By Tanya Metaksa
What’s New—SCOTUS: Conference scheduled for May; Hawaii: Nelson v. Honolulu: Permanent Injunction ordered to ensure applicants for Right-to-Carry Permits get a decision within 120 days; California: USA v. Steven Duarte: Question of the constitutionality of 597 U.S. 1 (2022), § 922(g)(1); CRPA, et al. v. LA County Sheriff’s Department informed the judge about the USA v. Steven Duarte and the Nelson v. Honolulu cases; Nguyen v. Bonta: State of California files opening brief in US Court of Appeals for the Ninth Circuit; USA v. Robert Hunter Biden: Case#:1:23-cv-00061-MN: Judge Maryellen Noreika denied Biden’s motion to dismiss the charges.
SCOTUS
Conferences are scheduled for May 16, 23, and 30. The orders from each conference will be issued on the following Monday at 7 a.m. EDT—May 20, 28, and June 3.
As of May 13, 2024, SCOTUS DENIED certiorari in several § 18 U.S.C. 922(g)(1) cases and Jean-Baptiste v. City of New York.
Several cases will be distributed for the conference on the remaining scheduled dates.
Court of Appeals
California: Ninth Circuit
USA v. Steven Duarte, AKA Shorty: Case No. 22-50048: In a 2-1 decision, the three-judge panel ordered Steven Duarte’s conviction vacated.
“The panel held that under New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to Duarte, a non-violent offender who has served his time in prison and reentered society; and that Vongxay, which did not apply the mode of analysis that Bruen later established and now requires courts to perform, is clearly irreconcilable with Bruen.”
Additionally, the panel notes that anything postdating the 19th century is not what the Court has in mind.The judges then add, “Founding era history is paramount” because, as the Court recognized in Bruen, “not all history is created equal” and “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.”
Background: On March 20, 2020, an automobile in which Duarte was a passenger was being pulled over by police officers when the passenger in the car threw a handgun out of the window before the car stopped. The officers retrieved the gun and found that it matched a magazine that was found in the vehicle. Duarte was charged under 597 U.S. 1 (2022), § 922(g)(1). Duarte appealed and challenged his conviction as a result of the Bruendecision.
The question of the constitutionality of 597 U.S. 1 (2022), § 922(g)(1) is being narrowly addressed by the current SCOTUS case of Rahimi, although Rahimi may or may not deal with this issue when a decision is rendered before the end of this term. Another case, Garland v. Range, deals with 597 U.S. 1 (2022), § 922(g)may be applicable. In an en banc opinion, the US Court of Appeals for the Ninth Circuit ruled for the plaintiff, Range. In Dean Weingarten’s analysis of the Range opinion, his summary sentence may be prescient:
“The Opinion strikes directly at the power of the government to define felonies at will and thus deprive large segments of the population of the rights protected by the Second Amendment, at will.”
Garland v. Range is also before SCOTUS, where the government requests certiorari. However,
it is being held in abeyance until the decision in Rahimi. The New York Times has called this case “the next big Second Amendment case, after one on domestic violence” (Rahimi).
Nguyen v. Bonta: Case 3:20-cv-02470: Ninth Circuit Case 24-2035: On May 13, California filed its opening brief challenging the law limiting one firearm purchase within a 30-day timeframe.
Background: This case was filed on Dec. 18, 2020, against California’s One-Gun-A-Month purchase law. On Jan. 5, 2023, the court ordered “additional expert discovery,” then 11 more months passed until oral arguments were held on Dec. 6, 2023. This case includes these plaintiffs—The Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), North County Shooting Center, San Diego County Gun Owners Pac, and others who —challenged the California One-Gun-A-Month purchase law. It was decided by Federal Judge William Q. Hayes on March 11, in favor of the plaintiffs. SAF Executive Director announced the decision stating:
“There is nothing in the Second Amendment remotely connected to limiting the number of firearms a person can purchase. This limitation is blatantly unconstitutional, and if this ruling is appealed by the State of California, we intend to defend the lower court’s correct decision.”
Judge Hayes issued a judgment on March 28 and stayed his order for 30 days. The law will remain in effect until April 27. California filed an Emergency Motion under Circuit Court Rule 27-3 for a stay pending appeal on April 4. On April 24, the US Court of Appeals for the Ninth Circuit granted the stay.
District Courts
California: Ninth Circuit
CRPA, et al. v. LA County Sheriff’s Department Case No. 2:23-cv-10169:CRPA v. LASD: Case #2:23-cv-10169: The hearing was held on April 10. According to @MorosKostas on X (formerly known as Twitter) On May 10 the plaintiffs: “Filed a notice of supplemental authority to inform the judge of the Ninth Circuit’s ruling in US v. Duarte. We think Duarte is dispositive as to the aspect of our case pertaining to LASD’s discretionary denials of applicants who have not been convicted of any crime (let alone a violent felony).”
Background: On Dec. 4, 2023, CRPA, The Second Amendment Foundation, Gun Owners of America, Gun Owners of California, and seven individuals sued the Los Angeles County Sheriff’s Department (LASD) seeking Declaratory and Injunctive Relief. They are challenging the constitutionality of the LA County policies and law primarily 1.) the lack of timely process for adjudicating carry permits, 2.) grossly excessive fees, 3.) the use of highly subjective suitability criteria, and 4.) refusal to honor permits issued by other states.
In the lawsuit, the plaintiffs expressly point out that LASD “admits that it takes ‘a year to a year and a half’ to process CCW applications.” They also note that the LaVerne Police Department (LVPD) has a “cost prohibitive” fee structure, costing the applicant $900 to $1000 depending on the varying costs of training and other required services. They even point out that the price for psychological exams, if needed, was capped at $150, but since the passage of SB2, the applicant needs to pay the total cost.
Finally, they address the problem that the residents of the other 49 states who choose to visit California must be unarmed and defenseless.
“Accordingly, California’s policy of denying out-of-state residents the ability to lawfully exercise their constitutionally protected right to be armed in public for self-defense inhibits the free interstate passage of citizens and violates equal protection doctrines by treating Americans differently merely on account of their state of residency.”
Delaware: Third Circuit
USA v. Robert Hunter Biden: Case#:1:23-cv-00061-MN: On May 9, Hunter Biden’s motion to dismiss his gun charges based on 18 U.S.C. § 922(g)(2) was denied by District Judge Maryellen Noreika. She wrote that his challenge on constitutional grounds was a “facial challenge” and that he would have an opportunity to renew his challenge after the trial evidence had been submitted.
Background: On July 27, 2023, the government brought criminal charges against Robert Hunter Biden, son of President Joe Biden, in the area of failure to pay taxes and charged with possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance in violation of 18 United States Code Sections 922(g)(3) and 924(a)(2).
Hawaii: Ninth Circuit
Nelson v. Honolulu City and County: Case #: 1:24-cv-00100: On May 10, 2024, a Stipulated Judgment and Stipulated Permanent Injunction was ordered. This permanent injunction required Honolulu to expedite applications: “For applications submitted after the entry of this Stipulated Judgment and Stipulated Permanent Injunction, County and its agents shall issue a decision granting or denying each applicant’s application to carry a concealed weapon before one-hundred-twenty (120) days after the date on which the applicant first submitted a signed application form.”
The judgment also set out the timetable and methodology for issuance of Right-to-Carry Permits.
Background: On March 1, 2024 the plaintiffs filed: “This action challenges the constitutionality of concealed carry weapon permit (CCW) issuance policies, actions, rules, and or customs of County that make it extremely difficult, if not outright impossible or impermissibly time consuming, for Plaintiffs to obtain permits to carry a concealed firearm in public and therefore to exercise their right to be armed in public, as guaranteed by the Second Amendment’s text “bear arms,” and as recognized and reaffirmed by the Supreme Court in New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022).”
The plaintiffs alleged that the issuance of Right-to-Carry Permits has not changed since the Bruen decision and that “slow walking” applications resulted in delay after delay in granting permits, a situation worse than before Bruen. The plaintiffs requested a preliminary injunction.
