By Tanya Metaksa
What’s New—SCOTUS: Several cases await the Court’s response on certiorari appeals; Massachusetts: First Circuit: Capen v. Campbell: Case:24-1061: The appeal was filed on March 6, 2024. In March 2024, the National Shooting Sports Foundation filed a brief supporting the Appellant. Andrea Joy Campbell, Massachusetts Attorney General, filed her brief on April 29, 2024; Pennsylvania: Third Circuit: Lara v. Commissioner Pennsylvania State Police: As a result of the ruling by the US Court of Appeals for the Third Circuit on April 24, 2024, Judge William S. Stickman, IV of the US District Court for the Western District of Pennsylvania, ordered the law denying 18 to 20-year-olds their Second Amendment rights was enjoined; State of Washington v. Gator’s Custom Guns: Case No. 23-2-00897-08: On April 25, 2024, State Supreme Court Commissioner Michael Johnston ruled that the high-capacity magazine ban will remain in effect.
SCOTUS
The following cases have submitted certiorari petitions:
Harrel v. Raoul, No. 23-877; Herrera v. Raoul, No. 23-878; Barnett v. Raoul, No. 23-879; National Association for Gun Rights v. City of Naperville, No. 23-880; and Langley v. Kelly, No. 23-944: On March 5, an extension was sought by all the respondents and was granted. On April 26, the reply brief from the Second Amendment Foundation for the petitioners was filed. All these cases stem from enacting the Protect Illinois Communities Act (PICA) on January 1, after the US Court of Appeals for the Seventh Circuit on Nov. 3, 2023, voted 2-1 to uphold the law.
Background: National Association for Gun Rights v. Naperville: On Dec. 14, 2023, SCOTUS did not issue a temporary injunction against the Protect Illinois Communities Act (PICA).
Harrel v. Raoul and Barnett v. Raoul: This case was filed on Jan. 17, 2023, by the Second Amendment Foundation, The Firearms Policy Coalition, Marengo Guns, Inc., C4 Gun Store, and David Harrel against the large capacity magazine ban that Gov. J.B.Pritzker signed on that date. On Jan. 25, Plaintiffs filed a motion for a preliminary injunction (PI). All parties agreed on a motion for a coordinated preliminary injunction briefing, adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly in the US District Court for the Southern District of Illinois. On April 28, Judge Stephen Patrick McGlynn issued a preliminary injunction preventing enforcement of PICA. He wrote, “PICA seems to be written despite the clear directives in Bruen and Heller, not in conformity with them.”
US Court of Appeals for the Seventh Circuit: Harrel v. Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly, now known as Barnet v. Raoul: In a 2-1 decision (with Judges Easterbrook and Wood in the majority), the US Court of Appeals for the Seventh Circuit vacated the District Judge’s Preliminary Injunction. Judge Brennan wrote a 44-page dissent.
Bianchi v. Brown: Case No. 23-863: Due to this case being slowed and delayed by the US Court of Appeals for the Fourth Circuit, the plaintiff’s Second Amendment challenge to Maryland’s “assault weapons” ban is still awaiting certiorari. The Bianchi response to the Brown brief was submitted on April 25, 2024. This paragraph in the plaintiffs’ request to SCOTUS explains the problems that this lawsuit faces:
“The actions of the Fourth Circuit below in this case are the most brazen yet. The Fourth Circuit initially affirmed the dismissal of the Petitioners’ claims by applying that court’s precedent in Kolbe. Petitioners sought review in this Court, and this Court granted review, vacated the decision below, and remanded for further consideration in light of Bruen. Bianchi v. Frosh, 142 S. Ct. 2898, 2899 (Mem.) (2022). Consistent with the remand order, a panel of the Fourth Circuit heard argument in December 2022. In January 2024, however, the court issued not an opinion but rather an order granting rehearing en banc despite no party requesting the court to do so. See Order, Bianchi v. Brown, No. 21-1255 (4th Cir. Jan. 12, 2024), ECF No. 76. The only plausible explanation is that a majority of the en banc court was not pleased with the outcome that the panel was prepared to reach. Cf. Wise v. Cir- costa, 978 F.3d 93, 117–118 (4th Cir. 2020) (Niemeyer, J., dissenting). And given the court’s grant of en banc rehearing in another case in which the panel ruled in favor of the Second Amendment, see Md. Shall Issue, Inc. v. Moore, No. 21-2017(L), 2024 WL 124290 (4th Cir. 2024), it appears that the en banc court was seeking to avoid a similar opinion even seeing the light of day.”
Background: This is a case against Maryland’s “assault weapons” ban law brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, and the Firearms Policy Coalition on Dec. 1, 2021, in the US District Court for the District of Maryland. It was dismissed on March 4, 2021, and was appealed to the U.S. Supreme Court. After the Bruen decision, SCOTUS vacated and remanded the case to the Fourth Circuit. It was reopened on Aug. 1, 2022 and oral arguments were held on Dec. 6, 2022. Thirteen months after oral arguments were heard, the US Court of Appeals for the Fourth Circuit issued an Order on Jan. 12, 2024, “that rehearing en banc is granted…This case is tentatively calendared for oral argument during the next available argument session.”
Brown v. United States: Case No. 22-10892: firearms prohibition for a felony offense. Response due May 9.
Courts of Appeal
Massachusetts: First Circuit:
Capen v. Campbell: Case:24-1061: The appeal was filed on March 6. In March, the National Shooting Sports Foundation filed a brief supporting the Appellant. Massachusetts Attorney General Andrea Joy Campbell filed her brief on April 29.
Background: This lawsuit was initially filed by Joseph R. Capen and the National Association of Gun Rights (NAGR) on Sept. 7, 2022, due to the Scotus Bruen decision of that year. Since 1994, the state of Massachusetts has banned new private ownership of so-called “assault weapons” and large-capacity magazines. The plaintiffs in this case are asking the Court to “enter a declaratory judgment pursuant to 28 U.S.C. § 2201 that the Challenged Laws sections identified here are unconstitutional.”On November 23, 2022, the District Court set a motion hearing for May 11, 2023, which was then postponed to May 30, 2023. On Dec. 21, 2023, Judge F. Dennis Saylor denied the plaintiff’s motion for a preliminary injunction. On January 10, 2024, the plaintiffs appealed to the US Court of Appeals for the First Circuit.
Pennsylvania: Third Circuit:
Lara v. Commissioner Pennsylvania State Police:As a result of the ruling by the US Court of Appeals for the Third Circuit on April 24, 2024, Judge William S. Stickman, IV of the US District Court for the Western District of Pennsylvania, ordered: “The Commissioner of the Pennsylvania State Police (“Commissioner”) is hereby ENJOINED from arresting law-abiding persons 18 to 20 years old who openly carry firearms during a state of emergency declared by the Commonwealth of Pennsylvania.”
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 Oct. 16, 2020. Then, a motion for a preliminary injunction was filed on Dec. 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.”
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.”
State Courts
State of Washington v. Gator’s Custom Guns: Case No. 23-2-00897-08: On April 25, 2024, State Supreme Court Commissioner Michael Johnston ruled that the high-capacity magazine ban will remain. In his ruling, he wrote that this happened in California when a similar law was enjoined: “During the feeding frenzy to buy LCMs after the superior court entered its ruling, customers frequently bought as many as 10 LCMs, one person claiming to have purchased 45 of them.”
The US Court of Appeals for the Ninth Circuit now takes up the case.
Background: After the passage of ESSB 5078 in 2022, a bill that made the sale and possession of magazines with more than 10 round capacity illegal, the State of Washington filed a Consumer Protection Act (CPA) enforcement action against Gator’s Custom Guns, Gator’s responded that ESSB 5078 violated Washington Constitution, Article 1, Art.1, § 24 and the U.S. Constitution and filed a lawsuit. In the Superior Court of Washington for Cowlitz County on April 8, 2024, Judge Gary D. Bashor issued the following order: “As such there is no set of facts this Court can conceive of which would allow the Consumer Protection sections of ESSB 5078 as written to pass constitutional muster. This Court specifically finds those sections unconstitutional.
Order
1. The Court Grants the Defense Motion for Summary Judgement on both its Article 1, Section 24 claim and on their Second Amendment Claim.
2. The Court Denies the State’s Motion for Summary Judgement on both its Article 1, Section 24 claim, and its Second Amendment Claim.”
The Court also enjoined the State of Washington from enforcing any provisions of ESSB 5078. Within hours, the Supreme Court of the State of Washinton issued a temporary stay.
