The Weekly Reload Podcast

Contributing writer Jake Fogleman and I discuss a sweeping new ruling out of Connecticut, where a federal judge upheld the state's handgun restrictions for 18-20-year-olds shortly after the Supreme Court declined to address the issue. We also cover a new stay order in the state litigation against Virginia's AR-15 ban which will keep the ban blocked until the Supreme Court hands down its "assault weapon" ban decision.

Stories:

This week, AR-15s returned to the shelves of gun stores in the Old Dominion.

Despite being removed about three weeks ago amid a murky legal situation, the popular rifles are back on sale after gun-rights activists secured a statewide injunction against the state's "assault firearms" ban. So, we have one of those activists on the show this week to update us on the legal situation. That is Virginia Citizens Defense League (VCDL) president Philip Van Cleave.

Van Cleave said VCDL, the other gun-rights groups, and the gun industry's trade group all agree that AR-15 sales are now legal. He said VCDL believes that an injunction would be pointless if people weren't allowed to carry out the activities that are impacted. He said he's heard from many stores and individuals that they are indeed back to buying and selling ARs.

However, Van Cleave noted that not everyone has been willing to restart sales. He said there are some lingering concerns about what could happen if the injunction is overturned down the line and the law goes back into effect. Still, he argued there's little reason to think anyone would pursue people for buying or selling ARs while the law is enjoined.

He went on to argue the new AR-15 ban case at the Supreme Court of the United States (SCOTUS) means Virginia's law is doomed one way or the other. He believes SCOTUS will strike down the bans, but he said that could take another year. So, VCDL is pushing forward with the state-level cases against the law, and Van Cleave said he's hoping to get a final ruling there before SCOTUS acts.

Van Cleave agreed that the Virginia Supreme Court is harder to read. But he said he's confident in VCDL's case, and noted Attorney General Jay Jones (D.) has already failed on several fronts in defending the law.

Special Guest: Philip Van Cleave.

Contributing writer Jake Fogleman and I cover a new ruling out of the First Circuit Court of Appeals upholding Massachusetts' ban on AR-15s and similar rifles. Meanwhile, we discuss the fact that the same weapons are now back on sale in Virginia after a state court injunction against the Commonwealth's similar ban took effect.

Stories:

This week, we're looking back at the Supreme Court case that established the "common use" standard likely to play a major role in its new AR-15 case.

That case is 1939's US v. Miller, and we have a guest with brand-new information that unsettles the official story of its namesake. Tulane law professor Brian Frye wrote the definitive account of Miller back in 2008, which ended up heavily influencing the Supreme Court's opinion in 2009's DC v. Heller. But, nearly 20 years later, he says the police and newspaper accounts about Jack Miller's life are now in dispute.

Frye recounts the original narrative of the case, which reads like something out of a gangster movie. Miller was accused of being involved in multiple bank robberies, including a simultaneous heist at two Oklahoma banks. He then turned state's evidence and was later murdered by aggrieved gangsters.

In between that time, he was arrested under the National Firearms Act (NFA) for transporting an unregistered sawed-off shotgun across state lines. An enterprising judge, who'd backed federal gun control as a congressman, then decided to use his prosecution as a test case for the NFA's constitutionality. In a truncated Supreme Court case that saw no oral arguments, that setup paid off with the High Court, in a fairly narrow ruling, determining that short-barreled shotguns aren't protected by the Second Amendment (or, at least, it didn't have evidence to say they are).

It did, however, mention that the Second Amendment would protect guns that are in "common use." And that standard was something the 2009 Court grabbed onto in DC v. Heller, which is likely to play a substantial role in the 2026 Court's forthcoming AR-15 case.

But the current understanding of Miller is deeply flawed, according to Frye. After his 2008 paper on the case garnered widespread attention, Frye said he heard from Jack Miller's surviving family members. And they had a very different version of what happened.

Instead of being a committed career criminal, Miller's great-granddaughter said he was a persecuted minority living in the shadow of the infamous Tulsa Massacre, who was forced into at least some of the crimes he was involved with. He said he's currently working on a new paper that details the family's claims alongside other evidence, revealing a clearer picture of the story behind the Supreme Court case.

Frye said that the local police singled out Miller for his Cherokee background and that they were involved in the bank robberies. He said corrupt police may even have been involved in his arrest for violating the NFA and in his eventual murder.

He acknowledged that the family, like the police and papers from the period, has motivation to tell Miller's story a certain way. But he said he believed Miller's great-granddaughter is credible. Still, he noted they are still working on a final draft of the paper.

Special Guest: Brian Frye.

Contributing writer Jake Fogleman and I discuss a federal judge's recent rejection of the Justice Department's request for a TRO against California's ban on Glocks and other handguns deemed too easily convertible into illegal machineguns. We also cover a recent Eighth Circuit Court of Appeals ruling upholding a criminal conviction for violating the federal gun ban for marijuana users despite the Supreme Court's recent ruling in Hemani.

Story links:

This week, we're looking at how the lower courts have handled AR-15 ban challenges in light of the Supreme Court's latest Second Amendment case.

To explain the consensus that's developed across the appellate courts and provide a different perspective, we have Georgia State University Law Professor Andrew Willinger on the show. Willinger is the former executive director of the Duke University Firearms Law Center, and he teaches a class on the Second Amendment. He's also been critical of the Court's Second Amendment standard and its application at times.

He noted that every appellate court to decide an "assault weapons" or "high-capacity" magazine case has upheld restrictions on the devices. He said they've largely coalesced around similar reasoning. While the Supreme Court has gone out of its way to emphasize that step one of the Bruen test is meant to be a pretty simple filter, Willinger said most lower courts have actually upheld AR bans at step two.

Willinger said they've identified things like 19th-century Bowie knife bans as the core historical analogue for modern AR bans. He said courts have padded those laws with much earlier and much later weapons restrictions, such as the National Firearms Act of the 1930s. He noted some courts have also used the similarity between AR-15s and military weapons, like the M-16, to uphold the modern bans.

He rejected the idea that the consensus surrounding assault weapons bans in the lower courts is primarily a product of geography. Gun-rights activists have long claimed the fact that only a handful of deep blue states have these sorts of bans means only left-leaning circuits have the opportunity to review them. But Willinger argued that the judges involved in the decisions come from a fairly diverse background, with a number of them being Republican appointees.

Still, Willinger said he doubts the Supreme Court will find the same way the lower courts have. He argued we already know that four of the Republican appointees would strike down the law based on their public statements. He said Chief Justice John Roberts and Justice Amy Coney Barrett are the only Republican appointees who haven't directly opined on the laws, but he also said he doesn't think they'll both split from the other conservatives.

Special Guest: Andrew Willinger.

Contributing writer Jake Fogleman and I discuss the latest injunction issued by a state court judge against Virginia's "assault firearms" ban which would block its enforcement across the entire commonwealth. We also cover resurfaced video of Texas Senate candidate James Talarico (D.) voicing support for an "assault weapon" and "high capacity" magazine ban.

Stories:

The Supreme Court has taken up a Second Amendment challenge to a pair of AR-15 sales bans. It's one of the most consequential in the Court's history of gun cases.

To discuss it, we have someone who has been around for that entire history and played a major role in shaping the Court's Second Amendment jurisprudence. Lawyer Stephen Halbrook joins the show to explain that history and provide insight into how it will likely rule in the AR case.

Halbrook said the legal landscape was very different when he first started studying the issue. At that time, the idea that the Second Amendment protects much of anything was out of favor with the lower courts. Instead, he said, the collective-right formulation was the most widely accepted.

He noted it was a fairly small cohort of lawyers and academics that changed the legal landscape on the Second Amendment. He said the individual-rights formulation caught on quickly and culminated in the 2008 DC v. Heller decision. From there, the Court incorporated the Second Amendment right to own guns to the states in McDonald v. Chicago and then recognized the right to carry outside the home in New York State Rifle and Pistol Association v. Bruen.

Halbrook said the Court added to its pro-gun precedents in the two cases it decided this year, and he expects it'll do the same again when it decides the AR-15 ban. He also provided some specific insight into why he believes the Court will go that direction and which justices are the ones to watch.

Special Guest: Stephen Halbrook.

Contributing writer Jake Fogleman and I discuss the US Supreme Court finally agreeing to review the constitutionality of bans on AR-15s and similar rifles next term. We also provide a status update on Virginia's new ban on those same weapons, which officially went into effect despite multiple court injunctions. Plus, we hear from a Reload Member with a fascinating background!

Stories:

This week, the Supreme Court of the United States (SCOTUS) struck down Hawaii's broadest gun-carry restriction.

To discuss the outcome of the case, we have the lawyer who won it on the show. Wolford v. Lopez was Alan Beck's first case at SCOTUS, and it turned into his first win. He said he was very happy with where the Court came down and sees it opening several new avenues for Second Amendment challenges.

Beck said the majority sided with his view of Hawaii's requirement that anyone carrying a gun get explicit permission to enter publicly accessible private property, which he explained critics have dubbed the "Vampire Rule" because vampires also need permission to enter. He said the Court performed the Bruen test the way he asked and expected, by treating step one as a simple filter rather than an exhaustive historical review. Then they examined and rejected Hawaii's use of anti-poaching laws (and even a Black code) as historical analogues for its modern law.

He rejected the contention from several justices and outside commentators that the majority significantly changed the Bruen test, especially at step one. He said the Court did the test in line with how it had previously done it. Although, he argued many lower courts had been misapplying that step, and the Court walking through step one in more detail than before could be in response to that.

Beck said, even without the Court changing its test, further clarifying how to do step one could upend several recent lower-court cases. He noted how new the Court's Second Amendment jurisprudence is, and said people shouldn't expect every new case to make massive new updates to its test. Instead, he said it will likely take decades for the Court to fully flesh out the Second Amendment, just as it did with the First.

He also revealed what direction and new cases he plans to pursue in the wake of the Court's latest Second Amendment holdings. Beck said he's already started working on getting Hawaii to change some of its other gun restrictions.

Special Guest: Alan Beck.