Second Circuit Strikes Down NY 'Vampire Rule'; VA Prosecutors Vow Not to Enforce AR-15 Ban

Added: 2026-05-23

[00:00:01]The second circuit strikes down New York's so-called vampire rule. Plus, several Virginia prosecutors start promising not to enforce the state's new AR-15 ban. All this and more on the news update.

[00:00:21]>> All right, ladies and gentlemen, welcome back to the news update. I'm contributing writer Jake Fogelman, joined as always by Reload founder Steve Gatowski.

[00:00:29]reload.com, of course, is where you can head on over today to sign up for our free weekly newsletter. It'll keep you up to date on all things happening in the world of gun politics and policy.

[00:00:38]Kick things off for us this week, uh, we had yet another appeals court ruling, uh, striking down what has been probably the most consistently struck down gun control law in the wake of the 2022 Bruin decision. There's with one obvious, uh, notable exception. Um, this case is the uh second circuit court of appeals striking down New York's so-called vampire rule, which sets the default for licensed gun carriers to where that they cannot carry on publicly accessible private property like a a restaurant or a store without the uh owner of that establishment's affirmative consent uh which essentially makes the bulk of the entire state off limits to licensed carry.

[00:01:19]>> Yeah. And uh it you know it's what I think people call it the vampire rule because vampires have to be invited in in order to enter your home right that's what critics will call this this rule uh you know much like sinners the great movie that came out recently uh but anyway uh other the other name for it is default swap because obviously in most jurisdictions uh for most of history you could carry it on publicly accessible private property like restaurants or stores unless there was a sign that notified you know that said you can't and so this swaps that default. So some people call this a default swap but most courts have called it unconstitutional right and we have another one here doing that even uh in a more liberal district like the second circuit. Um, and I think it's kind of a writing on the wall situation, right? Uh, these are, this is the most commonly struck down uh, post Breuin law, the broom response law, part of these packages that a number of of the states that were affected by Bruins's carry uh, decision passed a bunch of new gun carry restrictions. They basically said, "Well, okay, if we have to issue permits now, we're going to go ahead and restrict where those permits are useful." Um, and this was the biggest swing in that package of new sensitive places, restrictions, uh, you know, gun-free zones essentially. Um, and this is, you know, easily the most expansive with the goal being to basically make gun carry unlawful everywhere, even with a permit. Uh, to kind of try and get to the same back to the same or similar status quo from before where, you know, places like New York, it was, especially in New York City, it was almost impossible to actually legally carry a gun as a civilian. Um, and so this this was meant to have that effect too with the governor of New York famously saying uh Kathle Hokll that uh when asked where people would be able to carry legally under the you know the broom response bill that they had passed uh she said some streets. Uh so you know that was the straightforward and stated goal of uh the politicians who passed these sorts of laws. But they've had a lot of trouble in court uh up to this point where a lot of courts and including this second circuit court have been willing to uh accept the other sensitive places restrictions. This this case in particular, this was a bit of a mixed ruling because they struck down the vampire rule, but they also upheld uh the public park uh gun ban. So, um, just to give you a quote from the ruling, this is, uh, Judge Joseph Biano, who said, quote, "We we conclude that private property provisions as applied to private property open to the public is unconstitutional because the state did not carry its burden of demonstrating that the restriction fa falls within our nation's historical tradition of gun regulations as required under the framework set forth in New York State Rifle and Pistol Association be Bruin." Uh but then he followed up and said this is a Trump appointee by the I think this was a unan um I believe they were unanimous on affirming the lower court which which held the same thing essentially that the vampire rule is unconstitutional but the park ban is uh is constitutional and Bianc who was a a Trump appointee wrote uh in this decision quote we conclude that the park the public parks provision survives plaintiffs face facial challenge because the state has carried its burden of showing that regulation is consistent with our nation's historical tradition of banning gun possession in urban part public parks. Um so and that was another key aspect of this ruling right was the distinction between a facial challenge and an as applied challenge. Um so essentially they ruled that the vampire rule or the default swap is unconstitutional um on its face. Uh but the public park gun ban uh there at least some historical tradition of that um mostly from I believe like the reconstruction period the later um 19th century uh but that there are at least conceivable scenarios where the ban is constitutional. So, um, you know, that has been a common outcome in these sorts of cases across the districts where these, you know, we talk about this a lot on the show, right? the sort of issue that gun rights activists face with these sorts of state these restrictive state laws because they tend to be passed in deep blue states and more liberal areas of the country which tend to be overseen by the more liberal circuits and those circuits tend to give a much greater breath to the uh much greater leeway to the government's ability to regulate firearms under the second amendment And so a lot of these decisions have been in this vein of okay you can do most of these sensitive places restrictions but you can't do the default swap you can't do the vampire rule. There is, as you mentioned, there's been one major exception to this, uh, which came out of the Ninth Circuit and dealt with Hawaii's, uh, vampire rule or default swap.

[00:07:07]uh because the Hawaii's version gave a little bit more um flexibility in how a an um essentially gave a little more flexibility in how a property owner could inform uh their guests about their rules for gun carry. Uh whereas like California had a very specific policy set out where it had to be a certain kind of sign, certain size and all this and and the Ninth Circuit said that was that was too far. But the the Hawaii version was okay. And that's they're really the only court in the country that has come to that conclusion, appeals court. And so that was that's the case that's been pending before the Supreme Court, which by the way did not issue any uh rulings in their Second Amendment cases this week. Um, I think we I think there's one more. I don't think there's even an opinion release next week. So, uh, you have to wait till till June, which is usually when you get the bigger cases, more controversial cases come out anyway. But, um, before we get a decision in that Hawaii case, which is called Wolford, uh, which we've we've talked about a lot and had the the plaintiff's lawyer on the show, uh, to discuss oral arguments in that case as well. You can go back and listen to that if you want. That u, that's Alan Beck.

[00:08:28]um he uh has already argued that case and so we're going to get a ruling from the Supreme Court soon here, but it seems like perhaps the second circuit maybe is sees the writing on the wall and um that might play into why this decision came down the way it did.

[00:08:46]>> Yeah, I I think it's notable that it they see the writing on the wall because this is now the second circuit to strike down the vampire rule as we're waiting for the Supreme Court. Usually, you know, when lower courts are hearing an issue that's relevantly similar to something the Supreme Court's about to decide, they'll say, "Why don't we wait and see what the Supreme Court's going to do?" But I think it's notable that the same day Wolford had oral arguments, the Fourth Circuit struck down Maryland's vampire rule. And now the Second Circuit, while we're waiting for a decision, has also struck down New York's vampire rule. Certainly seems like these lower courts are saying we this is unconstitutional. The Supreme Court is going to find it unconstitutional, so we don't feel bad about saying this is unconstitutional.

[00:09:22]>> Yeah. And you know, it also sets up the kind of uh sort of layup that the Supreme Court likes in Second Amendment cases where they're they're going after an outlier. Um and so that that adds even more reason to think they're going to strike down Hawaii's vampire rule. Uh because they that was one of the big things about Inheler and Bruin was this idea of these are not very common laws anyway. Uh they're outliers. And so um you know it won't cause that much disruption to to sort of yank them in this way. And so I think that gives you another sort of structural setup for why this there's already pretty obvious from oral arguments that this the court is highly skeptical of the vampire rule concept to begin with. But, um, yeah, here's here's further reason to think they probably and it could be a pretty lopsided ruling as well with a couple of the the more liberal justices joining suit as you see their the more liberal judges in these lower courts doing.

[00:10:27]>> Yeah. But like I said, we will uh wait and see. Hope, like I said, sometime next month is when we're anticipating a final ruling on whether or not these vampire rules can stand. But uh we anticipate that the the outcome will be no.

[00:10:40]Yeah, most likely. But uh you know, the other interesting thing here is you're still seeing the the these lower courts uphold the the uh less expensive but still pretty broad uh gun-free zone uh areas that that states have created. In this in this case, it's public parks. um you know, and they they're pretty, including in this case, they're they're pretty um generous with the time frame they're allowing for that historical uh inquiry that's required under Bruin, right? Like a lot of the analogies they use in these cases, including in this one, uh come from later. They don't come from the founding period. And uh this is something that the Supreme Court has not you know this this is happening I think at least in part because the Supreme Court hasn't actually uh clarified what the bounds of the historical test are which is something even I think you've seen Amy Coney Barrett has explicitly discussed this in uh concurrence I believe it was in in Raheem where she's like you know are we going to decide this question of the appropriate uh you know the they've sort of talked about how the founding era is the best period to look at, but they haven't yet uh discussed what the cuto off should be. You know, when when do these when do the more modern laws stop mattering for the historical test? Um and uh so a lot of these a lot of these cases a lot of these decisions that have upheld uh sensitive places restrictions like very broad sensitive places restrictions have relied on later gun laws uh throughout the country and uh so that makes them potentially vulnerable to a challenge. But this is there's an area where the Supreme Court has not, you know, they they're doing the vampire rule, but they're not doing anything else on uh sensitive places restrictions. They said in Bruin that some sensitive places restrictions are are valid. um without giving a lot of guidance as to why they picked the ones they picked and uh you know frankly creating a lot of uh confusion on that front because of they didn't do their own test on their the sensitive places that they you know sort of assert are in the historical tradition and so uh that's caused I think a lot of lower courts to take to justify taking a pretty expansive view of what historical traditions apply to these sensitive places restrictions. So that's an unresolved issue. Even when they release their opinion in Wolfford, you're still going to have a lot of other types of sensitive places restrictions that um uh where the legal fight is is currently going unresolved.

[00:13:34]Maybe they'll take up the a case in uh the next term that will give some more clarity on that front. But they got, you know, they're taking up the outlier, easier, lower hanging fruit case first.

[00:13:46]Certainly, and that's the one we're we're likely to see here uh next month.

[00:13:52]>> Yeah, absolutely. Stepping away from the courts though briefly, some interesting developments on the political front that you identified uh as it relates to guns and gun politics. Um as listeners lot regular listeners and regular readers may have noticed we've hasn't been a ton of stories about you know pollsters as you know their want to do when they cover administrations they like to cover approval on various you know how are the administration's doing on certain policy fields and obviously there's been a lot of attention on economic stuff foreign policy stuff with this administration there's plenty to talk about there but they've been relatively quiet on guns uh as you identified and it just doesn't seem seem like it's uh a big political issue at the moment.

[00:14:35]>> Yeah. Well, we do have a couple we have a couple polls, right, that give us some insight into what uh Americans and voters are thinking about guns that they're at least what the most important issues are and guns do get asked in there. And we had three three polls um from the last week from major pollsters.

[00:14:56]I think it was Quinnipiac, um, Echelon in Insights, and, uh, the economist Yuggov. Uh, we've got so three three major pollsters, and they all asked, you know, most what's your most important issue? And they included guns or some variation of gun uh, either gun violence or gun control or gun rights in that question. And they all came they all had the same essential takeaway from that which is uh people put guns at literally the bottom of the list. Um now you know to be fair this is uh you know we've talked about this in the past. This this is pretty common. Um now it's at the bottom of the list of the of the issues that get asked about to be to be fair. Right. So, Quinnipic for instance, um, they only asked about what, one, two, three, four, five, six, seven, 8, 9, 10 issues. So it's still in theory it's still a top 10 issue but only 1% of people or sorry in in Quinnipak it was 2% of people said uh and they they use the term gun violence um was their top issue whereas in Echelon it was gun rights 1% their top issue which was literally the last in Quinnipic and the Yuggov polls was tied for second to last. Um, but I guess my point here is like it still ranks in that top top tier of question of issues that even get asked about in these polls because they don't ask about every sing every time they don't ask about every issue. Sometimes they'll ask they'll do like an issues poll and it'll ask about 20 issues and that's where you'll see guns tend to roam around the middle of the pack most of the time. Um and in these sort of shorter issue polls, guns tend to be at the bottom of the pack um most of the time. And right now that's where they are, right? They're they're they're way way down the totem pole to the point where uh and I think they've been there for for a while. You know, guns have not been a top issue political issue in America for a good while now. We we wrote about this during the 2024 election. wasn't a top issue then in most of the polling. It wasn't a focus of uh for instance the Trump campaign.

[00:17:16]Donald Trump himself did not talk about it much at all. He's really maintained that you know his his administration is actually uh you know as we covered I think they're doing more and more stuff that uh gun rights activists have been very happy with. The ATF uh rule package for the most part has made most gun rights activists happy. Um, a lot of the the action coming out of the the Department of Justice's second amendment found um not second amendment foundation, second amendment section of the Civil Rights Division is something that's gotten a lot of gun rights activists at least um excited and u you know now we've as we've talked about this is a lot of personnel driven stuff. you know, Robert Lighter being the chief counsel who we just had on on the podcast last week and actually we're going to talk a little bit about some news he made on our podcast in a moment. But, um, you know, he he's driving what's going on as far as rulemaking at the ATF. Uh, Har Dylan's, former gun rights lawyer, was part of her background, um, is driving what's going on at the Civil Rights Division. uh where at the same time you've seen the other administration officials do things that that upset a lot of gun rights activists like for instance US attorney Janine Piro in DC and some of the comments she's made and some of the prosecutions she's uh undertaken surrounding guns and some of the defenses the the other members of the Department of Justice have made in court like in the knife rights case where the DOJ argued they could ban all knives without even uh implicating the Second Amendment right there. So, you know, it's a mixed bag, right? The lately it's been a lot more action from the more proun officials in the Trump administration. But, um, Trump himself doesn't talk about guns. The last time he did was was negative, right? It was the Alex Prey uh shooting by uh immigration agents in Minneapolis and his comments were that it was nefarious that Freddy was carrying an extra magazine which by the way we still don't actually know that he was doing that.

[00:19:18]The only picture we've ever gotten uh any information concrete information we've ever gotten about Freddy's gun was uh the one picture they released which showed a single magazine and an empty gun uh implying that maybe he wasn't carrying an extra magazine. No one has ever been able to confirm details on that uh to this point and and we haven't had any updates on that investigation if it whatever's going on with that investigation. But regardless point is Trump's not out there focused on this issue by any means and it's it's a pretty low salience issue at the moment. Um you can see that I think reflected not just in what people are telling pollsters but the polling itself. Um there have been according to the New York Times tracker, you know, they have an aggregator. There's there's three or four aggregators out there that are pretty good quality, right? Like the Real Clear Politics, I think, uh um 50 plus one is another good one.

[00:20:17]There there's there's several of them.

[00:20:19]Um, and what what but if you look at the New York Times tracker, you'll find that there have been 240 polls in 2026 that have asked about Donald Trump's approval rating and I went through every single one of those polls. Uh, and it and it turns out only only one of them actually asked about actually asked people what they thought of President Trump's handling of uh guns in 2026.

[00:20:59]And I think that that alone, you know, regardless of I'll give you the details of what it said, but that alone is is pretty remarkable that that the only um time that this was even asked about was and it it's only been asked about once and the only time it happened was way back in January. Uh there was a Yugub survey of 200 uh 2,26 uh 2,226 adults from January 16th through the 22nd. Uh and it found Trump is uh was 12 points underwater uh on his handling of guns, which put the issue about middle of the pack for him. He was only he was only positive uh meaning more people approved than disapproved of his handling of an issue on border security at the time. And I believe if you look at any of these aggregators uh his approval rating's only gone down since that point. um some of the polling now has him at uh the lowest point of either one of his presidencies overall.

[00:21:59]And so it's likely his approval on guns has also gone down. Uh but we don't know for sure because nobody's even asking about it because the issue has become uh so low salience at the moment that pollsters don't even bother asking people what they think of how Trump is handling this story. And I mean, Yuggov has done, I don't know, a dozen surveys or more. I mean, Yuggov does a bunch of surveys for a bunch of different outlets and ask lots of different questions. Um, and they just don't ask about gun policy. Uh, the only insight in terms of so and and like the only I'll try to give some insight here as to why I think this is happening because the polling doesn't ask, right? It doesn't it doesn't ask people why you know, why do you value this issue over that issue? Obvious, you know, some of this stuff is is what you would expect, right? In terms of how people value issues most of the time, the economy and jobs and inflation and prices are uh especially the last half decade or so, right? That's those have been the top issues and those remain the top issues. um state of democracy, healthc care are also among some of the top issues uh in these three recent polls. But you know pretty consistently people are mostly focused on their economic situation. I think that is almost always the case. You know that's the economy is is very commonly a top issue for people across presidencies and across decades.

[00:23:37]Um so but I think the reason guns are less salient at the moment uh is just the lack uh there's two reasons right there there's one which is the falling murder rate. You know murder has been declining for several years now at at a um incredibly fast pace to the point where we are now seeing historic lows in murder across the United States. Uh, this is actually something we should probably do another podcast on soon, but that probably has some effect on people's um interest in gun policy, right? Guns are the most common type of weapon used in in murder. And so, you know, they get focused on when there's uh people perceive there being a lot of crime and and a lot of murder. uh the fact that now you know people's perception don't always match up with how crime is actually happening. There's people uh often perceive there being a lot more crime going on than there is or think that murder is getting worse when it's actually getting better. Uh but regardless, I think one potential reason um for this drop in salience is just there's less gun involved murder and crime happening right now. And uh that's been true for the last couple of years.

[00:25:06]Like the problem is going down, not up.

[00:25:09]And so uh that probably leads to people not paying so much attention to it anymore. And I think perhaps even more so uh That effect is coming from the fact that we've had very few high-profile mass shootings of the last couple of years.

[00:25:28]Um, we're we're at a point where there just have not been nearly as many. We did we do have some like there have been some high-profile shootings. Most of them have been, you know, like assassination attempts, um, or, uh, you know, things where fewer people are are directly affected, uh, or mass shootings that were thankfully mass shooting attempts that were stopped before they, uh, could reach the levels of something like a Vald Day or or a Parkland or Las Vegas, right? Um, we just saw one of those in California at the the mosque shooting where, uh, the perpetrators killed three people, but were, it seems, uh, prevented from killing more by, uh, the the armed security that was there at the time, who was a victim of the the attack. But the point is, like, we haven't had the kind of um, high attention, the kind of sensational shootings. we haven't had nearly as many of them as we had uh in recent history.

[00:26:32]And so there I think that means there's less media coverage as well because there's less sensational shootings.

[00:26:40]There's there's less attention on the issue. There's less shootings overall.

[00:26:43]So people aren't paying super close attention to this issue. Um you know, the general public at the very least.

[00:26:50]Obviously activists are a little different in that they they pay more attention um all the time, but uh certainly I think this is clear as well. If you just look at the times when guns uh are higher up in that issue ranking poll or there when there are a lot more people saying it's the most important issue, almost always that is happening after major mass shooting events. you know, the pulling on guns tends to fluctuate around major mass shootings. Uh the attacks, you know, violence that gets a lot of attention. That's that's where you tend to see this issue become more prevalent.

[00:27:35]And so, we haven't had a lot of that.

[00:27:36]And I think that's a big thing. Uh now, you know, what that means for the midterms, I think, is is another question.

[00:27:46]Uh, obviously, like I said, the other issues are what's driving, I think, a lot of people's attention. It's what drive it's what's driving President Trump's numbers down. And it's probably going to be those issues, you know, the economy, the effects of the war in Iran, uh the corruption scandals, uh that that have happened like this this slush fund for, uh January 6th riers, uh you know, like that that sort of stuff is probably what's driving most of the news cycle and what's uh likely to drive votes in in the midterms rather than, you know, tomorrow if the president came out and uh and his party, you know, signed and repeal of uh every gun law that gun rights activists want. Maybe it helps some drive some people to the polls. But with where the uh surveys are indicating voters have their interests, the issues that they're focused on at this point in the election is probably that's what's going to decide it. Um, now there there certainly will be uh instances where specific races are more focused on guns. We've already seen that in several Republican primaries uh specifically in Texas, right? The uh Brandon Herrera won his primary uh that he launched primar, you know, in large part because of um Tony Gonzalez's vote in the Bipartisan Saber Communities Act.

[00:29:16]that same bill um support for that bill has had an impact in the John Cornin race. Uh although I would say both of those races also didn't necessarily come down to guns, right? Gonzalez Guerrera won because Gonzalez resigned uh over his sex scandal. and Cornin. We haven't had the election there yet, but I think um a big, you know, the main the main um deciding factor a lot of people see in that race is that the pre President Trump just endorsed Ken Paxton, his his opponent. Uh and I don't think that had anything to do with gun policy. Uh there may be a lot of u Republicans in Texas upset with John Cornin over his his not just vote on the bipartisan safer communities act, but his involvement in crafting it. Uh, but I don't know that that's going to be the deciding factor.

[00:30:12]Most people, I think, are looking at Trump's endorsement of of Paxton as the deciding factor. So, I don't know.

[00:30:17]Either way, it doesn't mean that guns can't be a deciding issue in some of these races.

[00:30:23]It's just it's not it doesn't seem to be shaping up to be a top issue in the midterms. I mean, midterms are usually a reflection of what people think about the Republic, you know, the the party in power, the the president's party, and he they usually lose seats anyway. Um, and with Trump polling near all-time lows for any president, uh, you know, is probably going to be worse than your average loss, but we'll see. You know, we there's still some time for things to turn around. Um, and honestly, with the unpredictable nature of mass shootings, the is That is usually what drives relevance in uh in the gun issue and could happen unfortunately at any time. Hopefully it doesn't. Um and I would love to to see Americans care about gun policy uh without that driving force of of some major mass shooting happening, but uh that tends not to be the case. So, sort of a catch point too there is to if you're a proun uh voter, uh you're you're a gun rights activist, I don't know that you necessarily even want guns to be a more salient issue because generally that means something terrible has happened and the support for gun control also goes up around uh these major mass shootings. So, anyway, that's that's what I'm seeing in the polls. I just we haven't talked a lot about them and and the broader uh environment in a while and I think largely because it's just not something pollsters are even asking about at this point. Um so that's but that's where things stand right now. There's more in the piece for members over at the the reload.com.

[00:32:04]>> Yeah, members should go check members should go check that out. Um but bit of news that you teased in that answer uh related to uh ATF chief counsel Robert Lighter who you had on the show uh gave an answer on something that at least a narrow slice of people are heavily focused on within one of the bigger gun related actions of the administration.

[00:32:22]Obviously the big roll out of the ATF rules uh the public comment period on at least the proposed rules uh is currently under you know going on. when people are filing comments and the one that has attracted the most comments of any of them has to do with the changes to the 4473 and the uh specifically sex or gender identity uh changes being made um leading to some fears uh that because it's all being changed to reflect purely biological sex that some folks are worried that this could potentially trip up trans or non-binary uh potential gun buyers and you uh actually specifically asked ATF council ider about this and whether that is a risk and he uh seems to suggest and and seems to think that there is just no concern of that whatsoever.

[00:33:09]>> Yeah, he was pretty adamant and straightforward in in answering that question. You know, I I asked him directly, is this a backdoor transgun ban? You know, this uh which by the way, what they're doing is on any ATF form, which would include the the form 4473, which is the background check form when go to buy a gun. Uh even though the FBI is the one that actually runs the check, the form is created by the ATF. Uh but uh on any ATF form, including that one, they're going to require applicants to select quote uh their immutable biological classification as either male or female, and they're rejecting the idea of uh gender identity. Um so essentially, you're you have to put down your sex at birth. Um, and you can't put down, you know, whatever you identify as, even if you've had your official government ID changed to reflect your your gender identity.

[00:34:04]The ATF is saying you have to put down um, you know, your your birth gender, your birth sex at uh, on any form or and and to be fair, like it is they consider it perjury if you don't put down what they're telling you to put down. Um, and uh, so this has gotten a lot of uh, push back from gun rights activists in the the gay and trans community. Um, including most prominently Pink Pistols, which is, you know, an LGBTQ gun rights group that's been around for a long time. Um, they they're very concerned about this rule. They think it's uh sort of a the culmination of what was reportedly being considered last year in the wake of the Charlie Kirk assassination where there were numerous reports that DOJ was considering some sort of transban uh trans gun ban uh trying to formulate some kind of way to to bar trans people from owning guns. uh that was it seemed to have been shot down pretty quickly by uh unified response from gun rights groups. Pretty much every major gun rights group you could think of said that they would not uh support that that they would oppose it and uh you know the administration stopped talking about these were all anonymously never something DOJ came out and said they were going to do. It was a lot of reporting was sort of um trial balloons is is what you might look at it as. But, uh, Pink Pistols is saying, "Okay, this this gender rule that they put in this package of of gun rules that activists have, uh, gun rights activists have primarily been very, you know, happy with. Uh, this rule is, uh, you know, we we think it's going to lead to, you know, trans gun ban." Um, and so I asked Lighter directly, uh, you know, is this a backdoor trans gun ban? And he said, quote, "No, not at all. I don't even see how that could possibly be the case. I mean, it's it's not at all. Um, and so I asked him further, uh, you know, one of the concerns is essentially, you know, there's 13 states where you can have your ID, um, say non-binary. Uh, and there's more states, I believe, that'll let you, you know, change your your, uh, sex ID. Uh, and so what happens in um the case where somebody goes in and they put down the gender that the ATF is requiring them to put down or or their sex and it doesn't match their ID that they hand to the or their appearance, right? That uh when they're in the store, what you know, people might get denied over that like what's going to happen in that scenario? Is the dealer going to say, "I'm not going to sell this gun to you because it's match. Is the FBI going to deny your Nyx check?"

[00:36:56]Um, and Lighter said directly, he said, quote, "There's no basis for denying a purchase either by the dealer or by Nyx simply because there is there's a mismatch between the identification and the form. Uh, I know this has gotten batted around online, but it's simply not true. The dealer should just go forward with the transaction." Um so you know he says he says a bit more in the full interview. Um you can read it in the piece as well but uh from his point of view he's saying this this change will not bar people from buying guns if they can otherwise legally purchase them. Um, you know, he he also said that once the rule is finalized, you know, he's he noted that obviously the comment period, the ATF is going to take in all these comments and as you mentioned, this is the most commented on rule change so far. Uh, but they're going to take in all the comments. They're going to consider them and they may alter the rule. This is true for any rule. Not saying specifically about this one, but um and so there's a whole process that has to go place before you get to the final rule. and only after the final the rule is finalized will they begin creating um guidance for dealers and buyers. Uh but he he said that that they are going to do that. Um and he did admit that there you know there are difficult uh scenarios when it comes to um identifying people including around their sex um and that they're still sort of working on some of these details when it comes to what might be in a guidance or he said quote we are currently working through some of the hard cases ourselves. You might have a case where somebody does check the box in terms of gender identity is of a different sex and then the question is going to be what does the dealer report to the FBI because again the FBI is classifying people based on biological sex. So we have to work through exactly what the mechanics are when those situations arise. Will we be giving guidance or we will be giving guidance as the time comes. So, um, you know, I we talked to Larry Keane of the National Shooting Sports Foundation, which is the industry's trade group, uh, on the podcasts, interview podcast before we had lighter on, and he was saying that that is something the industry wants is guidance. Um, that's kind of how all this started. The industry was asking, you know, what do we do in these circumstances? And in in response, the ATF changed the form, the background check form to add a non non-binary uh option.

[00:39:26]And then now basically they're changing it back to get rid of that option and telling people you have to put your biological sex from birth um on the form and uh you know is how that's all going to play out in practice I think is still an open question. Lighter is insisting that it it won't have an impact. It won't prevent people from buying. Um and obviously activists are much more skeptical about that. Pink Pistols I don't think um is Pink Pistols is clearly unsatisfied with this change.

[00:39:58]They don't want it to happen at all. Uh and they think it will basically create a trap for um uh uh transgender gun buyers. Uh so we'll we'll have to see what happens uh after this comment period is over, whether they change anything about whether they get rid of the requirement to report your your sex or not. Yeah, there's a number of things on the background check form that obviously aren't they're meant to be there to help identify who the person is. Uh like your weight and height are also required on that that form even though there's no like federal law that regulates gun sales based on somebody's height or weight. Um or eye color is another one.

[00:40:43]Um, and so I if there's this much constination over the gender question, there's also like the idea of why they even need to ask you that, especially because lighter uh claims in here that the FBI will actually run your name uh under both gender um identifiers when they do the background check. So, it kind of doesn't even matter is sort of what it sounds like uh at the end of the day. Um and for practical purposes at least. um he's he he's lighter said it does have um some effect that it would help to some degree but yeah we'll keep on top of it and obviously if it does lead to people being denied over their gender identity I think that's going to be uh something that we'll we'll cover very closely um and that is going to probably upset a lot of people even beyond just the uh LGBTQ gun rights community so um but he that lighter's position is that it won't have that kind of effect at all.

[00:41:42]>> So, we'll have to wait and see once the, like I said, once the rule finalizes and the changes actually go to practical effect. Uh, the final story of ours that we want to brief just briefly touch on is that we're starting to see a little bit of local government push back on the recently signed uh gunbanning the sale of quote unquote assault firearms, which is going after obviously things like AR-15s, as well as magazines capable of holding more than 15 rounds.

[00:42:06]Uh we've since that has been signed into law, we've seen at least four different Virginia Commonwealth attorneys, which are local prosecutors, saying that they just have no intention of enforcing this whatsoever. So yeah, I mean there's actually been a fifth that was added after we published this story. So um I think here, let me give you a quote from one of the the letters real quick. This is Commonwealth Wealth's attorney, uh, Philip Blevens, um, who is is attorney in Smith County.

[00:42:37]These are all, to be clear, smaller counties, and I think there's maybe 200,000 people that live in these four counties. Um, but, you know, it's sort of a potential start of a more significant movement. Um, but the quote here from from Blevens is this is a letter to local law enforcement in the county. And he said, "I took an oath to uphold both the Constitution of the United States and the Constitution of Virginia. That oath requires more than mechanical enforcement of statutes. I must exercise prosecutorial discretion, constitutional judgment, and fidelity to the rule of law. As such, my office will not support criminal charges resulting solely from technical violations of the unconstitutional assault weapons ban."

[00:43:18]So, that's pretty much in line with what the other uh three prosecutors who who've we quoted in here have said, you know, they they they all say they'll continue to enforce uh other gun laws, but not the assault weapons ban, which has not gone into effect yet. Uh, by the way, was signed by the governor, so it is law, but it doesn't go into effect until July 1st.

[00:43:43]There are a number of legal challenges that have already been filed as you covered uh last week in the in the piece for members. Um you know the details of of those challenges both at state and federal level. But basically these these prosecutors is what the Commonwealth's attorney is in Virginia. They uh which is an elected position here. Um so these are not appointed by the governor or anything. They're they're independent elected uh local officials. But they um are saying we're not going to bring charges based on the the ban the AR-15 and similar firearm ban that that the governor signed. So, uh I think this is particularly interesting as a potential trend in the state, an offshoot of the Second Amendment sanctuary movement that Virginia uh saw a lot of success with.

[00:44:38]the gun rights activists in Virginia saw a lot of success with inh 2020 after uh the state government which was this is the last time Democrats had uh full control of the state house and the governor's mansion. Uh they passed a number of of gun control bills at that time. Universal background checks, red flag laws, things of that nature. Um not an assault weapons ban. Uh that didn't happen until this time. But uh you saw it there was about 150 counties and localities that passed Second Amendment sanctuary declarations that were is similar idea to what these prosecutors are saying that you know the the local authorities won't enforce what they believe are unconstitutional laws. And so that that really picked up a lot of steam and and got to um one estimate is about half the the state's localities passed some sort of resolution. Um it sort of depends on I think how you define these what is a locality, right?

[00:45:42]But anyway, they they got to 150. It was most of the most of the counties in the state pass them. although not the more populous ones in in Northern Virginia, of course, like Fairfax County or or Arlington or places like that. Uh there are more strongholds for uh for Democrats, but um it still did pick up quite a lot of steam and that's what we're going to watch for with this. If it's, you know, if it's just these four four or five uh prosecutors, um you know, I don't know how much that it means. Uh but if you get a lot of them and they they cover a large percentage of the population that that becomes you know more significant movement and uh more sign you a lot of the second amendment sanctuaries didn't lead to any sort of real life clashes on you know uh constitutional authority of these localities or state and you didn't have a lot of that. there just wasn't um those kinds of uh real world incidents that derived from this. It was mostly a symbolic thing. Um but here it could uh escalate into something more than just symbolic.

[00:46:56]the governor uh governor Abigail Spamberger didn't reply to our our comment requests on for reaction to what's going on with these these proclamations, but you know, if there this could certainly lead to some sort of at least legal battle between these local officials and state officials um uh in in addition to those gun rights suits that we already mentioned. So, we'll see uh what happens as that develops.

[00:47:21]Certainly getting into some of our outside of the reload newsletter links this week. There's actually an interesting story from the trace about a uh controversial street group out in Philadelphia in particular that sort of they're called the Black Lions, but it's uh I think it's pretty on the nose modeled after the Black Panthers. Uh and they engage in very similar tactics. Um they they've made headlines over the last year or two for doing basically armed community patrols that they say are geared at, you know, policing the police. And uh this trace piece in particular talks about their protests of ICE, their armed protests of ICE. While evidently some of the members of these armed protests have caught the attention of city officials who have uh of late been using discretionary subjective language within the the city and the state's uh firearms laws to start revoking uh gun permits for these folks despite them not being convicted of any crimes.

[00:48:15]>> Yeah, this one's interesting on a couple of fronts, I think. Um, and maybe we'll have to do some more reporting on this or have uh a representative from from this Black Lions group on the show, but uh you know, obviously gives you vibes of uh the Black Panthers and their police patrols in California uh back in the 60s, right? That led to um you know, the the gun control uh measures that were passed u to ban open carry in California that was really in direct response to what the Black Panthers were doing at the time. And so this obviously has hallmarks of that. Uh but it also reminds you of Breuin, right? Because the the what the city of Philadelphia is using to revoke these gun licenses for these these members of this group uh is that same good character uh clause that was so problematic in Bruin. uh because it was uh you know just this is this this completely subjective criteria that let government officials have an incredible amount of of uh say over who has good character and who doesn't you know it wasn't it's not based on convictions or or anything like that and I think this really emphasizes that because you know and I don't we don't know the full background of this group there could be other incidents that that uh where they've done something that actually is illegal or or wrong or whatever Um, that's entirely possible, but at least according to the reporting here, it seems that most uh that that the actual inciting incident that led to a lot of these Black Lions members having their gun licenses revoked was uh, you know, just a verbal altercation with a double parked police officer um where nobody was, you know, there were no shots fired by anyone and no one was even arrested. So, that's interesting if that really is the catalyst for why these these folks have had their gun licenses revoked. I mean, it sounds like this is a group that the the police don't like very much because they're, you know, doing like watchdog stuff against the police, uh, which, you know, um is is not never something that's going to go over very well with with law enforcement probably. But, um, you know, they I imagine they don't have a very favorable view of the police either. And um um so you know there's probably not a lot of uh positive interactions between this group and the law enforcement and uh but it it sounds like at least from the reporting like they've had their uh gun licenses revoked based on the police not liking them. Um and and they're using this what seems to be unconstitutional provision in Pennsylvania's uh gun carry permitting law that that allows police to revoke people's licenses based on you know quote unquote good character requirements. Um, well, uh, you know, if you're using that good character requirement as we just don't like you or you yelled at a cop or something along those lines, that's a problem, right? At least under Bruin, it would seem to be a problem.

[00:51:26]That brewin was about issuing licenses instead of revoking them, but I don't see why the the core concept would be any different here. Um, but, you know, there may be more to the story as well of this group. Um, but if they don't have convictions and they're getting re revocations of their licenses, that seems like a big problem. Um, so yeah, perhaps we'll have to do some more digging on this one and have uh have somebody on the show to to talk about it. But that I mean, you know, the parallels with the Black Panthers is such an obvious and probably intended uh thing with this this group that um uh you know, that's what caught my eye about it. But I mean, if that if they're out having the gun, if the underlying narrative of this story is true, that's a pretty significant issue.

[00:52:12]>> Yeah, certainly. And just a fascinating story either way, like you said, because of the parallels and because of the uh very breinesque uh nature of these uh pretenses or the pretext. Um and then the final link we want to touch on before we wrap up here uh comes to us from NPR. Um, the gist of the story is just about, I guess, NPR catching up to the fact that gun rights groups are pretty happy with the Trump administration because it keeps doing things that they like. But, uh, there were some interesting newsy tidbits in there from both gun rights, a gun rights group and some gun control groups about what they're planning to do legally speaking with some of the ATF rules that we've been covering.

[00:52:48]>> Yeah. I mean, both of them say they're going to file suit. Goa, uh, Guners America had at least a specific rule that they were targeting, right? the uh the records retention rule for uh both in business gun dealers keeping you know the requirements to keep their background check forms uh for the ATF's suggesting 20 to 30 years um as opposed to what the current standard is you know infinite essentially they have to keep them forever uh and then also the the database that exists or the collection of records that exists uh at the ATF from the out of business uh gun dealers have gone out of business. They they won't have the same requirement for that. 30 to 20 to 30 years is one of the rules in this new package. I actually asked uh Lighter as well about that issue and and GOA's criticism uh because GOA just doesn't want the out of records business uh records the out of business records uh collection to exist at all.

[00:53:47]They want they want that gone. They they think it's an akin to a gun registry. um or at the very least that it could be turned into a gun registry, right? And so, uh I I did ask Lighter directly about that. He he gave his perspective, the ATF's perspective on it, the interview this, but here we have them saying they're going to sue over it. So, that that that's a specific threat of uh some sort of legal action based on the the rules packages that the ATF has released. And then you have uh gun control groups in this NPR piece who are saying they're going to sue more generally. I don't think there was anything in there that was about like which specific rules they're going to target or what legal arguments they're going to make exactly, but um just the news that they are going to sue because that was something we didn't actually see in most of those early responses from gun control groups. They were very upset about the package, but they didn't specifically threaten to sue over anything. uh at least not right off the bat. So, here you have an escalation in those terms where gun control groups are saying we're we're going to sue over this, but we still don't have the specifics of what they plan to sue over, which which rules they um don't like.

[00:55:00]And I would imagine they'd also have to wait until these rules were actually finalized. So, I wouldn't expect anything coming anytime soon. But, you know, you might get some APA sort of challenges.

[00:55:13]That was a lot of what was used against the Biden era rules. But as we talked about on the show with Lighter, the the interview, one of the things they designed these rules around was the I uh was the idea that they could be challenged and they wanted to minimize the risks they would face in court. And that's why they didn't go maybe as far uh out on a limb on some of these things as you saw, you know, during the Biden administration where they were were really trying to push the limits of what the ATF's authority was and they uh didn't succeed very much in court with that. And so Lighter was arguing that, you know, it's one of the things they took into consideration. So it may be harder to challenge these things. We'll have to see what uh the groups come up with. But yeah, the the update is they are now actually threatening uh lawsuits. So, uh I think that's all we've got in terms of the news uh this week or news update. We're we're doing uh of course our member Q&A for the the main podcast uh this week. And so we're going to go to filming that and we got a lot of great questions that came in uh this time around uh from our members.

[00:56:23]I'm happy to sort of dive in and try to figure out what those are uh with with you Jake here as once we finish this episode, but that'll be out of course for members on Sunday because they also have the perk of getting the episodes a day early. Uh it'll come out for everybody else on Monday. But um but yeah, other than this uh other than us filming that episode, you have any fun plans for the weekend?

[00:56:47]>> Uh we'll watch it one hockey. My abs are in the Western Conference Finals. Uh they unfortunately dropped the ball in game one, but uh >> the Hurricanes finally lost too, right?

[00:56:58]>> They did. Yeah. So, both Juggernauts lost at home in game one, which isn't cool. And it's double sucked for me because I actually went to game one. Uh that's my first time going to a conference final game, so I was super jazzed and then they totally stunk it up. So, that wasn't great.

[00:57:13]uh ended up being 4-2, but it was 3 nothing until >> until like late in the third period and the ABS decided to show up a little bit and looked like they were going to make it close and then they gave up an empty net gold and so um >> well I think that's the >> that's exactly what happened with the uh the Hurricanes too for the most part like it was it was uh that's interesting to see but you know that can happen when you've gone on a long hot streak and you're playing good >> and both teams had a ton of time off before like they these these other teams are playing and are you know they're in the motion right now. They just came off a series whereas the ABS and especially the Hurricanes have been sitting at home for almost two weeks.

[00:57:52]>> But I would still be surprised if it doesn't end up being ABS Hurricanes in the finals. So I think you got a lot to look forward to out there in Colorado uh when it comes to hockey. Um and we're just sitting back here on the East Coast. Philly fans are sitting around hoping that Kyle Schwarber's stomach, but he's he's on pace to break like the world the home run record and they get he's been out for like three games straight because of some sort of stomach issue. So, I don't know like stay away from the burritos or whatever and uh get back out there and and hit some dingers for us. Uh >> someone poison poison a waw wa hogy.

[00:58:29]>> Yeah. Don't don't do the the three four day old hogies, you know. I got a new one >> uh from, you know, >> uh instead. Yeah. So, that's what I'm hoping for, paying attention to, um out here since the Flyers got demolished by the Hurricanes, but hey, they beat the the Penguins, so that's not so bad. And this, you know, same thing for the Sixers.

[00:58:53]>> Yeah. Like, I don't know. I didn't have I don't think anyone thought they were really going to >> compete for the Stanley Cup or whatever.

[00:59:00]And the same for the Sixers. like at least we beat those Celtics. You know, there's something something there. Try to be a little optimistic. But anyway, uh you definitely have a team that can can actually compete for the cup. Uh so, uh and probably I would say probably the best player in the sport right now.

[00:59:18]McKinnon uh is probably >> many people are saying, >> you know, I like it's either him or McDavid, right? And McDavid's had a pretty rough run recently of especially in the in the the big moments. He's not uh not been uh too too too successful there. So I I would pick McKinnon as best in the in the league at the moment.

[00:59:41]So you guys have a real good chance of win the cup. So hopefully you get to go to another game. Um, I mean, I can't imagine uh it's it's a very affordable thing to do more than once, but maybe you'll get to go to another one or go to the maybe the series and you can >> an anonymous benefactor wants to gift me tickets, I will gladly accept them. How about that?

[01:00:02]>> Yeah. If any listeners have tickets to the the Western Conference Final or the Stanley Cup, uh, you know, contact Jake.

[01:00:10]>> That's right.

[01:00:11]>> All right. Well, we'll leave it on that note there. Hopefully, maybe you'll get lucky. But uh that's all we've got for you guys this week. We will see you again real soon.

[01:00:23]The devil's got no hold on me.