By Tanya Metaksa
What’s New—SCOTUS: CONFERENCE scheduled for Friday; Colon v. BATFE, DOJ and Garland: Case No. 24-10897: Attorney General Pam Bondi has made a motion to postpone the case that is a challenge to the Biden Administratio’s BATFE rule on “stabilizing braces;” C.S. v. McCrumb: Case No. 24-1364: a First Amendment case dealing with a hat with an image of an AR-15 that was worn to a school’s “hat day;” Reese v. BATFE: Case No. 23-30033: US Court of Appeals for the Sixth Circuit rules: “Ultimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among “the people” whose right to keep and bear arms is protected;” Escher v. Noble, Case No. 1:25-cv-10389: This case was filed on Valentine’s Day, 2025, with all the nationwide Second Amendment proponents as plaintiffs, seeking to enjoin Massachusetts’ new law banning 18-to-20-year-olds from firearms; United States v. Peterson: A case regarding suppressors; Beckwith v. Frey: a challenge to Maine’s new waiting period; Escher v. Nobel: a challenge to Massachusetts new ban on 18-to-20-year-olds owning firearms.
SCOTUS
On Feb. 14, SCOTUS announced that a conference would be held this Friday, Feb. 21, and Snope v. Brown and Ocean State Tactical v. Rhode Island would be rescheduled for that date. As you may remember, the previous conference was held on Jan. 28, but no news about either of those two cases was issued after that conference. Now, they are on the conference schedule for this coming Friday. Keep your fingers tightly crossed for good news.
@MorosKostas (on X.com) posted his thoughts about this announcement on Feb.14:
Ya, I’m at 50-30-15-5 odds right now.
50 for denial.
30 for grant.
15 for per curiam while sending it back dowm but not fully deciding the issue.
5 for decisive per curiam.
Should know by next week!
Office of the Attorney General
As of this date, the new Attorney General has filed motions to postpone and hold the cases in abeyance in two cases in which the Department of Justice (DOJ) has been challenged for its interpretation of federal firearms law. The Attorney General willreview the United States’ position in these litigations.
The date of these letters is FEBRUARY 2025, and the operational paragraph in both these cases is:
“Following a change in administration, on February 7, 2025, President Trump issued an Executive Order titled Protecting Second Amendment Rights. See President Donald J. Trump, Presidential Actions: Protecting Second Amendment Rights (Feb. 7, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/protecting-second- amendment-rights. Among other things, the Order directs the Attorney General to “examine” various “actions of executive departments and agencies” to “assess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President, though the Domestic Policy Advisory, to protect the Second Amendment rights of all Americans.” Id. § 2(a)”
Florida: Eleventh Circuit
Colon v. BATFE, DOJ, and Garland: Case No. 24-10897: On Feb. 12, a motion to postpone the oral argument scheduled for March 5, was issued.
Background: Original case: Colon v. BATFE: Case No.: 8-23-cv-00223: Originally filed on Feb. 1. 2023, challenging BATFE’s listing of firearms with attached “stabilizing braces” as short-barrelled rifles subject to the restrictions of the National Firearms Act. Judge Mary S. Scriven held an in-person hearing on the question of the preliminary injunction being sought by plaintiffs. After several more responses by the parties, on Jan. 26, 2024, Judge Scriven issued a preliminary injunction against BATFE’s rule in favor of the plaintiffs.
The DOJ appealed this case to the US Court of Appeals for the Eleventh Circuit on March 26, 2024, challenging Judge Scriven’s preliminary injunction against the BATFE regulation that firearms with attached “stabilizing braces” are short-barreled rifles subject to the restrictions of the National Firearms Act. On April 17, 2024, BATFE filed for an extension until May 20, 2024. On May 22, the attorney for the amicus brief filed by Brady Center, Giffords, and March for Our Lives filed for appearance. On June 19, 2024, the responding brief by the plaintiff was filed.
Pennsylvania: Third Circuit
Williams v. Garland: Case No: 24-1091: This case challenges 18 U.S.C. § 922(g)(1), which prohibits firearm possession by persons convicted of offenses punishable by more than one year of imprisonment. Plaintiff-appellee’s disqualifying convictions are based on recidivist drunk driving.
Edward A. Williams wishes to regain his Second Amendment rights, which have been denied due to non-violent misdemeanors (driving under the influence of alcohol). A motion for summary judgment has been filed for the fourth time since the case’s inception in 2017.
Quotes from the Anti-Second Amendment lobby:
The Trace: “If the Justice Department declines to defend the current federal [gun] laws in court, it would significantly raise the chances of them being ruled unconstitutional.”
Giffords: On Feb. 10, they said, “Pam Bondi’s appointment as Attorney General signals a dangerous rollback of gun safety measures. Her directive to review Biden-era policies, like the ghost gun regulations, threatens to undo years of progress in keeping untraceable firearms out of dangerous hands.”
Now they are complaining, “We’re facing a future without the ATF.”
Everytown for Gun Safety: “Under Pam Bondi’s leadership, the DOJ is poised to prioritize the gun lobby’s agenda over public safety. Her willingness to dismantle background check expansions and ghost gun rules shows a reckless disregard for the tools that keep guns out of the wrong hands.”
Brady: “Pam Bondi’s DOJ is already showing its true colors by targeting regulations that save lives, like those on ghost guns and gun show loopholes. Her history of flip-flopping on gun issues only heightens our concern about the direction she’ll take the Justice Department.”
Court of Appeals
Michigan: Sixth Circuit
C.S. v. McCrumb: Case 24-1364: On Jan. 30, 2025, a three-judge panel heard oral arguments. Mark W. Smith, Second Amendment attorney @ FourBoxesDiner on X.com and the Four Boxes Diner on YouTube.com] made a video covering this case. The brief filed by plaintiff C.S. included the following discussion in support of her First Amendment rights: “This Court should be under no illusion. The School Officials are asking it to recognize an “emotional harm” exception to the First Amendment, something the Supreme Court never has Countenanced. To be sure, “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional Problem.” “These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” But “there’s no generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students.” Even speech designed to be upsetting or Arouse contempt–which C.S.’s speech on her hat certainly was not–is protected, For “if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society Finds the idea itself offensive or disagreeable.”
They go on: “Allowing such unsupported ipse dixit to establish the “specific and significant fear of disruption” Tinker requires would write that case out of the books, and the First Amendment out of this Nation’s schools. As the Fourth Circuit explained in a highly analogous situation, a student’s T-shirt stating “NRA” and depicting people pointing rifles was protected because “Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.”
“Undisputed” or not, the School Officials’ vague, post facto assertion that they feared That C.S.’s wearing the hat would cause a “risk of scuffles” simply does not clear the bar Tinker sets. School Officials “must present facts that might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities or the invasion of the rights of others.” Here, they presented no such facts.
Unfortunately, Smith states in his video that the three-judge panel is “terrible.” So, we now await the verdict.
Background: The original case was filed on May 5, 2022. The case was filed against the principal of Robert Kerr Elementary School for violating a third-grader’s First and Fourteenth Amendment rights. The child wore a hat bearing the test “Come and Take It” with an image of an AR-15 firearm to the school’s “hat day.” This case was initially filed on May 16, 2023, in the US District Court for the Eastern District of Michigan, where the court DENIED C.S.’s motion and ruled in favor of the school district.In conjunction with the Firearms Policy Coalition, the plaintiffs filed an appeal to the US Court of Appeals for the Sixth Circuit on April 4, 2024. On November 6, the appellants (C.S.) filed a reply to the defendant’s brief on October 10. In 2018, the Firearms Policy Coalition sued in a similar case in Nevada, where the student had worn a Firearms Policy T-shirt to school and won a declaratory judgment.
Louisiana: Fifth Circuit
Opinion: Reese v. BATFE: Case No. 23-30033: The opinion was issued on Jan. 30: “This is a second challenge in our court to the constitutionality of 18 U.S.C. §§ 922(b)(1) and (c)(1), which together prohibit Federal Firearms Licensees from selling handguns to eighteen-to-twenty-year-old adults. In National Rifle Ass’n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012) (“NRA I”), this court upheld those provisions. But that decision, which was criticized at the time, see National Rifle Ass’n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 714 F.3d 334, 341 (5th Cir. 2013) (“NRA II”) (Jones, J., dissenting from denial of rehearing en banc), preceded two recent clarifying Supreme Court opinions on the methodology by which we construe gun regulations under the Second Amendment. We are now compelled to focus intently on the evidence of firearm access and ownership by eighteen-to-twenty-year-olds near and at the founding. We conclude that (1) NRA I is incompatible with the Bruen and Rahimi decisions of the Supreme Court, and (2) these provisions are inconsistent with the Second Amendment. Accordingly, we REVERSE the district court’s contrary judgment and REMAND for further proceedings consistent with this opinion.”
The three-judge panel found that the federal law banning the sale of firearms to those between the ages of 18 to 20 years of age “not only served in that militia, but were required to serve.” The Court concludes,
“Ultimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among “the people” whose right to keep and bear arms is protected.”
Background: Reese v. BATFE: Case No. 23-30033:
Since the last oral arguments, the following cases have had challenges similar to this case:Lara v. Commissioner Pennsylvania State Police (21-1832), United States v. Rahimi (22-915), and Worth v. Jacobson 2024 WL 3419668 (8th Cir. 2024). The Lara v. Commissioner Pennsylvania State Police case has a petition for certiorari before SCOTUS with a conference date in October. The judges were interested in showing how the Militia Act of 1792 played a part in “establishing that, at a minimum, at a minimum 18, 19, and 20-year-olds are part of the people. They are part of the people who have the right to keep and bear arms. The hearing recording is available.
Background: Reese v. ATF: Case 6:20-cv-01438-RRS-CBW
This case filed by FPC, NRA, and SAF challenging the ban on licensed handgun sales to law-abiding 18-to-20-year-olds was decided in favor of the ATF on Dec. 21, 2022. The Plaintiffs appealed to the Court of Appeals for the Fifth Circuit on March 31, 2023, and have requested oral argument before the Court. A brief for the appellees (FPC, NRA, and SAF) was filed on May 12, 2023. The US Court of Appeals for the Fifth Circuit heard oral argument on Nov. 7, 2023, before a three-judge panel of Jones, Barksdale, and Elrod.
United States v. Peterson: Case No. 24-30043: A three-judge panel reviewed his caseand, on Feb. 5, held that suppressors are not “Arms” and affirmed the District Court’s denial of Peterson’s motions to dismiss and suppress. However, as of Feb. 14, the Fifth Circuit Court has withheld the mandate in this case, which means the decision is being held up because there appears to be disagreement concerning this ruling. Which possibly could lead to a review en banc or whatever ruling a majority of the Fifth Circuit decides. Mark W. Smith, @ fourboxesdiner on X.com, believes that this could possibly lead to an en banc hearing regarding the panel’s ruling that suppressors are not “Arms.”
Background: Case No. 2:22-cr-00231: George Peterson had a federal firearms license, and he sold firearms from his home under the name of PDW Solutions, Inc.(PDW). In the warrant for his arrest, BATFE alleged that “a large number of firearms sold by his business, PDW, were recovered at various crime scenes.” The BATFE agents, who executed a sting operation where Peterson sold firearms that were a straw purchase, led to a Judge signing a search warrant for his home. During the search, the federal agents found an unregistered firearm suppressor in his bedroom-closet safe. He was then indicted for possession of an unregistered suppressor. Judge Greg Gerard Guidry of the District Court rejected his arguments that his Second Amendment rights were violated by the NFA. He then entered a conditional guilty plea, reserving the fight to appeal the denial of his motions. Peterson then appealed to the US Court of Appeals for the Fifth Circuit.
District Court
Maine: First Circuit
Beckwith v. Frey, Case No. 1:24-cv-00384: This lawsuit, filed on Nov. 12, 2024, involves plaintiffs Andrea Beckwith and others challenging Maine’s 72-hour waiting period for firearm purchases, arguing it violates the Second Amendment. The defendant is Aaron M. Frey, the Attorney General of Maine. On Feb. 13, Judge Lance E. Walker granted a preliminary injunction, pausing the enforcement of the waiting period law while the case proceeds, finding that the plaintiffs are likely to succeed in their constitutional challenge.
Massachusetts: Second Circuit
Escher v. Noble, Case No. 1:25-cv-10389: This case was filed on Valentine’s Day, 2025, with all the nationwide Second Amendment proponents as plaintiffs: Firearms Policy Coalition, Gun Owners of America, National Rifle Association, and the Second Amendment Foundation. Additionally there are two Massachusetts groups and Mack Escher. This lawsuit contends that H.B. 4885, enacted in 2024, “prohibits 18-to-20-year-old adult residents of Massachusetts like Escher…purchasing, possessing, or carrying any handgun or semiautomatic firearm whatsoever.” The plaintiffs seek to enjoin this section of HB4885.
