By Tanya Metaksa
What’s New—SCOTUS: Garland v. VanDerStok: Case No. 23-10718: On April 22, SCOTUS granted certiorari; California: Judge Cormac J. Carney who ruled in favor of the Second Amendment in Boland v. California and May v. Bonta announced he will retire on May 31, 2024: Ken Paxton v. Dettelbach Case No. 23-20802: A hearing is scheduled before Judges Edith H. Jones, Edith Brown Clement, and Cory T. Wilson of the US Court of Appeals for the Fifth Circuit on May 1, 2024; Hawaii: Ninth District: Teter v. Lopez: Case: 20-15948: On April 22, The Hawaii Office of the Public Defender filed an amicus brief with the Ninth Circuit opposing the state’s butterfly knife ban.
Announcements
California: Judge Cormac J. Carney who ruled in favor of the Second Amendment in Boland v. California and May v. Bonta announced he will retire on May 31, 2024.
SCOTUS
Garland v. VanDerStok: Case No. 23-10718: On April 22, 2024, SCOTUS granted certiorari. It will be considered during the 2024-2025 term. This certiorari petition was brought by the United States Department of Justice (DOJ) on Feb. 7, 2024. The DOJ petition asked the following questions:
1. Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive,” 27 C.F.R. 478.11, is a “firearm” regulated by the Act.
2. Whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,” 27 C.F.R. 478.12(c), is a “frame or receiver” regulated by the Act.
Since the case is a challenge to an administrative ATF regulation, it is highly unlikely that Second Amendment issues will be involved during the litigation at the Supreme Court.
Background: This lawsuit against the BATFE’s new rule concerning treating “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 September 14. The US Court of Appeals for the Fifth Circuit held oral arguments on Sept. 7 and on October 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 September 14. On October 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 Aug. 8, 2023, in a 5-4 decision 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.”
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. On Nov. 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 which 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.
The following cases also were scheduled for the SCOTUS conference on April 19, 2024, and were not considered at that time.
Bianchi v. Brown: Case No. 23-863: Second Amendment challenge to Maryland “assault weapons” ban. On April 12 the brief of Maryland Attorney General Anthony G. Brown was submitted
Brown v. United States: Case No. 22-10892: firearms prohibition for a felony offense. Response due May 9.
Courts of Appeal
Hawaii: Ninth District
Teter v. Lopez: Case: 20-15948: On April 22, 2024, The Hawaii Office of the Public Defender filed an amicus brief with the Ninth Circuit opposing the state’s butterfly knife ban. In the brief they write: “When people who carry a butterfly knife for their personal safety and self-defense are prosecuted, the State’s (sic) violates the Second Amendment to the United States Constitution.”
Background: A multistate coalition of 17 attorneys general supports Hawaii’s request to the Ninth Circuit to rehear an appeal defending Hawaii’s ban on butterfly knives. The petition seeks a full en banc review of a panel opinion issued on August 7, 2023. On appeal from the US District Court for the District of Hawaii this case challenges the HI ban on butterfly knives. Oral arguments were held on Feb. 14, 2023. On Aug. 7, 2023 the US Court of Appeals for the Ninth Circuit issued the following opinion:
“In Hawaii, it is a misdemeanor knowingly to manufacture, sell, transfer, transport, or possess a butterfly knife no exceptions. Haw. Rev. Stat. § 134-53(a). Because the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms, we conclude that section 134-53(a) violates Plaintiffs’ Second Amendment rights. We reverse and remand.”
On Jan. 26, 2024, the US Court of Appeals for the Ninth Circuit vacated Teter and will hear it en banc. On March 28, NRA filed an amicus brief with the en banc Ninth Circuit.
Texas: Fifth Circuit:
Ken Paxton v. Dettelbach Case No. 23-20802: A hearing is scheduled before Judges Edith H. Jones, Edith Brown Clement, and Cory T. Wilson of the US Court of Appeals for the Fifth Circuit on May 1, 2024.
Ken Paxton v. Dettelbach Case No. 4:22-cv-143: Three citizens of Texas wish to build firearm suppressors from readily available parts and have informed the Attorney General of Texas of their desire to do so, but federal law requiring a tax to be paid on such items.The plaintiffs write: “Thus plaintiffs also seek a declaration that firearms suppressors made in Texas for personal use may not be regulated under the Interstate Commerce Clause or the Necessary and Proper Clause.”Thus AG Paxton has joined their suit. The plaintiffs seek a declaratory judgment that the federal law does not authorize the regulation of making a firearm suppressor for use only in Texas and issue a permanent injunction against the ATF from enforcing federal law. On July 18, 2023, Judge Mark Pittman ruled that neither the plaintiffs nor the Texas Attorney General had standing and dismissed the case. The plaintiffs then appealed to the US Court of Appeals for the Fifth Circuit.
