By Tanya Metaksa
What’s New—Firearms Regulatory Accountability Coalition (FRAC) and Franklin Armory v. BATFE: On June 1 plaintiffs notified the court of supplemental authority in Texas v. ATF and Mock v. Garland; Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, & Azzopardi v. Rosenblum: The Trial was held June 5-6.. On June 13 the Oregon Alliance for Gun Safety (intervenor-defendant) submitted a brief concerning the United States v. Alaniz, upholding the enhancement of sentencing guideline for possessing a dangerous weapon at the time of a felony drug offense; 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: Schedules are being met: Government briefs were submitted by June 5, plaintiff’s briefs have been submitted and arguments are scheduled for the morning of June 29; The Ninth Circuit Court in San Francisco—Mock v. Garland (stabilizing braces) Oral arguments are scheduled for June 29; Baird v. Bonta: Is scheduled before the Ninth Circuit Court in Pasadena, CA for June 29; Novotny v. Moore: On June 9 a motion to consolidate Novotny v. Moore and Kipke v. Moore was made by the defendant; Kellogg & Harmon v. Nichols: Both plaintiffs are challenging Johnathan C. Nichols’ actions as a statutory licensing officer and the NY law under which he operates as to his denial of both Kellogg’s and Harmon’s applications for denial of carrying licenses. This lawsuit was brought on June 2, in the US District Court for the Northern District of New York; NSSF v. Bonta: This lawsuit was filed by NSSF on May 23, challenging the constitutionality of AB1594, titled the “Firearm Industry Responsibility Act,” that was signed into law only 22 days after Bruen was handed down by SCOTUS. On June 13, NSSF file a motion for a preliminary injunction.
Supreme Court of the United States
Currently there are fire (5) petitions for certiorari pending before SCOTUS on cases that have a nexus to the Second Amendment.
Stabilizing Braces
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, 2023. To date six Courts, including the US Court of Appeals for the Fifth Circuit have issued limited injunctions against this BATFE rule that became effective on June 1.
Texas Gun Rights v. BATFE: New complaint brought on June 6, in the US District Court for the Northern District of Texas. This is the fifth lawsuit filed on this issue in this Circuit.
Mock v. Garland: (Texas Northern District)—This case was brought by Firearms Policy Coalition on Jan. 31, asking for a setting aside of the ATF action and/or a preliminary injunction. On March 30, District Judge Reed O’Connor denied both requests of the plaintiffs. On that same date the plaintiffs requested a preliminary injunction of the rule pending appeal and filed an appeal to the US Court of Appeals for the Fifth Circuit. On May 17, the plaintiffs filed an Emergency Motion for Injunction pending appeal as “the Rule” became effective June 1, 2023. US Court of Appeals for the Fifth Circuit on May 23 issued an order granting the appellants’ opposed motion for a preliminary injunction. The court has clarified as to who this injunction actually covers: “only to the customers and members whose interest have represented since day one of the litigation.” Plaintiff-Appellants filed an opening brief on June 5. A responding brief from Michael Cargill was filed on June 7. Oral arguments are scheduled for June 29.
Definition of ‘‘Frame or Receiver’’ and Identification of Firearms, 87 Fed. Reg. 24,652
Division 80 LLC v. Garland: This case is a challenge to the ATF rule entitled “Definition of ‘‘Frame or Receiver’’ and Identification of Firearms”. Judge Jeffrey Vincent Brown of the US District Court for the Southern District of Texas issued an option and an order on June 12, granting the government’s motion for summary judgement and denying the plaintiff’s (Division 80 LLC) motion for an injunction.
BATFE regulation regarding 18-20 year old gun owners
Virginia: Fourth Circuit: Fraser v. ATF: This case concerning BATF’s regulation against those 18-21 years of age from purchasing firearms began in 2022. On May 10 Judge Robert E. Payne struck down the federal law banning FFLs from selling handguns to adults between 18 and 20 years of age and then On May 19, 2023 a new schedule was ordered — which has since been completed.
BATFE classification of short-barrel firearm
Firearms Regulatory Accountability Coalition (FRAC) and Franklin Armory v. BATFE: In January 2023 this suit was filed in US District Court for the Western District of North Dakota. The plaintiffs allege that the BATFE misclassified Franklin Armory’s FA!-15 Antithesis as a “short-barreled rifle (SBR)” under both the National Firearms Act (NFA) and the Gun Control Act (GCA). Since January the defendants have moved to dismiss and in April the plaintiffs made a motion for summary judgment. On May 5 BATFE sent a letter to Franklin Armory changing the classification of “the Reformation firearms to classify each as a “shotgun” under both the GCA and the NFA.” Prior to this letter these firearms were not considered NFA firearms. On June 1 plaintiffs notified the court of supplemental authority in Texas v. ATF and Mock v. Garland.
Lawsuits challenging “felon-in-possession” federal law 18 U.S.C. § 922(g)(1)
Pennsylvania: Third Circuit
Range v. Lombardo: In this precedential case the US Court of Appeals for the Third Circuit’s opinion issued on June 6 stated, “Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in- possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.”
Judge David Porter wrote a separate concurring opinion (found at the end of the opinion) that is well-researched and very thorough concerning Second Amendment jurisprudence.
State Law Challenges
California: Ninth Circuit:
Baird v. Bonta: This lawsuit was filed on April 9, 2019 seeking licenses to carry a firearm openly on or about their person. On Aug. 31, 2020 Judge Kimberly J. Mueller denied the plaintiffs motion for a preliminary injunction without prejudice and ordered plaintiffs to file any amended complaint. An amended complaint was filed on Sept. 21, 2020. After several delays a video conference hearing was held on July 16, 2021. On Dec. 17, 2021 Judge Mueller granted a stay of proceedings pending SCOTUS decision in Bruen. The stay was lifted on July 7, 2022 and a status conference was scheduled for July 28, 2022. On Dec. 8, 2022 Judge Mueller denied the Third Motion for a Preliminary Injunction and DISMISSED IN Part the Second Amended Complaint. The Plaintiff’s on Jan. 3, appealed to the Ninth Circuit Court of Appeals. During the first six months of 2023 various motions have been submitted and now Oral Argument is scheduled for June 29, Courtroom 1 in Pasadena, CA.
In an article from Duke Law about the two cases, Boland v. Bonta and Renna v. Bonta: challenging California’s Unsafe Handgun Act, Andrew Willinger discusses the two judges’ decisions. 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 two-week timeframe. On April 14 CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit; of Appeals and on May 12 California filed its opening brief with the Ninth Circuit in this lawsuit. Another amicus brief in support of Plaintiffs-Appellees with Stephen P. Holbrook as the Counsel of Record for Amici Curiae was filed June 2, 2023. The Ninth Circuit Court has scheduled Oral Arguments for Tuesday, Aug. 23 in San Francisco, CA.
NSSF v. Bonta: This lawsuit was filed by NSSF on May 23, challenging the constitutionality of AB1594, titled the “Firearm Industry Responsibility Act,” that was signed into law only 22 days after Bruen was handed down by SCOTUS. “Governor Newsom then signed AB 1594 into law on July 12, 2022, in an elaborate ceremony in which he explicitly decried the Supreme Court’s decision and implicitly told the world that the Golden State would not comply with Bruen unless forced to do so.” On June 13, NSSF file a motion for a preliminary injunction.
Connecticut: Second Circuit
We the Patriots USA v. Lamont: This lawsuit was filed on June 6, 2023against HB6667 that becomes law October 1, 2023, especially the prohibition of any person from “knowingly carry[ing] any firearm with intent display such firearm” and restricting their right to purchase firearms from any given dealer to no more than three guns in 30 days.
Oregon: Ninth Circuit
Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, & Azzopardi v. Rosenblum (the Oregon consolidated case): These case was initiated in November 2022 challenging Oregon’s Measure 114. On Dec. 6, 2022 Judge Karin J. Immergut denied a preliminary injunction. After the Oregon cases were consolidated case, the court granted the defendants’ (Oregon state) motion to continue postponing the enforcement of Measure 114’s permitting requirements. On May April 14, motions for a Preliminary injunction were denied as MOOT. On May 8 Azzopardi et. al. filed a motion seeking relief from Oregon’s “flat ban on firearm acquisition in the State” that they allege is likely to occur before a permitting system is instituted by the state by asking the Court for a declaratory judgement and injunctive relief. On May 15 the plaintiffs filed a Daubert motion, a motion seeking to exclude expert witness testimony, against several of the government’s witnesses. On May 26 Judge Immergut issued an order denying defendants’ motion for partial summary judgment and denying plaintiffs’ motion for summary judgment. The Trial was held June 5-6. On June 13 the Oregon Alliance for Gun Safety (intervenor-defendant) submitted a brief concerning the United States v. Alaniz, upholding the enhancement of sentencing guideline for possessing a dangerous weapon at the time of a felony drug offense.
New York: Second Circuit
Kellogg & Harmon v. Nichols: Both plaintiffs are challenging Johnathan C. Nichols’ actions as a statutory licensing officer and the NY law under which he operates as to his denial of both Kellogg’s and Harmon’s applications for denial of carrying licenses. This lawsuit was brought on June 2 in the US District Court for the Northern District of New York.
Illinois: Seventh Circuit
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: On May 12 US Court of Appeals for the Seventh Circuit issued a scheduling order: 1. Government briefs were submitted by June 5; 2. Briefs for plaintiffs were submitted; and 3. Reply briefs are due June 26. No Motions to extend dates will be entertained. Arguments will be on the morning of June 29. Judge Stephen Patrick McGlynn on April 28issued a temporary injunction against the new Illinois gun ban law, but on May 5, 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.
Maryland: Fourth Circuit
Novotny v. Moore: Before the ink had dried on Maryland Governor Wesley Moore’s signature on SB1, the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Maryland Shall Issue (MSI) and three individuals filed a lawsuit challenging the constitutionality of the new Maryland law. SAF Executive Vice President Alan.Gottlieb alleged, “Maryland lawmakers scrambled to make gun laws more restrictive than they were before. Indeed, the additional restrictions make it nearly impossible to legally carry firearms for personal protection, even on public land.” On June 9, a motion to consolidate Novotny v. Moore and Kipke v. Moore was made by the defendants.
