By Tanya Metaksa
What’s New—SCOTUS: Argument in March 2024—National Rifle Association v. Vullo: what’s next? Garland v. VanDerStok: Case No. 23-10718: the case has now been Distributed for the SCOTUS Conference of April 12, 2024; Nunzio Calce et al., v. The City of New York: After over 2 years, NYC is again asking for an extension of time; May v. Bonta & Carralero v. Bonta: Case 23-4354 and 23-4356: Oral argument has been scheduled for April 11, 2024. The “luck of the draw” has not been very favorable for this case; Lara v. Commissioner Pennsylvania State Police: On March 27, 2024, an en banc hearing was denied. Thus the US Court of Appeals for the Third Circuit three-judge panel’s reversal of the District Court stands; Nguyen v. Bonta: Case 3:20-cv-02470-WQH-MMP: Judge Hayes issued a judgment on March 28, 2024, and stayed his order for 30 days. The law will remain in effect until April 27; Srour v. New York City: On March 29, 2024, Joseph Srour submitted an application (23A870) to vacate the stay by the US Court of Appeals for the Second Circuit to Justice Sotomayor.
SCOTUS
National Rifle Association v. Vullo: Oral arguments were held on Monday, March 18, 2024. We probably won’t know the outcome until late May or June, but if it is a win for NRA, then this is not the end of the case.
According to a podcast with attorney Robert Corn-Revere on TherReload.com, the SCOTUS case “is about the underlying principles of the case and not about the case itself. If the NRA wins at the Supreme Court, that gives them a do-over in the lower courts.” It doesn’t mean the case has been fully decided.
Thus the case at SCOTUS will decide whether Commissioner Vullo and former Governor Cuomo’s activity was to suppress the NRA’s First Amendment rights. If the SCOTUS agrees with the NRA, then it goes back to the District Court for more litigation.
Garland v. VanDerStok: Case No. 23-10718: The timetable for responses to the certiorari petition was extended and has now been Distributed for the SCOTUS Conference of April 12, 2024. The final brief from VanDerStok was filed on March 27, 2024. This lawsuit opposes BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers.” On March 7, 2024, briefs from VanDerStok and an amicus brief from the District of Columbia, NJ, PA, et al were filed. Both sides of the argument agreed that the Court should grant certiorari.
Antonyuk v. James: Case No. 23-910: An Amicus Curiae Brief of Project 21 In Support of Petitioners. Project 21 is “the national network of black political, civic, and business leaders, is an initiative of the National Center for Public Policy Research to promote the views of black Americans whose entrepreneurial spirit, dedication to family, and commitment to individual responsibility have not traditionally been echoed by the nation’s civil-rights establishment.”
This amicus brief includes:
“Racially tainted historical analogs cannot justify current laws”, “During Reconstruction (1865–1877), black Americans’ right to bear arms continued to be denied through passage of the black codes”, and “Though a Northern state, in 1911 New York enacted the Sullivan law, a firearms restriction targeting “undesirables,” such as black Americans and foreign-born residents. It was “the first law in any state (other than the black codes) to require a permit for keeping a pistol or other concealable firearm in the home.”
Background: The US Court of Appeals for the Second Circuit on Dec. 8, 2023, issued an opinion in a ruling that encompassed four different cases challenging various sections of New York’s 2022 law (CCIA). These cases had been heard in tandem on March 20, 2023—Antonyuk v. Chiumento, Hardaway v. Chiumento, Christian v. Chiumento, and Spencer v. Chiumento.
According to the opinion:
In Antonyuk, the U.S. District Court for the Northern District of New York (Suddaby, J.) enjoined enforcement of more than a dozen such provisions.
New York: Second Circuit
Srour v. New York City: On March 29, Joseph Srour filed an application (23A870) with Justice Sotomayor to vacate the US Court of Appeals for the Second Circuit’s stay.
Background: Joseph Srour brought this case in June 2022 before the Bruen decision. He had been denied his application for both long gun and pistol permits by the NY Police Department due to lack of “good moral character.” Judge John P. Cronin of the US District Court for the Southern District of New York granted Srour’s motion for declaratory and injunctive relief concerning subsections (a)(2) and (a)(9) of New York City Administrative Code Section 10-303. These subsections deal with the NYC requirement that permits to purchase or possess are needed for rifles and shotguns. Denial can be based on the applicant’s lack of “good moral character” or upon the official’s finding of “other good cause.” Cronin also granted his motion against prior versions of Sections 3-03 and 5-10 of Title 38 of the RCNY. The decision was stayed until Oct. 26, but NYC appealed to the US Court of Appeals for the Second Circuit on Oct. 24, 2023. On Oct. 31, the defendants (the city of New York) filed a Motion for a stay of the district court’s award of prospective relief with the US Court of Appeals for the Second Circuit. On Nov. 9, plaintiff Srour filed a memorandum in opposition to a stay pending appeal. On Feb. 21, Circuit Judges Kearse, Park, and Robinson granted New York City a stay pending appeal.
Courts of Appeal
California: Ninth Circuit:
May v. Bonta & Carralero v. Bonta: Case 23-4354 and 23-4356: Oral argument has been scheduled for April 11, 2024. The “luck of the draw” has not been very favorable for this case. On April 1, 2024, Mark W. Smith @fourboxesdiner (if you are not following him, you should) on X (formerly known as Twitter), tweeted:
“TERRIBLE ANTI-2A PANEL IN RENO MAY, ET AL CASE. The Ninth Circuit’s panel assignment for the Carralero, May, and Woolford (CA & HI gun-free zone cases) argument is available and it’s terrible. JUDGES MARY SCHROEDER, SUSAN GRABER, and JENNIFER SUNG.”
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, the court hearing was 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.”
On Dec. 30, 2023, the US Court of Appeals for the Ninth Circuit three-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, 2024, 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 to before Dec. 30.
Pennsylvania: Third Circuit
Lara v. Commissioner Pennsylvania State Police: On March 27, an en banc hearing was denied. Thus the reversal of the District Court by the three-judge panel of the US Court of Appeals for the Third Circuit stands. According to @2Aupdates, the vote was 7-6, with every Obama and Biden appointee voting to grant the en banc petition.
Background: This case is one of those cases that began before the Bruen decision and was stopped for six months while SCOTUS decided Bruen. It was first filed on October 16, 2020. Then a motion for a preliminary injunction was filed on December 1, 2020. The final order by Judge William B. Stickman denying the motion for a preliminary injunction and granting the state of Pennsylvania’s motion to dismiss was issued on April 16, 2021. The Plaintiffs filed their notice of appeal on April 23, 2021. Then came Bruen. In July 2022 the case at the Circuit Court had to be reargued with the new SCOTUS guidelines in mind.The District Court ruled against the plaintiffs, and they appealed to theUS Court of Appeals for the Third Circuit. A three-judge panel of that Court issued this opinion on January 18, 2024:
“The words ‘the people’ in the Second Amendment presumptively encompass all adult Americans, including 18- to 20-year-olds, and we are aware of no founding-era law that supports disarming people in that age group. Accordingly, we will reverse and remand.”
Circuit Courts
California: Ninth Circuit
Nguyen v. Bonta: Case 3:20-cv-02470-WQH-MMP: 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 will be required to ask the US Court of Appeals for the Ninth Circuit For a stay when and if it appeals.
Background: This case was originally filed on Dec. 18, 2020, against California’s One-Gun-A-Month purchase law and includes the following plaintiffs: On Jan. 5, 2023, the court ordered “additional expert discovery” and then 11 more months passed until oral arguments were held on Dec. 6, 2023. This case includes the following 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.”
Michigan: Sixth Circuit
C.S. v. McCrumb: Case No. 2:22-cv-10993-TGB-EAS: A First Amendment case concerning “hat day” at an elementary school in Michigan. C.S. picked out her hat for “hat day” and it was a black hat with embroidery of a star, an image of an AR-style rifle, and the words “Come and take it”. The school called C.S.’s father and asked him to bring a new hat for C.S. to wear. He declined. C.S. Was not allowed to wear her hat on “hat day.” On May 9, the plaintiff filed the complaint. An in-person hearing was held on Jan. 23. On March 30, District Judge Terrence G. Berg ordered that judgment be entered in favor of the defendants, and C.S.’s case was dismissed with prejudice.
New York City: Second Circuit
Nunzio Calce et al., v. The City of New York: Case No. 1:21-8208 (ER): Now NYC is asking for a one-month extension for all the ensuing filing dates.
Background: This lawsuit was filed on October 5 ,2021, by Firearms Policy Coalition. A press release issued almost 3 years ago stated:
“As many courts have properly held, electronic arms are commonly kept and carried for self-defense. Under the Supreme Court’s precedents, New York City’s ban on these common arms is categorically unconstitutional,” said Adam Kraut, FPC’s Senior Director of Legal Operations. “The City may not like the Second Amendment, but it cannot opt-out of the Constitution. FPC looks forward to vindicating the rights of the plaintiffs and our members in this and our dozens of other cases throughout the United States.”
The plaintiffs filed their amended complaint on Dec. 22, 2021, and it took until April 22, 2022, for NYC to respond then the plaintiffs filed for Summary Judgment on March 3, 2024, with the response due by March 29.
Texas: Fifth Circuit
NRA v. ATF: Case 3:23-cv-01471-L: On March 29, District Judge Sam A. Lindsay granted the preliminary injunction:
“For the reasons explained, the court concludes that the NRA has associational standing to sue on behalf of its members and has met its burden of establishing each of the four requirements for a preliminary injunction. The court, therefore, grants the NRA’s Motion (Doc. 8) and request for a preliminary injunction, and it enjoins the ATF; Steven Dettelbach, in his official capacity as the Director of the ATF; the United States Department of Justice; and Merrick Garland, in his official capacity as the United States Attorney General from enforcing the Final Rule against the NRA’s members pending the final resolution of this action on the merits.”
Background: On July 3, 2023, the NRA filed a motion for a preliminary injunction against ATF’s Final Rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’ . On July 31, the plaintiffs filed a “Notice of Related Cases” in which they listed both Mock v. Garland and Second Amendment Foundation v. BATFE.
