By Tanya Metaksa
What’s New—SCOTUS: Arguments scheduled in February and March 2024—Garland v. Cargill Oral arguments scheduled for Feb. 28, 2024, and National Rifle Association v. Vullo: Oral arguments set for Monday, March 18, 2024; Kiloton Tactical v. BATFE: BATFE attempted to revoke Kiloton’s FFL and lost in the administrative hearing, thus the lawsuit for a preliminary injunction was denied; Federal Law Enforcement Officers Assn v. Attorney General New Jersey: New Jersey has been told that their law does NOT supersede the federal law; Carralero v. Bonta: On Feb. 16, Firearms Policy Coalition (FPC) filed a response brief; Firearms Policy Coalition announced the filing of an amici curiae brief in the case of RMGO v. Polis, a lawsuit challenging Colorado’s ban on firearms’ purchase by 18 – 20-year-olds; Junior Sports Magazines v. Bonta: On Feb. 20 the US Court of Appeals for the Ninth Circuit denied the State’s request to have the CRPA win in the Ninth Circuit heard en banc was denied.
SCOTUS
Argument scheduled in February
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 Jan. 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.” Vox.com just published a misleading article on this case.
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 thatit 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 6 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.
Argument scheduled for March
National Rifle Association v. Vullo: Oral arguments set for Monday, March 18, 2024.
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. Seven amicus briefs representing 40 individuals and organizations, including the ACLU, were filed in support. The question to be resolved is:
Case: 22-842SCOTUS 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?
CIRCUIT COURTS
California: Ninth Circuit
May v. Bonta & Carralero v. Bonta: Oral argument has been scheduled for April 11. On Feb. 16, Firearms Policy Coalition (FPC) filed a response brief in which they argued, “California fails to show that any of its proffered analogues are sufficiently widespread within the relevant time period—the Founding era—or relevantly similar in ‘how’ and ‘why’ they burden the right to self-defense.”
Background: After the passage of SB2, a Bruen-response bill creating “sensitive places” where firearms are not allowed, this lawsuit was initiated on September 12, 2023. Plaintiffs include CRPA, GOA, SAF, and others. On October 3, a court hearing was rescheduled for December 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 prohibiting 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 legally allowed before Dec. 30.
Junior Sports Magazines v. Bonta: On Feb. 20 the US Court of Appeals for the Ninth Circuit denied the State’s request to have the CRPA win in the Ninth Circuit heard en banc was denied. According to CRPA:
“The case will now head back to the lower court with our Motion for Preliminary Injunction win from the original Ninth Circuit panel intact. This nefarious law, passed by the legislature as AB 2571, essentially put an end to youth shooting sports in California by preventing anyone from speaking to a person under 18 years of age about anything having to do with any firearms-related product that could be attractive to youth. Naturally, the case raises concerns not only about Second Amendment restrictions but also free speech under the First Amendment. While the injunction is not in place yet (we have to wait for the case to be remanded officially to the trial court), this is a great win for freedom-loving youth in California.”
Background: This lawsuit was filed immediately after Gov. Gavin Newsom signed AB2571 that made it unlawful for any“firearm industry member” to “advertise, market, or arrange for placement of an advertising or marketing communication concerning any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” The Plaintiffs were seeking a Preliminary Injunction (PI). The lawsuit was suspended until after the legislature passed another bill, AB160, modifying some of the parameters of the original legislation, Judge Christina A. Snyder then ruled against the motion for a PI on October 24, 2022. Ninth Circuit-3 judge panel: The plaintiffs appealed to the Ninth Circuit Court of Appeals. The three judge panel included District Judges N. Randy Smith, Kenneth K. Lee and Lawrence VanDyke. The case was argued and submitted on June 28, 2023 and on Sept. 13, 2023 the Ninth Circuit reversed “the district court’s denial of preliminary injunction and remand(ed).” The Court wrote: “And even assuming that intermediate scrutiny applies, California’s advertising restriction likely imposes an unconstitutional burden on protected speech. The state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors.”
Colorado: Tenth Circuit
RMGO v. Polis: Case #23-4354: On February 14, Firearms Policy Coalition announced the filing of an amici curiae brief in the case of RMGO v. Polis, a lawsuit challenging Colorado’s ban on firearms purchase by 18 – 20-year-olds.
Background: RMGO v. Polis (Case# 1:23-cv-01077-PAB-NRN), plaintiffs aged 18-29 years of age, filed a complaint against Colorado Gov. Jared Polis on April 28, 2023, in the US District Court for the District of Colorado. On August 7, 2023, Chief United States District Judge Philip Brimmer ordered:
ORDERED that the portion of plaintiffs’ Motion for Preliminary Injunction [Docket
No. 12] brought on behalf of plaintiffs Tate Mosgrove and Adrian S. Pineda is GRANTED. It is further
ORDERED that the defendant and his officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this preliminary injunction are enjoined, effective immediately, from enforcing SB23-169. It is further
ORDERED that this preliminary injunction shall remain in effect pending disposition of the case on the merits.
On Aug. 21, 2023, Gov. Polis appealed to the US Court of Appeals for the Tenth Circuit requesting a stay pending appeal, which the Circuit Court denied on August 29, 2023.
Illinois: Seventh Circuit
Vandermyde v. Cook County: US Court of Appeals for the Seventh Circuit on Feb. 20, 2024 sent this case back to the District Court
Background: This case is against the Cook County gun and ammunition tax that was instituted in 2022. The District Court ruled in favor of Cook County and the case was appealed to the US Court of Appeals for the Seventh Circuit. Oral arguments were held on June 24, 2024 in Chicago, Illinois.
New Jersey: Third Circuit
Federal Law Enforcement Officers Assn v. Attorney General New Jersey: New Jersey has been told that their law does NOT supersede the federal law.The opinion sums it all up succinctly:
“Retired law enforcement officers from various agencies claim that a federal statute gives them the right to carry concealed firearms in their home state of New Jersey. New Jersey argues that the federal statute does not provide that enforceable right. And even if there were such an enforceable right, New Jersey argues that the federal statute would apply only to officers who retired from federal or out-of-state law enforcement agencies—not to officers who retired from New Jersey law enforcement agencies. We conclude that the federal statute does provide certain retired officers (those who meet all the statutory requirements) with an enforceable right, and that right extends equally to officers who retired from New Jersey agencies and those who retired from federal or out-of-state agencies. The federal statute also preempts contrary aspects of New Jersey law. So we will affirm the District Court’s order granting declaratory and injunctive relief to the retired officers.”
DISTRICT COURTS
Florida—Tenth Circuit
Kiliton Tactical LLC v. BATFE: On Aug. 29, 2023, Kiloton Tactical LLC filed a lawsuit to stop BATFE from denying their Federal Firearms license renewal. The Biden Administration has been implementing a policy called Zero Tolerance against FFLs. This policy directs the ATF to revoke the licenses of dealers the first time they violate federal law by willfully transferring a firearm to a prohibited person, failing to run a required background check, falsifying records such as a Firearms Transaction Form, failing to respond to an ATF tracing request, or refusing to permit ATF to conduct an inspection in violation of the law. Kiloton Tactical was issued a “Notice to Deny Application for License” on July 10, 2023. The FFL dealer then requested an administrative hearing as well as filing this lawsuit. The administrative hearing was subsequently conducted on November 8, 2023, and following the hearing, the ATF reversed its initial decision to revoke Kiloton’s license and renewed the license.Thus Judge M. Casey Rodgers denied the preliminary injunctions adding, “In addition to the remedy being moot, Kiloton’s injuries are not actual or imminent since the ATF renewed Kiloton’s federal firearm license until July 2026.”
STATE COURTS
Illinois: Appellate Court of Illinois
Vandermyde v. Cook County: The Appellate Court of Illinois on February 20, 2024, sent this case back to the Illinois District Court which had dismissed the complaint. The judges wrote, “Accordingly, the tax cannot be countenanced as a permissible fee that can be assessed to a person in conjunction with that person’s exercise of the Second Amendment right. Therefore, the complaint cannot be dismissed on that basis.”
Background: This case is against the Cook County gun and ammunition tax that was instituted in 2022. The District Court ruled in favor of Cook County and the case was appealed to the US Court of Appeals for the Seventh Circuit. Oral arguments were held on June 24, 2023 in Chicago.
