By Tanya Metaksa
What’s New—On June 28 and 29 cases we have been reporting on were argued live: Lara v. Evanchick—6/29 at 9:30 am EDT here and Harrel v. Raoul—6/29 at 9:30 am CDT here, Also 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, 2023, plaintiff’s briefs have been submitted and arguments were held on the morning of June 29; The Fifth Circuit Court—Mock v. Garland (stabilizing braces) Oral arguments were held on June 29; Baird v. Bonta: A hearing was held before the Ninth Circuit Court in Pasadena, CA on June 29; VanDerStok v. Garland: On June 30, 2023 Judge Reed O’Connor issued a Memorandum Opinion and Order. The Opinion VACATED the US government’s final rule on the definition of frame or receiver; One of the three petitions for certiorari before SCOTUS, United States v. Rahimi, was granted on June 30,; NRA v. ATF: On July 3, the NRA filed a motion against ATF’s Final Rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’.”
Supreme Court of the United States
Now there are two. One of the three petitions for certiorari before SCOTUS, United States v. Rahimi, was granted on June 30, 2023. The two cases awaiting a decision are KCI v. Eighth Judicial District (firearms magazines, scheduled for conference in Sept. 2023) and Garland v. Cargill (bumpstocks).
United States v. Zackey Rahimi: This is a case of a man who was involved in five shootings in and around Arlington, Texas between Dec. 2020 and Jan. 2021. He was also under an agreed civil protective order that expressly prohibited him from possessing a firearm and then he was indicted for a violation of U.S.C§ 922(g)(8). The US Court of Appeals for the Fifth Circuit held that when Rahimi was charged with violating U.S.C§ 922(g)(8) he was not a felon so he was not prohibited from owning firearms. Attorney General Merrick Garland on March 18 announced that the DOJ would be filing certiorari (an appeal) with SCOTUS and asking the Supreme Court to keep the federal law in place while they review the Fifth Circuit’s findings. Since that date several notable people and groups have filed amicus curiae: Governor Gavin Newson, Texas Advocacy Project, New York County Lawyers Association, State of Illinois, Joshua Horwitz, Tarrant County Criminal District Attorney and a coalition of Gun Violence and Domestic Violence Prevention Groups. The Gun Violence information is on the Giffords website and the amicus brief is also available there. We expect many more amici curiae will be filed before the 2023-2024 US Supreme Court hears this case.
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
VanDerStok v. Garland: On June 30, 2023 Judge Reed O’Connor issued a Memorandum Opinion and Order. The latest ruling in VanDerStok is a huge blow to President Biden’s efforts to unilaterally tighten gun regulations through ATF rule making rather than legislation.
The Opinion that VACATED the final rule reads: “This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968. Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule, Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.” In all probability the US DOJ will appeal this to the US Court of Appeals for the Fifth Circuit
Background: On March 2, 2023 Judge Reed O’Connor issued a preliminary injunction that granted Defense Distributed, a manufacturer of gun parts, the right to keep manufacturing those parts, thus denying BATFE the right to enforce their new rule concerning what parts are considered a firearm receiver. Judge O’Connor’s opinion has evolved from September when he ruled that the “definition of a firearm in the Gun Control Act does not cover all firearms parts” and granted a preliminary injunction to plaintiff Tactical Machining, followed by a Nov. 2 opinion granting the Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 granting BlackHawk Manufacturing Group’s motion for a preliminary injunction.
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, 2023.
NRA v. ATF: On July 3, the NRA filed a motion against ATF’s Final Rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’.” Although the NRA is late to this effort, it is not surprising that they have felt the heat from members as other cases have resulted in injunctions that have been issued for their memberships. The reasoning is spelled out: “Because of the Final Rule, the millions of Americans, including many of the nearly 350,000 NRA members in Texas and over four million members nationwide, who own a pistol and a stabilizing brace, regardless of style or caliber or type of brace, must either dispose of, alter, or register their firearms. Otherwise, they face the prospect of 10 years in prison, and large fines.” The case was filed in the US District Court for the Northern District of Texas.
Mock v. Garland: (Texas Northern District)—On June 29 the US Court of Appeals for the Fifth Circuit held oral arguments on June 29. Listening to the transcript of the session it appeared that the District Judges were genuinely interested in the arguments of the plaintiffs and allowed all lawyers time to make their case. The transcript can be found here.
Background: This case was brought by Firearms Policy Coalition on Jan. 31, asking for a Vacatur 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. Oral arguments were held June 29.
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 a well-researched and very thorough concerning Second Amendment jurisprudence. Worth a read.
Lawsuits challenging State Laws
New York: Second Circuit
New York’s gun law, the Concealed Carry Improvement Act, passed after the Bruen decision, includes places of worship as “sensitive places” where the carrying of firearms is prohibited. Three of the four cases at the District Court level dealing with this facet of the law had already been decided in favor of the plaintiffs: Antonyuk v. Nigrelli, Hardaway v. Nigrelli, and Spencer v. Nigrelli. However, on June 28, Judge Vernon Broderick in Goldstein v. Hochul denied the synagogue’s request for a preliminary injunction. Broderick’s conclusion that laws passed between 1870 and 1889 were “sufficient historical record to support” the idea that it is constitutional to ban weapons in places of worship. Judge John Sinatra’s (Western District of New York) conclusion in his injunction in Spencer v. Nigrelli disagreed with Broderick writing “no proper analogy to sensitive places exists in this case. And the Nation’s history does not countenance such an incursion into the right to keep and bear arms across all houses of worship across the state. The right to self-defense is no less important and no less recognized at these places.”
On May 3, the NY legislature passed a “clean-up” law that included allowing for “those persons responsible for security at such place of worship” and amending the “public park” section to be exempt from criminal possession of a firearm. Thus, allowing carrying in places of worship by people responsible for security.
All these cases are currently before the US Court of Appeals for the Second Circuit.
California: Ninth Circuit:
Baird v. Bonta: 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 January 3, 2023 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.
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. 2023 NSSF file a motion for a preliminary injunction.
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 were due June 26. Arguments were heard June 29.
Harrel v. Raoul: The deadline for filing amicus (friend of the court) briefs was June 26 and according to the Chuck Michel, President & Senior Legal Counsel for the 2nd Amendment Law Center (2alc.org), “Second Amendment Law Center has been working hard to coordinate amicus briefs from a wide variety of groups including law enforcement, states, scholars, and experts.” Among those filing amicus briefs are:
The States of Idaho, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Utah, Virginia, West Virginia, and Wyoming (This is huge! 24 States!).
International Law Enforcement Educators and Trainers Association, Law Enforcement Legal Defense Fund, National Association of Chiefs of Police, Second Amendment Law Center, Gun Owners of California, California Rifle & Pistol Association, State Line Rifle Association, Dewitt County Sportsman’s Club, American Firearms Association, D.C. Project Foundation, Operation Blazing Sword, and Liberal Gun Club
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.
Lawsuits before State Courts
Washington: Guardian Arms v. Inslee: This lawsuit seeking a preliminary injunction against the new “assault weapons” ban was filed in Grant County, but at a hearing on May 12 the judge ruled in favor of the state of Washington’s motion to move the case toThurston County. A hearing was held in Thurston County on June 23 and “Judge Allyson Zipp rejected a request in Guardian Arms v. Inslee to grant a temporary restraining order blocking the implementation of House Bill 1240.”
