By Tanya Metaksa
What’s New—Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, Langley v. Kelly: On April 28 District Judge Stephen Patrick McGlynn; issued a temporary injunction against the new Illinois gun ban law, but on May 5, 2023, Appellate Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals blocked the temporary injunction. The application for certiorari at SCOTUS went to Justice Amy Coney Barrett, who oversees the Seventh Circuit, and she responded asking for an answer to a question that was due by May 8; Maryland Shall Issue v. Montgomery County: This case has been in litigation before Bruen. The Fourth Circuit has remanded, as requested by Montgomery Count, several counts back to the District Court, but it will move forward in federal court.. Hardaway v. Nigrelli: The state of New York informed the court that the organization plaintiffs, Hardaway and Boyd, as church leaders, now since the passage of a recently enacted amendment to the CCIA, which took effect on May 3, have made their action moot; NSSF v. Ferguson: On May 4, NSSF file a motion for a preliminary injunction. The Court then set a hearing date of July 27 with oral arguments before Judge Mary K. Dimke: Banta v. Ferguson, the WA assault weapons ban, is set for a hearing on a preliminary injunction before Judge Dimke, also on July 27.
Supreme Court of the United States
Currently there are five (5) petitions for certiorari pending before SCOTUS on cases that have a nexus to the Second Amendment. The latest is Bevis v. Naperville & State of Illinois: a late breaking development with an application for certiorari to SCOTUS that had a response by Justice Amy Coney Barrett. In this case the law firm of Clement & Murphy filed a brief in response to Justice Barrett’s query arguing that AR-15s and their magazines are protected under the Second Amendment. That section of their brief can be found here. The remaining pending cases include: Garland v. Cargill, the federal bump stock ban (see below); United States v. Rahimi, domestic violence restraining order gun ban; Joshua Seekins v. United States, a question of flare gun shells; and NRA v. Vullo, a first amendment claim against New York’s Department of Financial Services (DFS). The Court has requested a response in Vullo with a deadline of May 24, but a motion has been fired to extend that deadline to June 23. In Cargill. As the decision in Hardin v. ATF (see below) joins Cargill in splitting the Circuit Courts’ decisions over the bump stock ban, Andrew Willinger opines that it “appreciably increases the odds that the Court will decide to grant certiorari in Cargill.”
Lawsuits challenging Federal Agencies:
Bumpstock ban
Three cases challenging the Federal Bumpstock ban are still viable:
Cargill v. Garland Case: 20-51016. On April 4, DOJ filed a motion that it intends to petition the Supreme Court for a writ of certiorari. A copy of the writ was sent April 6. On April 14, the plaintiffs requested that the Circuit Court continue the stay until May 16, 2023. There have been two prior bumpstock cases in which SCOTUS has denied certiorari: Aposhian v. Garland (Tenth Circuit) and GOA v. Garland (Sixth Circuit). Both of those cases were denied on October 3, 2022.
Stabilizing Braces
Three cases challenging the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on January 31: Britto v. BATFE, and Harrel v. Raoul: Although this case does not concern itself primarily with “stabilizing braces,” but In the preliminary injunction Judge Stephen P. McGlynn writes, “Thus, arm braces are an integral part of the meaningful exercise of Second Amendment rights for such individuals and on April 28 the plaintiffs filed a motion about ATF Director Dettelbach’s “erroneous congressional testimony on April 26 as well as informing the court of the opinion in Hardin v. ATF.
Lawsuits challenging State Laws
New York: Second Circuit: Five cases listed below were the subject of “expedited appeals” on March 20 by the US Court of Appeals for the Second Circuit.Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining orders, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI: the cases are: Christian v. Nigrelli, Hardaway v. Nigrelli, Spencer v. Nigrelli, Antonyuk, et al v. Hochul, and Gazzola v. Hochul.
Hardaway v. Nigrelli: The state of New York informed the court that the organization plaintiffs, Hardaway and Boyd, as church leaders, now since the passage of a recently enacted amendment to the CCIA, which took effect on May 3, have made their action moot.
Christian v. Nigrelli: The state of NY informed the court of a change in NY law that does not have any effect on this case.
California: Ninth Circuit:
Boland v. Bonta: California’s appeal to the Court of Appeals for the Ninth Circuit. After Judge Cormack J. Carney issued a Preliminary Injunction Order determining that the California Unsafe Handgun Act’s provisions…are unconstitutional in the Boland v. Bonta case, it took almost a week for Attorney General Raoul to announce that California will appeal to the Ninth Circuit. California has appealed to the Ninth Circuit and on March 31 the Ninth Circuit issued a stay in part. California’s appeal to the Court of Appeals for the Ninth Circuit.
Renna v. Bonta: Following the PI in Boland v. Bonta, Judge Dana M. Sabraw issued a PI (preliminary injunction) against the California Unsafe Handgun Act’s provisions. Both cases have occurred within a 2-week timeframe. On April 14 CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit of Appeals.
CASES BEING TRIED TOGETHER in Judge Roger Benitez’ courtroom and an opinion is expected to be published this month.
Miller v. Bonta: On March 20, Judge Benitez ruled that (assault weapons ban) § 1021.11 of the California Code of Civil Procedure is unconstitutional. We can assume that this will be appealed to the Ninth Circuit Court of Appeals.
Duncan v. Bonta: (large capacity magazines) The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary by @KostasMoros on Twitter can be found here. This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines with over ten rounds.
Rhode v. Bonta: (ammunition purchase restrictions) Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here.
Other CA cases:
Rupp v. Bonta: This case challenges California’s assault weapon ban and was originally filed in 2017. On April 3, 2023 a Joint Stipulation and Proposed Order to Modify Pretrial Deadlines Motion was filed and on April 7 the Court made changes when it filed its order. The court ordered: 1. The deadline to file dispositive motions remains May 26, 2023; 2. The hearing on the Plaintiffs’ Daubert motion was April 28; 3. The deadline to file motions in limine has been continued to August 4, and the Final Pretrial Conference is continued to Sept. 1. A Daubert Motion was filed by the plaintiffs to exclude the testimony of Ryan Busse, a former gun industry employee who has been used by the anti-gun groups such as Giffords and Everytown, was denied by Judge Josephine L. Staton.
Illinois: Seventh Circuit
A consolidation of cases—Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly now known as Langley v. Kelly: This lawsuit began as a complaint against the new Illinois gun law. Judge Virginia Mary Kendall of the U.S. District Court for the Northern District of Illinois eastern division denied the plaintiffs motion for a preliminary injunction. The original plaintiffs then made an emergency appeal to the US Supreme Court, where Justice Amy Coney Barrett, the Justice that responds to appeals from the Seventh Circuit, was the Justice in charge. The question that was asked of SCOTUS in this appeal was “Can the government ban the sales, purchase and possession of certain semi-automatic firearms and firearms magazines, tens of million of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by D.C. v. Heller and NYSRPA v. Bruen?”In Justice Barrett’s response to this application she directed the defendants to answer why these laws do not violate the Second Amendment with the response due by noon this past Monday. The law firm of Clement & Murphy on behalf of NSSF filed a brief responding to Justice Barrett’s query arguing that AR-15s and their magazines are protected under the Second Amendment. That section of their brief can be found here
National Association for Gun Rights v. City of Naperville, IL & the state of Illinois, also known as Bevis v. City of Naperville, IL & the state of Illinois: Judge Stephen Patrick McGlynn on April 28issued a temporary injunction against the new Illinois gun ban law, but on May 5, 2023 Appellate Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals blocked the temporary injunction. Interestingly Judge Easterbrook was the judge who also issued an opinion in McDonald V. Chicago that was then overturned by SCOTUS.
Additionally on May 5 the IL. State Police issued am announcement that stated, “In consultation with the Illinois Attorney General’s Office, if the purchase of a firearm or firearm attachment banned under PICA was initiated but not completed between the date of the Southern District of Illinois’ Order on April 28, 2023, until the stay of such Order by the U.S. Appellate Court on May 4, 2023, the delivery of such weapon would be unlawful pursuant to 720 ILCS 5/23-1/9(b).” This announcement was made even though PICA does not go into effect until Jan. 1, 2024.
Maryland: Fourth Circuit
Maryland Shall Issue v. Montgomery County: This case was in litigation before Bruen. The current case, which is before the Fourth Circuit, deals with the Second Amendment challenge to the Handgun Qualification License (HQL).This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a HQL. The suit alleges that the HQL requirements, both as set forth in the statute, and as implemented by the Maryland State Police, violate the Second Amendment of the Constitution by placing unjustifiable and overwhelming burdens on the right of law-abiding citizens to purchase a handgun for the home. Now the Circuit Court has remanded, as requested by Montgomery County, several counts back to the District Court, but the “ghost gun” in places of public assembly will proceed in federal court.
Firearms Industry Lawsuits
Texas: Fifth Circuit
USA v. Paola Connelly: Defendant, Paola Connelly, sought a motion for reconsideration that was granted by Judge Katherine Cardone dismissing the charges against Connelly’s charges were DISMISSED. Cardone wrote: “922(g)(3) and (d)(3) are unconstitutional, saying the former is like “a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends.” This case has some similarities to the United States v. Zackey Rahimi as they both deal with federal law sections 922(g)(3) and (d)(3).
Washington: Ninth Circuit
Hartford v. Ferguson: On May 4, plaintiffs sought a preliminary injunction. Plaintiffs seek declaratory and injunctive relief: a declaration that Washington’s ban on manufacturing, importing, distributing, selling, or offering for sale commonly possessed semiautomatic rifles violates the Second and Fourteenth Amendments…Gov. Inslee’s signing was happening as this lawsuit over the new “assault weapons” ban was filed on April 25.
NSSF v. Ferguson: On May 4, NSSF filed a motion for a preliminary injunction. The Court then set a hearing date of July 27 with oral arguments before Judge Mary K. Dimke.
Banta v. Ferguson, challenging recently signed WA assault weapons ban, is set for a hearing on a preliminary injunction before Judge Dimke, also on July 27.
