump Organization.

James said that Fortress forgave more than $100 million of the loan, money that may have been taxable.

Fortress also loaned $57 million in October 2017 to a Jersey City, N.J., real estate project owned by Kushner Companies. Trump's son-in-law, Jared Kushner, transferred his stake in the project to a family trust.

SoftBank Group, a Japanese firm, bought Fortress Investment Group in 2017.

How Biden and the Democratic Congress can start undoing Trumpism

Our nation's new Congress could use a once-obscure law to try to roll back some of the worst Trump actions after Joe Biden is sworn in.

The Congressional Review Act, signed in 1996 by President Bill Clinton, requires a simple majority of the House and Senate and the president's approval. Rules that were published after Aug. 10 could be axed by Congress.

"It's the quickest way to get rid of policies that will cause significan harms to the health of Americans and to the quality of our environment," said Richard Revesz. He directs the Institute for Policy Integrity at the New York University School of Law.

Just since Election Day 2020, Team Trump has completed at least 44 rules. They include:

  • Keeping the 2012 standards for microscopic soot that are linked to an estimated 45,000 deaths. The rule overrides advice from EPA scientists. Higher pollution appears to increase COVID-19 deaths.
  • Relaxing environmental rules for exporting liquefied natural gas. New Fortress Energy, a publicly traded company founded by billionaire Wes Edens, wants to build a terminal in Gibbstown, N.J. to ship liquefied natural gas to the Caribbean. Edens co-founded a New York City hedge fund that was part of a deal to loan the Trump Organization $130 million to help build the Trump International Hotel and Tower Chicago in 2005.

The Trump administration executed 10 federal prisoners in 2020, the most federal executions in a single year since 1896 when Grover Cleveland was president.

The act typically is used early in a president's first term when his party also controls both houses of Congress. President Barack Obama avoided using the Congressional Review Act, preferring to use regular rulemaking.

But before Trump took office, his aides, including Andrew Bremberg, Marc Short and Rick Dearborn, put together a spreadsheet of Obama rules they could undo. The 14 rules they succeeded in erasing early in 2017 included preventing coal companies from polluting streams by dumping waste in them and a rule meant to prevent people with mental health problems from buying guns.

Radical Republicans also used the rule in late 2017 and early 2018 to repeal two rules from the Consumer Financial Protection Bureau, the independent agency that Team Trump neutered.

Trump's EPA says toxic ash ponds can stay open into 2028

More than 50 of the oldest and dirtiest coal-fired electric power plants in America are asking Trump's EPA for more time to clean up their unsafe coal ash ponds. Some want eight more years.

David Tudor, the CEO and general manager of Associated Electric Cooperative Inc. in Springfield, Mo.,—the owner of two of the worst plants—told the EPA it was the company's "intent to complete these projects as expeditiously as possible while maintaining the reliability of the power system."

An estimated 523 leaking, unstable or dangerously placed coal ash ponds, including the Missouri cooperative's ponds at Thomas Hill and New Madrid, were scheduled to stop receiving toxic coal waste on Oct. 31. But the Trump EPA pushed that back to April 11, 2021, and told plants they could ask for extensions until 2023, 2024 and even 2028.

[caption id="attachment_21685" align="alignright" width="634"] 'Ashtracker' satellite view shows pollution sources at the New Madrid, Mo., power plant on the west bank of the Mississippi River. (Environmental Energy Project)[/caption]

Tudor met with Trump's first EPA administrator, Scott Pruitt, in April 2017 when Pruitt and other EPA officials visited the Thomas Hill plant near Clifton Hill, Mo. Sen. Roy Blunt (R-Mo.) and then Missouri Attorney General Josh Hawley, now also a Missouri senator, toured the plant with Pruitt.

Groundwater monitoring has found unsafe levels of sulfate, lithium, cobalt and arsenic at Thomas Hill. Unsafe levels of boron, cobalt, molybdenum, lithium and arsenic are in the groundwater at the New Madrid plant along the banks of the Mississippi River near New Madrid, Mo.

Democratic senators asked for an ethics investigation of Elizabeth "Tate" Bennett, then an EPA associate administrator, after the meeting at Thomas Hill. Bennett previously was a lobbyist for the National Rural Electric Cooperative Association. She currently works at Trump's White House as an agriculture adviser.

Andrew Wheeler, the current EPA administrator and former coal company lobbyist, used decisions in two federal court cases to rewrite federal regulations to benefit utilities. Power plants can now ask for more time to close unlined, leaking coal ash ponds if they claim they can't develop more storage space or if they have shut down a coal-fired boiler.

[caption id="attachment_21684" align="alignright" width="640"] Source: Duke University[/caption]

Coal-burning power plants produce about 100 million tons of coal ash a year. Arsenic, lead and mercury lace the ash. Companies mixed the ash with water and stored it in unlined pits called coal ash ponds, often near lakes or rivers.

A coal ash rule written under former President Barack Obama allowed power companies to put coal ash in unlined ponds indefinitely until their operators determined they were leaking. Federal judges threw that out in a 2018 decision, Utility Solid Waste Activities Group v. EPA.

The Trump EPA estimated that the enforcement delays would save utilities about $26.1 million a year. But the EPA didn't look at the cost of environmental damage or health risks associated with delays in cleaning up the coal ash ponds.

[action]

ACTION BOX/What You Can Do About It

Tell EPA Administrator Andrew Wheeler your thoughts on regulating coal ash. Call Wheeler at 202-564-4700 or write to him at EPA Headquarters / William Jefferson Clinton Building / 1200 Pennsylvania Ave., NW / Mail Code: 1101A / Washington, D.C. 20460.

[/action]

The Labadie Environmental Organization, based in Labadie, Mo., and eight other environmental organizations sued Wheeler and the EPA in federal court over the new rule.

Isabel Carey and Jason Schwartz at the Institute for Policy Integrity said the EPA's failure to consider those costs meant the rule violates the Administrative Procedure Act, the 1946 law signed by President Harry S Truman that governs how federal agencies write new rules.

About 41% of power plants with coal ash dumps is in the Midwest. Another third is in the southeast, and about 10% is in the Southwest.

Texas leads fight to end protections for Native American children

The top legal officers of Texas, Louisiana and Indiana—all Republicans—are trying to end legal protections that make it more difficult for child welfare agencies to tear apart Native American families.

Texas Attorney General Ken Paxton argued that the Indian Child Welfare Act violates the equal protection guarantee of the Fifth Amendment because children are put into one of two child welfare systems based on whether they are Native American.

"The ICWA unlawfully attempts to coerce state agencies and courts to carry out an unconstitutional and illegal federal policy of deciding custody based on race," Paxton said.

Congress set up this dual system in 1978 after decades of native American families being destroyed by child welfare agencies. Twenty-five percent to 35% of all Native American children had been separated from their families and placed in adoptive homes, foster care or institutions.

Native American children are still more likely to be removed from their families by state child welfare systems.

The act, signed by President Jimmy Carter, requires that state agencies use "active efforts" to try to prevent the breakup of Native American families, notify people of pending proceedings and their right to intervene and keep records and make them available for inspection.

When a Native American child is removed, preference in placing the child must be given to the child's extended family, then to the child's tribe and then finally to other Native American tribes.

Chad and Jennifer Brackeen, a Fort Worth couple who have adopted a Native American boy and are trying to adopt his half-sister, are also plaintiffs in the suit. Chad Brackeen said in a court hearing that he had concerns about the Native American relative who also wanted to adopt the baby girl, including her smaller house.

"I don't know what that looks like—if she needs space, if she [the child] needs privacy," he said. "I'm a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up."

In October 2018, federal judge Reed O'Connor ruled the act was unconstitutional, but that decision was reversed by a panel of three Fifth Circuit judges. Paxton asked for all the judges of the Fifth Circuit to hear the case; oral arguments were held in January. Even Team Trump, which has presided over losing track of the migrant parents of 545 children, supports the Indian Child Welfare Act, writing that Native American children were removed by "abusive practices" by state and private agencies.

Psychiatrist Joseph Westermeyer told Congress before the act was passed that Native Americans he treated who had been removed from their families often did reasonably well in early childhood. But as teenagers, they frequently tried to kill themselves, used drugs and ran away.

"It's been my own experience that the vast majority of social workers called to assist Indian families when there is a crisis or distress, do a very poor job," Westermeyer said. "They do not work to keep the family intact."

The act widely is considered a"gold standard" in child welfare policy and provides rights to Native American families that other families in our country don't have such as requiring expert witness testimony before a judge approves placing a child in foster care.

Even with the extra protections, Native American children are still more likely to be removed from their families by state child welfare systems.

Our nation's Children's Bureau founded more than a century ago under President William Howard Taft, spends about $9.8 billion a year to support and monitor child welfare agencies.

All that money hasn't done much to improve justice for children and families in the child welfare system, said law professor Vivek Sankaran.

More than 250,000 children were removed from their parents in fiscal 2019, many who may have never needed to be separated from their parents. Less than half of children are reunified with their parents, and judges are terminating parental rights at a higher rate.

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