By Tanya Metaksa
What’s New—SCOTUS: Arguments scheduled in February and March 2024—Garland v. Cargill Oral arguments scheduled for Feb. 28, and National Rifle Association v. Vullo: Oral arguments set for Monday, March 18; Several cases have filed for writs of certiorari before SCOTUS: Bianchi v. Brown, Garland v. VanDerStok, Bevis v. City of Naperville, and Harel v. Raoul; Feb. 13, oral arguments were held forWorth v. Harrington; Baughcum v. Jackson: US Court of Appeals for the Eleventh Circuit Reversed the District Court and gave 18-20-year-olds the right to own and carry firearms.
SCOTUS
Arguments scheduled in February and March 2024
Garland v. Cargil: Case No. 22-976. Cert. Granted 11/3/2023. This casehas an argument date of Feb. 28, 2024, and Cargill filed his response brief on the bump stock ban on January 22, 2024. Question presented: “Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot * * * by a single function of the trigger.”
Background: The lawsuit challenges the DOJ’s classification of “bump stocks” as machine guns. The case was initiated in 2019 and the District Court ruled in favor of the DOJ. Then Cargill appealed to the US Court of Appeals for the Fifth Circuit, which decided on March 6, 2023, in favor of the plaintiff:The Final Rule’s interpretations of terms within the statutory definition of “machinegun,” which includes bump stocks and bump-stock-type devices, are unreasonable and conflict with the statute. 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 on April 6. On April 14, the plaintiffs requested that the Circuit Court continue the stay until May 16, 2023. After six months of delay, it was scheduled for a conference on Sept. 26, but on Sept. 20 it was rescheduled for 10/6/2023. The Case before SCOTUS was distributed for conference on 10/27/23.
National Rifle Association v. Vullo: Case No. 22-842. Oral argument is 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 following cases have filed certiorari before SCOTUS
Fourth Circuit:
Bianchi v. Brown: Case No. #23-863. On Feb. 8, a petition for writ of certiorari was filed. The attorney is from the law firm of Cooper & Kirk, in Washington DC.
Background: This is a case against Maryland’s “assault weapons” ban law brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, and the Firearms Policy Coalition on Dec. 1, 2021, in the US District Court for the District of Maryland. It was dismissed on March 4, 2021, and was appealed to the U.S. Supreme Court. After the Bruen decision, SCOTUS vacated and remanded the case back to the Fourth Circuit. It was reopened on Aug. 1, 2022 and oral arguments were held on Dec. 6, 2022. Thirteen months after oral arguments were heard, the US Court of Appeals for the Fourth Circuit issued an Order on Jan. 12, “that rehearing en banc is granted.” The Court continued, “This case is tentatively calendared for oral argument during the next available argument session.”
Fifth Circuit
Garland v. VanDerStok: Case No. 23-10718 This petition has been brought by the United States Department of Justice. The judgment of the court of appeals was entered on Nov. 9, 2023. The petition was filed on Feb. 7, with a response due by March 8.
VanDerStok v. Garland: On November 16, 2023, the Plaintiffs-Appellees, the parts manufacturers in the lawsuit, filed a joint Motion for immediate issuance of the Mandate, asking the Circuit Court to send the case back to the District Court who is responsible for issuing the remedy for the manufacturers who are losing their businesses due to the ATF regulation. Four days later the Fifth Circuit granted their motion and requested the parties to meet and issue a joint report by December 4, 2023. Therefore Judge O’Connor will be issuing an updated order. Hopefully, issuing the Mandate speeds up the process for the Plaintiffs-Appellees.
Background: This lawsuit against the BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” as firearms was filed in the United States District Court for the Northern District of Texas in August 2022. On June 30, 2023, Judge Reed O’Connor issued an order VACATING the final rule. The Department of Justice (DOJ) appealed to the US Court of Appeals for the Fifth Circuit. On July 24 they DENIED DOJ’s motion to stay O’Connor’s Vacatur. DOJ then appealed to SCOTUS for a STAY of the Fifth Circuit’s order. On Aug. 8 SCOTUS in a 5-4 vote issued a stay of Judge O’Connor’s “global” vacatur that applied to all entities nationwide.
The plaintiffs filed an emergency motion for a Preliminary Injunction against the Rule on Aug. 9 and 14 in the District Court. Judge O’Connor issued an order granting injunctive relief for the plaintiffs on Sept. 14. The US Court of Appeals for the Fifth Circuit held oral arguments on Sept. 7 and on Oct. 2 issued another unpublished order that vacated the District Court order as to nonparties, but it Denied the DOJ motion to stay the District Court’s injunction that was issued on Sept. 14. On Oct. 5 DOJ appealed to SCOTUS to vacate the District Court’s September 14 injunction against the Rule as it applied to the original plaintiffs, Defense Distributed and BlackHawk Manufacturing.
On Nov. 9, 2023, the US Court of Appeals for the Fifth Circuit enjoined the ATF Frames and Receiver rule.
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will. Accordingly, for the reasons set forth below, we AFFIRM IN PART and VACATE AND REMAND IN PART the judgment of the district court.”
The Fifth Circuit affirmed the District Court’s order that enjoined ATF from enforcing the regulation against Defense Distributed and BlackHawk Manufacturing and their customers. They vacated the District Court’s order of a Preliminary Injunction against ATF since during the trial the Fifth Circuit judges asked ATF if they were going to enforce the new regulations against the customers and ATF testified that they would not. This ruling allows the plaintiffs to stay in business and the customers to keep their purchased items. Then they remanded the case back to the District Court. It is important to note that the District Court must do something, as after their next order, the ultimate decision will be with SCOTUS, not the inferior courts. On Sept. 14, 2023, SCOTUS wrote that the original District Court rulings are: “stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically.”
Seventh Circuit
Bevis v. City of Naperville: Bevis & National Association for Gun Rights v. Naperville: On Dec. 14, 2023, SCOTUS did not issue a temporary injunction against the Protect Illinois Communities Act (PICA).
Background:On Nov. 27, 2023 NAGR submitted an application for a writ of injunction to Justice Amy Coney Barrett, to which she replied by issuing an order that directed the defendants in this case, including the state of Illinois, to submit an argument or a brief explaining why an injunction should not be entered that would shut down Illinois’s assault weapon ban law. In December 4 the defendants filed their brief. On the next day the appellants responded with their arguments which include: “The State admits that the Act bans certain semi-automatic handguns. Resp. 30. This is fatal to the State’s case because D.C. v. Heller, 554 U.S. 570, 629 (2008), held that handgun bans are unconstitutional. The State argues its handgun ban should nevertheless survive because “Heller did not say anything about semiautomatic handguns in particular.” Resp. 30.2. But “[t]he vast majority of handguns today are semi-automatic.” Heller v. D.C., 670 F.3d 1244, 1286 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). And it would be truly astonishing if Heller’s holding that handgun bans are unconstitutional does not apply to the vast majority of handguns. Nothing in Heller even hints that its holding should be cabined in the way the State suggests.”
For more background on this case please check out this Judicial Report.
Harrel v. Raoul and Barnett v. Raoul: This case was filed on Jan. 17, 2023
, by the Second Amendment Foundation, Firearms Policy Coalition, Marengo Guns, Inc., C4 Gun Store and David Harrel against the large capacity magazine ban that was signed by Gov. Pritzker on that date. On Jan. 25, Plaintiffs filed a motion for a preliminary injunction (PI). After several motions for delays, all parties reached an agreement on a motion for a coordinated preliminary injunction briefing adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly in US District Court for the Southern District of Illinois. On April 28 Judge Stephen Patrick McGlynn issued a preliminary injunction preventing enforcement of PICA. He wrote “PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.” He enjoined enforcing PICA.
US Court of Appeals for the Seventh Circuit: Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Barnet v. Raoul: In a 2-1 (with Judges Easterbrook and Wood) in the majority, the US Court of Appeals for the Seventh Circuit vacated the District Judges Preliminary Injunction. Judge Brennan wrote a 44 page dissent.
CIRCUIT COURTS
Minnesota: Eighth Circuit
Worth v. Harrington: docket #-0:21-cv-01348. On Feb. 13, 2024 oral arguments were held before the US Court of Appeals for the Eighth Circuit and the hearing appeared to favor the original plaintiffs.
Background: This case was filed in June 2021 by young adults ages 18-20 seeking to overturn Minnesota law that denied them the ability to carry firearms outside the home. On March 31, 2023, Judge Katherine Menendez granted in part the Plaintiffs’ motion for summary judgment and found that Plaintiffs were entitled to declaratory and injunctive relief.Judge Menendez also granted a stay of her order at the same time.
Georgia: Eleventh Circuit
Baughcum v. Jackson: Case: 22-13444. After 15 monthsthe US Court of Appeals for the Eleventh Circuit did the correct thing and “REVERSED IN PART AND AFFIRMED IN PART. The matter is REMANDED for proceedings consistent with this opinion.”
Background: This is a case challenging Georgia’s denial of the right to carry a loaded handgun to those citizens 18-20 years of age. An opinion was issued on Oct. 6, 2022, declaring the case moot since the passage of GCA. The plaintiffs had challenged their local probate judges who no longer issued concealed carry licenses. On March 24, 2023, the plaintiffs filed a petition for a hearing en banc with the US Court of Appeals for the Eleventh Circuit.
STATE COURTS
State v. Wilson: The Hawaii Supreme Court not only overwrote Bruen, but proceeded to vilify the United States Supreme Court. Attorney Konstadinos Moros (@MorosKostas) of Michel & Associates summed it up bluntly when he tweeted ”Sounds like the Hawaii Supreme Court doesn’t even want to be a part of the United States, in this rejection of not just the Second Amendment but their culture and understanding of the Constitution…So to be clear, in its analysis of the Hawaii right to bear arms provision, which is identical to the federal one and was adopted by the Hawaii legislature in 1950, the Hawaii Supreme Court looks to the history of Hawaii when it was a foreign nation.”
Additionally, reason.com has had two very good articles on this case: 1. Hawaii’s Supreme Court Insists There Is No Individual Right to Arms and 2. Stephen Halbrook’s Second Amendment Roundup: The Hawaii Supreme Court Overrules Bruen.
