By Tanya Metaksa
What’s New—BATFE proposed rule deadline approaching; FRAC v. Garland: An appeal to the US Court of Appeals for the Eighth Circuit has been filed; California: Big Win in Miller v. Bonta, the assault weapons ban case; Duncan v. Bonta: Briefing schedule before the US Court of Appeals for the Ninth Circuit;Colorado Tenth Circuit: Rocky Mountain Gun Owners v. Polis: On Oct. 5, the preliminary injunction hearing was postponed from Oct. 24 to Oct. 26 at 9:30 a.m. before Judge John L. Kane in Courtroom A802 on the 8th Floor of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado; Minnesota: Worth v. Harrington: During July and August opposing briefs have been filed in the US Court of Appeals for the Eighth Circuit; New Jersey-Third Circuit: Siegel v. Platkin: Today this case will be argued before the Third Circuit meeting in Philadelphia; New Mexico-Tenth Circuit: We The Patriots v. Grisham: The Plaintiffs have filed a Notice of Appeal to the US Court of Appeals for the Tenth Circuit on Oct. 20.
Biden Administration
BATFE proposed rule published: new “Definition of ‘Engaged in the Business’ as a Dealer in Firearms”
NPRM 2022R-17 Public Comments nearing deadline
The deadline for submitting Public Comments is December 12, 2023 at midnight. may be made by mail.
Mail: Helen Koppe, Mail Stop 6N–518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington, DC 20226; ATTN: ATF 2022R–17
Or submitted to Federal eRulemaking Portal: www.regulations.gov.
Background: Using the BiPartisan Safer Communities Act of 2022 as a mandate, BATFE on Sept. 9 published the new rule. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL.
Lawsuits challenging Federal Agencies:
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 back on Jan. 31. 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. And on Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
FRAC v. Garland: The Plaintiff appealed to the US Court of Appeals for the Eighth Circuit on Oct. 10, with a motion for inunction Pending Appeal. Last Friday, the Department of Justice (DOJ) responded suggesting that the “Rule is lawful, and the public interest in clarifying statutory requirements for weapons that Congress deemed particularly dangerous outweighs any minimal harms plaintiffs assert.”
Background: This lawsuit was filed on Feb. 9 in the US District Court for the Western District of North Dakota andamong the plaintiffs and includes Attorneys General from 25 states among the plaintiffs. On Feb. 26 those Attorneys General sought a preliminary injunction. On Sept. 12 Judge Daniel L. Hovland denied the motions for a Preliminary Injunction and for an oral argument. Then on Oct. 12, Judge Hovland additionally denied the motion for injunction pending appeal.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Miller v. Bonta: Judge Roger Benitez wrote:
“The American tradition is rich and deep in protecting a citizen’s enduring right to keep and bear common arms like rifles, shotguns, and pistols. However, among the American tradition of firearm ownership, there is nothing like California’s prohibition on rifles, shotguns, and handguns based on their looks or attributes. Here, the “assault weapon” prohibition has no historical pedigree and it is extreme. Even today, neither Congress nor most states impose such prohibitions on modern semiautomatic arms. In contrast, laws that punish criminal acts committed with any gun, like the crime of assault with a deadly weapon, remain perfectly constitutional. Those criminal laws are not at issue here.”
Judge Benitez then ruled in favor of the plaintiffs. He then stayed his ruling in order to give the Attorney General ten days in order to seek a stay from the US Court of Appeals for the Ninth Circuit.
Attorney General Bonta appealed immediately on Oct. 23 with an Emergency Motion for a Stay Pending Appeal and for an Interim Administrative Stay. The relief was requested by Oct. 29. US Court of Appeals for the Ninth Circuit will assuredly be considering this case. Duncan v. Bonta: Briefing schedule for the en banc panel—Appellants (CA DOJ) brief Nov. 21, and Duncan (CA gun owners) brief on Dec. 21.
Background: The 9th Circuit en banc on Oct. 10 stayed Judge Benitez’ injunction against CA’s magazine ban while the state’s appeal continues, They began by writing, “First, we conclude that the Attorney General is likely to succeed on the merits.” Then they agreed with AG Bonta that “California indisputably will face an influx of large-capacity magazines like those used in mass shootings.” Four judges dissented.
Colorado Tenth Circuit
Rocky Mountain Gun Owners v. Polis: On Oct. 5, the preliminary injunction hearing was postponed from Oct. 24 to Oct. 26 at 9:30 a.m. before Judge John L. Kane in Courtroom A802 on the 8th Floor of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado
Background: On Aug. 7, the day before SB169 was to become effective, Judge Philip A. Brimmer granted the plaintiffs, Tate Mosgrove and Adrian S. Pineda, both of whom areolder than 18, but younger than 21, a preliminary injunction against the enforcement of SB169. Additionally the state of Colorado is enjoined, effectively immediately from enforcing SB169. The preliminary injunction remains in effect pending disposition of the case on its merits. On Aug. 21, Governor Polis filed an emergency motion to stay the District Court’s preliminary injunction pending appeal. However, his emergency motion for a stay pending appeal was denied.
Minnesota: Eight Circuit
Worth v. Harrington: During July and August opposing briefs have been filed in the US Court of Appeals for the Eighth Circuit.
Background: Minnesota’s 2003 Citizens’ Personal Protection Act required applicants to be “at least 21 years of age.” In this case three plaintiffs under the age of 21 brought suit against their respective sheriffs for enforcing the Minnesota statute. Judge Katherine Menendez on March 31 stated that Minnesota Law requiring “a person must be at least 21 years of age to receive a permit to publicly carry a handgun in Minnesota violates the rights of individuals 18-20 years old to keep and bear arms protected by the Second and Fourteenth Amendments.” As of April 1 Judge Menendez put a hold on entering final judgement until the MN AG’s emergency order is ruled upon. The Plaintiffs filed their response to a stay on April 5. On April 24 Judge Menendez GRANTED the Commissioner’s Motion for a Stay.
New Jersey: Second Circuit:
Siegel v. Platkin: Today this case will be argued before the Third Circuit meeting in Philadelphia. You can listen in on the court’s live stream audio on YouTube at approximately 11:00 a.m. on Wednesday October 25, by clicking here. From ANJRPC:
“Gun owners will recall that, after Judge Bumb’s historic ruling in the lower court earlier this year granting an injunction blocking large portions of the carry-killer law, the State appealed to the middle level federal court, seeking to reinstate the law. At the request of the State, the appeals court partially suspended the lower court’s injunction for the duration of the State’s appeal, thereby reinstating large swaths of the carry-killer law. ANJRPC simultaneously sought to expand the court’s injunction to block more of the carry-killer law. At tomorrow’s hearing, the parties will make their various arguments to the court, which will render a decision at a later date.”
New Mexico: Tenth Circuit:
We The Patriots USA Inc. v. Grisham: The following cases have been consolidated as of Oct. 10: National Association For Gun Rights et al v. Grisham et al, No. 1:23-cv-00771; Donk et al v. Grisham, No. 1:23-cv-00772; We the Patriots USA Inc. et al v. Grisham et al, No. 1:23-cv-00773; Blas v. Grisham et al, No. 1:23-cv-00774; Fort et al v. Grisham et al, No. 1:23- cv-00778; and Anderson v. Grisham et al, No. 1:23-cv-00839. The Plaintiffs have filed a Notice of Appeal to the US Court of Appeals for the Tenth Circuit on Oct. 20.
Background: On Sept. 7, New Mexico Governor Michelle Lujan Grisham (D) declared a health emergency and on Sept. 8 she declared that it would now be illegal to carry a gun open or concealed including those with valid permit in any area where violent crime is above a certain percentage of the population, banning firearms in Albuquerque and Bernalillo Counties. On Oct. 2 Gov. Grisham amended the original order to just ban the carrying of firearms in parks and playgrounds. On Oct. 6, as a result of Governor Grisham’s amended health order a motion for temporary restraining order and preliminary injunction was filed against the new health order. Judge Urias DENIED their Oct. 6 motion.
