2022—The year of New York State Rifle & Pistol Association v. Bruen. In the 6-3 verdict
By Tanya Metaksa
Justice Clarence Thomas wrote, “The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'”
The anti-gun groups’ reaction to Bruen is best summarized by Ian Millhiser’s lead in an editorial in left-leaning Vox:
“Bruen is a devastating decision for anyone who cares about reducing gun violence. It massively expands the scope of the Second Amendment, abandons more than a decade of case law governing which gun laws are permitted by the Constitution, and replaces this case law with a new legal framework that, as Justice Stephen Breyer writes in dissent, “imposes a task on the lower courts that judges cannot easily accomplish.”
Milhiser’s prognostication is an overblown hyperbole as he suggests it is a slam dunk for Second Amendment supporters, while in reality the way forward through the various District Courts and the Courts of Appeals will be tedious, costly and not guaranteed. There will be setbacks and the road to another U.S. Supreme Court (SCOTUS) opinion is hardly guaranteed.
The Bruen case really began a year earlier when SCOTUS agreed to consider the case and then scheduled the court date for December 2021. In 2022 two other cases were requesting certiorari: Dominic Bianchi et al. v. Brian E. Frosh and Aposhian v. Garland. In anticipation of the decision the Ninth Circuit (CA and west coast states) all firearms cases had been put on hold awaiting SCOTUS’ decision. Additionally there were several cases in the state courts, Florida, Georgia, Texas and Illinois, challenging state laws that restricted firearms ownership for people under the age of 21.
With the announcement of Justice Steven Breyer’s retirement President Biden’s first SCOTUS appointment, Justice Katanji Brown Jackson, was approved by the US Senate in April and was scheduled to take her seat on July 1. At the state level the Washington Supreme Court ruled that the city of Edmonds had violated the state’s preemption law when it passed an ordinance requiring guns to be locked.
During May a Ninth Circuit three-judge decision in the Jones v. Bonta case was hailed by Firearms Policy Coalition, the initiator of that court action, “Today’s decision confirms that peaceable legal adults cannot be prohibited from acquiring firearms and exercising their rights enshrined in the Second Amendment.” Jones v. Bonta and several other firearms cases decided in early 2022 were vacated and remanded (V&R) by several Appeals Courts to be reconsidered as a result of the Bruen decision.
After June 23 courts across the country began reacting to the Bruen decision. The four cases that were awaiting SCOTUS certiorari decisions—GOA v. Garland, Duncan v. Bonta,Dominic Bianchi et al. v. Brian E. Frosh et al., and Aposhian v. Garland—were “granted certiorari”, ‘vacated”, and then “remanded” (sent back) to the lower court to be relitigated. This action by a court is known as a GVR.
The five known states that were immediately affected by Bruen were California, Hawaii, Maryland, Massachusetts, New Jersey, New York and Rhode Island where current laws were not in compliance. New York immediately called for a special legislative session to rewrite their firearms carry law. On July 1, 2022 the legislature passed and Gov. Hochul signed the hastily and badly written bill that made carrying a firearm in most areas of NY unlawful. The law, S,51001/A.41001, commonly known as the Concealed Carry Improvement Act (CCIA) became effective on Sept. 1. Similarly, In California Gov. Gavin Newsom signed five anti-gun bills on July 1 in response to the Bruen decision.
In Maryland, Massachusetts, and New Jersey issuing authorities made announcements concerning restrictions on carry permits. Hawaii waited until late summer to being working on county-by-county carry ordinances. In New Jersey after much public angst from Gov. Phil Murphy, the legislature began working on its own NY-style carry law that was finally passed and signed in December 2022.
Gun rights attorneys were not waiting for the dismal efforts by this handful of states, they went right to work filing lawsuits. In the summer two lawsuits challenging BATFE’s new rule concerning the treatment of “frames and receivers” were filed—Vanderstok v. Garland in the Northern District of Texas Circuit Court and Morehouse Enterprises v. ATF in the District of North Dakota. in California two new court actions were started against Newsom’s newest 2022 gun laws: B&L Productions v. Newsom andSoCal Top Guns v. Bonta. While back in New York cases began being filed against the newly minted CICA: Paladino v. Bruen, seeking relief from the prohibition of carrying firearms on private property, and Corbett v. Hochul, a complaint against the requirement for information on applicants’ social media involvement.
In a Texas case, Andrews v. McCraw, the plaintiff challenged a state law that “makes it illegal for 18-to-20-year-olds to carry a handgun for self-defense outside the home.” Judge Mark Pittman ruled the law unconstitutional and stayed the case for 30-days pending an appeal, which was executed on September 30. However, on Dec. 20, Steven C. McCraw, Director of the Texas Department of Public Safety, withdrew his appeal and thus the Texas’ ban on 18-to-20 year olds possessing a handgun outside the home was struck down. In Virginia where gun laws were instituted under the previous Democrat administration several cities, Winchester being one, passed ordinances that restricted where citizens could carry firearms. A challenge case, Stickley v. Winchester was filed in April 2021, but post-Bruen the court ordered an injunction against most sections of the ordinance.
During the final four months of the year firearms lawsuits were multiplying in ever increasing numbers. In September the following lawsuits had significant activity. Junior Sports Magazine, et. al v. Bonta, was filed against California’s new law restricting youth participating in shooting activities; The first two of several lawsuits against the new NY gun law: Boron v. Bruen, was filed on Sept. 13in the US District Court for the Western District of New York, while Antonyuk v, Hochul was filed a week later in the Northern District of New York. In Rigby v. Jennings, 2021 lawsuit, Judge Maryellen Noreika Issued a temporary injunction stopping a Delaware ban on gun parts and so-called ghost guns. Oakland Tactical Supply, LLC v. Howell Township, Michigan, was vacated and remanded by the United States Court of Appeals, Sixth Circuit, as a result of Bruen.
In October SCOTUS denied both Aposhian v. Garland and GOA v. Garland’s petitions for certiorari, but the Court granted a writ of certiorari for Morin, Alfred v. Lyver, William, et al and then vacated and remanded it back to the First Circuit Court of Appeals. Judge Glenn T. Suddaby, presiding over Antonym v. Hochul, granted a Temporary Restraining Order (TRO ) against major parts of the CCIA. Suddaby’s decision was quickly appealed to US Court of Appeals for the Second Circuit where an administrative judge stayed the TRO until a three-judge panel could rule. NSSF and firearms manufacturers filed a challenge against NY’s 2021 law allowing lawsuits against the firearms industry in NSSF v. James. After the case was quickly dismissed by District Court Judge Mae D’Agostino, the plaintiffs appealed to the US Court of Appeals for the Second Circuit.NY Judge John L. Sinatra, Jr. on Oct. 10 ruled in Hardaway v. Nigrelli that the section of NY’s new CICA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional. Third Circuit: Judge Renee Marie Bumb in Mazahreh v. Grewal ordered a permanent injunction against any requirement for applicants to show a “justifiable need” to apply for a Right-to-Carry permit in New Jersey citing the Bruen decision. Miller v. Smith: A lawsuit initiated by the Second Amendment Foundation challenging Illinois law banning foster parents from keeping a gun in the home was appealed to the Seventh District Court of Appeals. Ninth Circuit cases in October: The judge in Defense Distributed v. Bonta ruled against a TRO but the challenge to the “ghost gun” law in CA will proceed and in a CA state court CRPA challenged a city ordinance banning guns on city property in CRPA v. Glendale.
Litigation news in November did not slow down. A preliminary injunction was issued in Hardaway v. Nigrelli, a lawsuit initiated by Firearms Policy Coalition challenging the ban on carrying firearms in churches in NY. Ruling in Antonyuk v. Hochul Judge Glenn T. Suddaby on Nov. 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay.NY State (the defendants) filed a motion to in the US Court of Appeals for the Second Circuit to stay the Restraining Order pending an appeal and the plaintiffs filed a response opposing their request for a stay. Although “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022 in Christian v. Negrelli, a stay was ordered by US Court of Appeals for the Second Circuit. A criminal case In the 4th Circuit, US v. Price, considering the federal prohibition against altering serial numbers was ruled unconstitutional by Judge Joseph R. Goodwin. Vanderstok v. Garland Judge Reed O’Connor granted Second Amendment Foundation and Defense Distributed’s motion to intervene and also granted BlackHawk Manufacturing Group’s motion for a preliminary injunction. Columbia Housing & Redevelopment Corp. v. Kinsley Braden, a case brought by a tenant who had a firearm, the Court of Appeals of TN at Nashville (a state court), ruled in favor of a tenant. In the 7th Circuit NAGR v. Naperville, IL challenged Naperville’s assault weapons ban. Both CA case, Rhode v. Bonta, initiated in 2017 against CA’s ammunition laws, was vacated and remanded, and NAGR v, Shikakda, challenging Hawaii’s Pistol Statutes, was initiated as result of the SCOTUS Bruen decision. After Measure 114 passed in Oregon a lawsuit, Oregon Firearms Federation v. Kate Brown, was filed in US District Court for the District of Oregon, seeking injunctive relief against the implementation of Measure 114.
Judicial activity continued in the last month of 2022. The New York case load was very active: in NYSR&PA v. Bruen plaintiffs requested $1,269,232.13 to cover the attorney’s fees and costs; in Corbett v. Hochul the Motion for a preliminary injunction was DENIED; Bleuer v. Nigrelli, another church carry ban lawsuit, was stayed; and in Antonyuk v. Hochul and Christian v. Nigrelli appeals to the US Court of Appeals for the Second Circuit have resulted in a “stay pending appeal.” Montgomery County’s Motion to Remand in MSI v. Montgomery County was denied and plaintiffs can now file the proposed motion for a TRO and preliminary injunction (PI). Judge Benitez (CA) held a status conference for the following cases: Miller v. Bonta, Rhode v. Bonta and South Bay Rod & Gun Club v. Bonta;South Bay Rod & Gun Club v. Bonta. In Miller v. Bonta Benitez ruled against the CA Attorney General’s request to moot this case. The judge in CRPA v. City of Glendale denied a preliminary injunction and required both sides to meet concerning areas proscribed from carrying firearms. The Ninth Circuit vacated and remanded Jones v. Bonta and Miller v. Atkins as a result of the Bruen decision. Lawsuits against Oregon Measure 114 had grown to 5 but the Arnold v. Brown case before state Judge Robert R.Raschio has effectively stopped Measure 114 activity by blocking both the measure’s magazine ban and its “permit to purchase” process. However, he has agreed to revisiting the permit to purchase section by Jan. 3.
Finally several cases have scheduled court dates in early 2023. In Hawaii oral arguments are scheduled for Feb. 14 for both Terter v. Shikada and Yukutake v. Shikada. A Jan. 23 hearing is scheduled for the request for a Preliminary injunction for Boland v. Bonta. The fourth Heller v. DC in which Heller challenged the DC City Council ordinance outlawing the manufacture of firearms and the city repealed the ordinance would not be finalized in court until after Dec. 30, which means it goes into this year. MSI v. Hogan has been calendared before the 4th Circuit during the 1/24/23-1/27/23 session.
