Speaker 1: Hello again, everyone. Welcome to Washington Gun Law TV. I am Washington Gun Law President William Kirk. Thanks for joining us. Hey, sometimes the world just doesn't throw you a lot of good material to work with on your channel, and you got to get a little creative, okay? And sometimes when you're a geek like me, what you'll do is you'll just start geeking out and going down rabbit holes. And the rabbit hole that I've been going down lately is I have been reading all of the unresolved petitions to certiorari to the United States Supreme Court to see if there's any unturned stones that we have not talked about. Well, lo and behold, found this one just the other day, which I think is a huge issue. It has to deal with how zoning can be basically used to just alleviate Second Amendment rights altogether. And then I stumbled upon yet again, another one, this case right here, which deals with a really, really big issue that we've actually talked about. And it's been a point of frustration for many of us, myself included. And now the Supreme Court has a chance to resolve this issue once and for all. So today, let's geek out on the petition for a little bit. And let's talk about how come no one is talking about this potential Supreme Court case. Okay. Hey, before we get going too far down the road, we're going down. I want to talk to you about something that kind of bothers me. We don't talk about it much on this channel, but it's the constant attack on masculinity. It's like any dude who just wants to act like a dude suddenly is a toxic individual. He's a misogynist. He's a homophobe. And how we glorify the feminization of men, and yet we vilify masculine men. And why is that? Well, one of the theories is, and it's a pretty plausible theory is that, well, feminine men are much easier to control. Then there's a lot of people who believe that, well, actually with all the junk food and other processed foods we're eating, men's testosterone levels are naturally just being taken down. And the truth is, is if you take a look at the medical data, yeah, men's testosterone levels over the last 20 to 25 years have been decreasing. Why is that? Well, we're not going to get into any of that today, but I will tell you that if you're anywhere close to my age, then you should be talking to your doctor all the time about your current testosterone level, guys. And if you're not, well, it's time to start doing that. Well, listen, you and your doctor are going to have a lot of options from prescription medications, injections, creams, but maybe you want to do it a more natural, a healthier way. Well, consider what the folks over at Black Forest Supplements are doing with their Terkesterone with Tonkat Ali. Now, I know it sounds weird, but listen to me, because the benefits have shown that it will increase testosterone, which helps increase with strength. It helps increase lean muscle mass. It improves recovery if you're into working out, helps decrease stress. We can all need some help with that. And yeah, it will help with fat loss and weight control. Listen, guys, it's okay to be a guy. If you want to get some extra help, if you're looking for a natural way to give you just that little extra boost, check out what Black Forest Supplements is doing right now with their Terkesterone with Tonkat Ali. And here's the best part, because if you go to BlackForestSupplements.com forward slash gun right now, you are going to receive a third supplement free if you go ahead and buy two. That offer is good only for the next 48 hours, but visit my good friends today at BlackForestSupplements.com forward slash gun. Okay, America, the case we are talking about today is the case of Gray v. Jennings. It is an appeal to the United States Supreme Court that comes out of the Third Circuit Court of Appeals. This is a challenge by multiple plaintiffs, multiple lawsuits that all got consolidated into Delaware's assault weapon ban and high capacity magazine ban. Now, the issue here is unique. The issue is not about whether or not Delaware's ban is constitutional or not, because we all know it's not. Try to convince that to the Third Circuit, however. The issue is this, is what is the correct analysis when we're talking about injunctive relief? That is, when a party sues on an unconstitutional gun law and asks for either temporary or permanent injunction pending the outcome of the case, what really is the test? Now, as some of you probably know, because you geek out on this channel all the time, and I thank you for that, that any time we are asking for any type of an injunctive relief, to hit a pause button on the implementation or enactment of the law, we have to show essentially two things. Number one, we have to show that we are suffering irreparable harm, harm that cannot be redressed by any method other than stopping the enforcement of the law. And then we also have to show that we have a likelihood of prevailing on the merits of the argument. If we can show both of those, we get injunctive relief. If we fail to show either one of them, we don't get injunctive relief. What the courts have been doing, though, okay, is that unbeknownst to many of us, there is case law out there, a litany of case law, that says if the law violates a person's First Amendment right, their First Amendment rights, it is presumed to A, be unconstitutional, and it is also per se irreparable harm, okay? So any challenge to a First Amendment violation is always going to be deemed per se, on its face, irreparable harm, which means it needs to be redressed immediately. However, when it comes to the Second Amendment rights, that's not necessarily the case. It depends on which circuit you're in. And guess what? If you're in the Third Circuit, the answer is no, just because it potentially violates your Second Amendment rights does not necessarily mean you are suffering irreparable harm. Why is it that we need injunctive relief when our constitutional rights are being violated? Well, as the plaintiffs correctly point out here, in a suit for the violation of one of these fundamental constitutional rights, the remedy at law, money damages, is wholly inadequate due to the intangible nature of the harm that has been suffered. As this court has stated in the context of the freedom of speech, the loss of First Amendment even minimal periods of time unquestionably constitutes irreparable injury. But you see, that's not the case when it comes to Second Amendment rights, which is why we begin to see justices call the Second Amendment right the disfavored right, or essentially the redheaded stepchild of the Bill of Rights. And as the plaintiffs also point out, the panel below acknowledge this is the rule that applies under the First Amendment in step with every other federal court of appeals, but it's somehow concluded that it does not apply to the Second Amendment. It accordingly declined to enjoin Delaware's bans on common firearms and magazines, which the state dubs assault weapons and large capacity magazines, without even inquiring into whether those bans are likely unconstitutional based on petitioner's failure to establish an irreparable harm other than the loss of their Second Amendment rights. And as we already stated, and the plaintiffs clearly point out, and let us remember that Justice Thomas has been very cautionary about this, and by treating violations of the First Amendment as inherently irreparable, but not violations of the Second, the decision below demotes the right to keep and bear arms to a second-class right subject to an entirely different body of rules than the other Bill of Rights guarantees. Now, let us not forget that the state of Delaware, in finding actually that the Second Amendment did apply. So they didn't pull a Seventh Circuit here where they said, well, the Second Amendment doesn't even protect these firearms. No, they were at least mildly intellectually dishonest. But then they started carving out its own new rules of laws, too, which included the following. It answered that question in the affirmative, concluding that the ban firearms and magazines implicate dramatic technological changes and unprecedented societal concerns due to the purported rise in the yearly rate of public mass shootings over the past four decades and the features that supposedly render the banned arms exceptionally dangerous. It further reasoned that Delaware's ban was relevantly similar to a cobbled-together collection of historical laws, including mid-19th-century laws that restricted the carry but not the possession of bowie knives and mid-20th-century restrictions on fully automatic machine guns. But hey, you know, it's not like Rahimi's gonna come back and bite us in the ass, right? And then they also point out, it also concluded that Petitioner failed to show irreparable harm, rejecting their argument that the deprivation of Second Amendment rights necessarily constitutes an irreparable injury. You see, and what the Third Circuit adopted as a rule here basically says that a court could find that, hey, you know what? Yeah, there is a violation of Second Amendment rights occurring by the implementation of this law. But I'm not gonna stop it right now because the rule of law doesn't require me to do so. Au contraire, as the plaintiffs point out. The panel also recognized that the Third Circuit had indeed deemed constitutional harms irreparable in previous cases, but it insisted that those precedents all fell within the exception to our rule we presume that First Amendment harms are irreparable. So we're going to assume that First Amendment violations are irreparable, which they are, but Second Amendment violations are not. Hmm. Now, the plaintiffs also point out that the Seventh and Ninth Circuit has actually reached a different conclusion and also point out that, you know, if we're going to talk about some of the more pro-Two Amendment circuits in our Court of Appeals, yeah, neither the Seventh nor the Ninth Circuit is going to make that short list. And as the plaintiffs point out, the court established in McDonald, reaffirmed in Bruin, that the Second Amendment may not be treated as a second-class right subject to an entirely different body of rules than the other Bill of Rights guarantees. The decision below explicitly flouts that principle, refusing to give Second Amendment challenges the benefit of the same principles that unquestionably apply under the First Amendment. This court should grant review and repudiate the latest attempt to demote the Second Amendment to second-class status. And of course, one of the things that the Third Circuit said is, hey, listen, okay, when you squelch out a person's right to free speech, there really is no redress. If you ban a certain type of firearms, it doesn't mean that they can't keep and bear some other type of arm in self-defense. But the plaintiffs wisely point out, neither the plaintiffs challenging a law that likely violates the Second Amendment nor a court deciding whether to enjoin it has any way of knowing when plaintiffs will be called upon to use their weapons to defend themselves. But such an occasion could arise at any time, including during the pendency of the suit. And if and when it does arise, it necessitates the most acutely time-sensitive activity possible, immediate armed self-defense of one's home and family. And of course, if the court is allowed to say, well, First Amendment violations, they're pretty serious. Second Amendment violations, you know, when we weigh those out, that's not as serious. Well, that's just another balancing test that, of course, the Bruin case told us to get rid of. And so they point out, indeed, this final point illustrates perhaps the most pernicious consequences of the panel's decision. A return to the subjective balancing approach applied by the lower courts for over a decade after Heller until it was finally interred by Bruin. But most importantly, and this is why this petition is so huge, is the following. This case also provides the court with an opportunity to address a broader issue in constitutional litigation, how courts should analyze the irreparable harm injunction factor in constitutional challenges more generally. So listen, this is a huge, huge case because the Supreme Court could weigh in and this could significantly and forever alter how we deal with and the results of requests for injunctive relief as it relates to gun control legislation. Again, this case has massive, massive potential. Okay, the case, once again, is Gray v. Jennings. We're going to go ahead and link it up down below so that you can geek out on the petition for yourself. Maybe you got more questions about this or something else related to what's left of our Second Amendment rights. You guys should know how to get a hold of Washington gun law by now, but if you don't, that's okay. That information is down there in the description box. If you got an idea for a video we should be doing around here, go ahead and click on that link right there and let us know. It's probably better than any idea we're going to come up with. If you just want to subscribe to our monthly newsletter, you can do that by checking out all the information below in the description box. And then finally and most importantly, let's everyone remember that part of being the lawful and responsible gun owner, like we talk about all the time here, is to know what the law is in every situation, how it applies to you in any instance that you may find yourself. Until next time, thanks for watching. Stay safe. Transcribed by https://otter.ai