By Tanya Metaksa
What’s New—SCOTUS: National Rifle Association v. Vullo: Oral arguments set for Monday, March 18; United States v. Cherry: This case is about the felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On Feb. 1, Judge Staci M. Yandle granted Bernard L. Cheery’s motion to dismiss the indictment and terminate all other motions; California: Rhode v. Becerra/Bonta: On Jan. 30, Judge Roger Benitez issued his decision that “The ammunition background checks laws have no historical pedigree and operate in such a way that they violate the Second Amendment right of citizens to keep and bear arms.” As a result there were 4 days in which Californians could purchase ammunition without a background check. On Feb. 5 the motions panel of the US Court of Appeals for the Ninth Circuit granted Attorney General Rob Bonta’s motion for a stay; May v. Bonta & Carralero v. Bonta: Oral argument has been scheduled for April 11.. Amicus briefs were submitted by March for our Lives, Everytown for Gun Safety, and the District of Columbia three of the twenty amici listed; Maryland Shall Issue v. Anne Arundel County, Maryland: On Feb. 5, the plaintiffs filed a petition for Rehearing and for Rehearing En Banc; New Mexico: Springer v. Grisham: Gov. Michelle Lujan Grisham’s appeal of Judge Riggs Preliminary Injunction against part of the Governor’s public health emergency that has been renewed each month since September 2023 and they have now filed a motion in US Court of Appeals for the Tenth Circuit to stay the injunction; United States v. Metcalf: Gabriel Cowan Metcalf was charged with violating 18 U.S.C. §922(q)(2)(A)- Unlawful Possession of a Firearm in a School Zone. Judge Susan P. Watters denied Metcalf’s motion to dismiss an indictment for carrying a firearms in a school zone within 1000 feet of a school;
SCOTUS
National Rifle Association v. Vullo: Oral arguments set for Monday, March 18.
The Counsel of Record is Eugene Volokh, well known to most people in the firearms and Second Amendment Community. Assisting Mr. Volokh will be a litigator from the ACLU since this case is not a Second Amendment case, but a case dealing with First Amendment issues. The question to be resolved is:
Case: 22-842 SCOTUS has granted certiorari on the following question: “Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?”
Seven amicus briefs representing 40 individuals and organization, including the ACLU, were filed in support. One of the briefs in opposition to the granting of certiorari by SCOTUS was filed by Marie T. Vullo.
Background: NRA v. Vullo isa first amendment claim against New York’s Department of Financial Services (DFS). In 2010, Andrew Cuomo was elected Governor of New York. His brand of politics included a dislike for the Second Amendment and when he was NY Attorney General he appointed Maria Vullo, as Deputy Attorney General in his office. Then as Governor he appoint Vullo as Superintendent of NYS Department of Financial Services (DFS) in 2016.
In October 2017, she opened an investigation into the NRA supported insurance program called “Carry Guard.” Shortly after her initial inquiries the three insurance companies that underwrote or administered Carry Guard signed an agreement to stop providing this product. Carry Guard was effectively dead. Vullo should have been satisfied with her victory.
In April 2018 Gov. Cuomo issued a press release with the headline, Governor Cuomo Directs Department Of Financial Services To Urge Companies To Weigh Reputational Risk Of Business Ties To The NRA And Similar Organizations. In this press release, Vullo was quoted as saying “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”Vullo then issued a “Guidance letter” castigating the NRA and suggesting that insurance companies might face consequences doing business with the NRA. After the issuance of the “Guidance letter” Vullo signed consent agreements with the targeted insurance companies who agreed not to do business with the NRA and paid fines that totaled more than $13 million.
On May 11, 2018, the NRA filed its original lawsuit against both Cuomo and Vullo seeking a jury trial and damages. U.S. District Judge Thomas J. McAvoy upheld the NRA’s First Amendment Claim on Nov. 6, 2018. After motions on both sides on March 15, 2021, Judge McAvoy ruled in favor of NRA. The state of New York then filed an appeal to the US Court of Appeals for the Second Circuit which struck down Judge McAvoy’s order. On Feb. 7, 2023, NRA sought certiorari with SCOTUS.
CIRCUIT COURTS
California: Ninth Circuit
Rhode v. Becerra/Bonta: On Jan. 30, Judge Benitez issued his Decision that “The ammunition background checks laws have no historical pedigree and operate in such a way that they violate the Second Amendment right of citizens to keep and bear arms.” As a result there were 4 days in which Californians could purchase ammunition without a background check. On Feb. 5 the motions panel of the US Court of Appeals for the Ninth Circuit granted Attorney General Rob Bonta’s motion for a stay.”
Background: This case began in 2016 as Rhode v. Becerra. The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. Three gold medals, 1 Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez and then that court vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. All restrictions on purchasing ammunition in California that have been in effect for almost five years still remain
May v. Bonta & Carralero v. Bonta: Oral argument has been scheduled for April 11. The following amici were added by the state of California: District of Columbia, State of Illinois, State of Connecticut, State of Delaware, State of Hawaii, State of Maryland, State of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New York, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Washington, Northern Mariana Islands, Everytown for Gun Safety, and March for Our Lives.
Background: After the passage of SB2, a Bruen-response bill creating “sensitive places” where firearms are not allowed, this lawsuit was initiated on Sept. 12, 2023. Plaintiffs include CRPA, GOA, SAF and others. On Oct. 3, a court hearing rescheduled for Dec. 20, 2023. On Nov. 21, CRPA Attorney Kostas Moros (@MorosKostas on X (formerly known as Twitter) informed his followers that a reply brief had been filed. He goes on to write“We’ve also submitted a rebuttal expert declaration which includes an appendix pointing out how California took several historical laws out of context, or otherwise mischaracterized them in their opposition brief.”
Dec. 30, 2023: US Court of Appeals for the Ninth Circuit 3-judge Motions panel, stayed the District Court’s injunction in the combined cases of Carralero v. Bonta and May v. Bonta. Then they sent it to a “merits” panel for further adjudication. Thus on Jan. 1, SB2 went into effect which prohibited those with carry permits from carrying in “specific sensitive places”. There are very few places in the state that are NOT specific sensitive places under that law. On Jan. 6 the Merits panel reinstated the injunction that had been ordered by District Judge Cormack J. Carney and denied the state of California’s motion for a stay. Californians with carry permits are now no longer prohibited from carrying firearms in the same manner they were able prior to Dec. 30.
Gavin Newsom v. B&L Productions: Brief Of Amici Curiae Citizens Committee For The Right To Keep And Bear Arms and Independence Institute In Support Of Appellees And Affirmancehas been submitted in this case and is authored by Second Amendment scholar Dave Kopel.
Background: B&L Productions v. Newsom: B&L Productions (Crossroads of the West), California Rifle & Pistol Association, et al., filed a lawsuit in federal court in 2022 challenging state bill SB 264, banning gun shows by prohibiting the sale of firearms, firearms parts and ammunition at the Orange County Fairgrounds. Two years after the lawsuit was filed, Judge John W. Holcomb, US District Court for the Central District of California, granted the Plaintiffs motion for a preliminary injunction and enjoined the state from enforcing the statute. Judge Holcomb wrote that California’s ban on gun shows at the Orange County Fairgrounds and on state-owned property likely violate the First and Second Amendments.
Maryland: Fourth Circuit
Maryland Shall Issue v. Anne Arundel County, Maryland: On Feb. 5, the plaintiffs filed a petition for Rehearing and for Rehearing En Banc.
Background: In 2022, Anne Arundel County commissioners passed an ordinance requiring gun shop owners to provide literature to firearms customers regarding suicide prevention and nonviolent conflict resolution. Maryland Shall Issue, a gun rights group challenged the ordinance as unlawful compelled speech under the First Amendment of the United States Constitution. On March 21, 2023, Judge Stephanie A. Gallagher denied plaintiff’s motion for summary judgement. An appeal to the US Court of Appeals for the Fourth Circuit was filed on March 26, 2023. On Jan. 23, a three-judge panel of the US Court of Appeals for the Fourth Circuit affirmed the ruling of the District Court.
Montana: Ninth Circuit
United States v. Metcalf: Gabriel Cowan Metcalf was charged with violating 18 U.S.C. §922(q)(2)(A)- Unlawful Possession of a Firearm in a School Zone. Judge Susan P. Watters denied Metcalf’s motion to dismiss an indictment for carrying a firearms in a school zone within 1,000 feet of a school. She cited restrictions on guns near polling places as her historical antecedents that supported the federal law, although the government never utilized that analogy.
New Mexico: Tenth Circuit
Springer v. Grisham: This case did not become incorporated in the other seven lawsuits that were consolidated under Judge David H. Urias. Now it is before the US Court of Appeals for the Tenth Circuit and on Feb. 2, Gov. Grisham filed a motion for a stay from Judge Riggs order. As a point of interest the lawyers who wrote the motion were Janet Carter and William J. Taylor, Jr. Everytown Law (the legal arm of Michael Bloomberg’s Everytown anti-gun lobbying firm in New York).
Background: On Sept. 12, 2023, James Springer filed a notion in US District Court for the District of New Mexico seeking injunctive relief, and emergency requests for a temporary restraining order and a request for a permanent injunction against Gov. Grisham’s emergency gun orders. After Judge Urias was assigned to this case, plaintiff Springer requested that Urias recuse himself from the case. On Oct. 2, 2023, Judge Urias granted the motion for recusal and Judge Kea W. Riggs was appointed. On Dec. 5, 2023 Judge Riggs entered a preliminary injunction enjoining the public health order that affected the carrying of firearms in public parks in Bernalillo County and Albuquerque, New Mexico, but declined to enjoin the public health order when it prohibited firearms in playgrounds. On Dec. 12, 2023, both the plaintiff, Springer, and the defendant, Gov. Grisham, appealed to the US Court of Appeals for the Tenth Circuit. However, Gov. Grisham, filed an emergency motion for stay pending appeal, which was denied by Judge Riggs on Jan. 22.
DISTRICT COURTS
Illinois: Seventh Circuit
United States v. Cherry: On February 1, 2024 Judge Staci M. Yandle granted Bernard L. Cheery’s motion to dismiss the indictment and terminate all other motions.
Background: Defendant Bernard Cherry was charged with a felony at age 17 and has served his sentence.
Cherry is charged by indictment with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and has pleaded not guilty (Docs. 1,11).
New York: Second Circuit
Higbie v. James: On February 5, 2024 Gun Owners of America (GOA) and the Gun Owners Foundation (GOF) filed a federal lawsuit in the Northern District of New York, challenging the state’s blanket ban on out-of-state residents being able to obtain a concealed carry permit or to have New York honor out-of-state permits. Current New York law limits Right-to-Carry Permits to New York State residents only, Reciprocity is not even considered resulting in New York being the only state in the USA where nonresidents can drive with an out-of-state driver’s license, but cannot exercise their Second Amendment rights. As of Feb. 6, this case was assigned to Judge Suddaby of Antonyuk fame.
