By Tanya Metaksa
What’s New—SCOTUS: certiorari announcements; Defense Distributed v. Platkin: The US Court of Appeals for the Third Circuit Panel is Krause, Scirica, and Rendell; Christian v. James (1:22-cv-00695): originally Christian v. Nigrelli: On Oct. 10,Judge John Leonard Sinatra, Jr. ruled in favor of Christian, the plaintiff, on the so-called “vampire rule.”; Wade v. University of Michigan: Michigan Supreme Court dismisses an 8-year-old case against the university’s ban on firearms; Defense Distributed v. Platkin: three judge panel selected;Suarez v. Evanchick: Case # 24-2395: State of New Jersey is stalling at the Appeals Court; Struck v. Platkin: Case # 3:24-cv-09479: lawsuit against NJ One-gun-a-Month; Christian v. James (1:22-cv-00695): Judge Sinatra ruled against NY state rule on firearms on private property; Montgomery v. Rosenblum: Case # 3:24-cv-01273: Oregon ban on “self-assembled firearms”; Firearms Policy Coalition, Second Amendment Foundation v. Merrick Garland: lawsuit against federal prohibition on firearms in postal facilities; Wade v. University of Michigan: Michigan Supreme Court dismisses suit against University of Michigan ban of firearms on campus.
SCOTUS
Certiorari: Several cases requesting certiorari were scheduled:Wilson v. State of Hawaii: Case # 23-7517 was redistributed for a conference on Oct. 18, and no action was taken. Snope v. Brown (formerly known as Maryland Shall Issue v. Montgomery County) with a response due Nov. 1. The first four Fridays in November are listed as conference days, with order list issuance days on Nov. 18 and 25.
“Assault Weapons” Ban Cases
Illinois’ “assault weapons” ban case (Snopes v. Brown) from the Fourth Circuit is before SCOTUS seeking certiorari, and another case from Illinois (Harrell v. Raoul) may shortly be on its way to seeking certiorari.In both these cases, the Appeals Court judges failed to follow the SCOTUS dicta when analyzing Second Amendment cases.
Harrel is summarized below, while Snopes was covered in this Judicial Report.
Circuit Court
Illinois: Seventh Circuit
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 Oct. 22, the state of Illinois filed over 3,500 pages attempting to justify their ban on “assault weapons.” An analysis by attorney Mark W. Smith can be found on YouTube.
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. 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.
National Association for Gun Rights v. Naperville: On December 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. 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.
New Jersey: Third Circuit
Defense Distributed v. Platkin: The US Court of Appeals announced that the Third Circuit Panel is Krause, Scirica, and Rendell.
Background: Federal District Court Judge Michael A. Shipp ruled that the First Amendment does not cover computer files in this case, which dates back at least a decade. I covered it in an article here in 2020. The Plaintiffs say they will appeal to the US Court of Appeals for the Third Circuit and hope that the Third Circuit will send it back to the Fifth Circuit. The case results from an injunction granted in Washington, stopping Defense Distributed from posting CAD and other files on its website.
Pennsylvania: Third Circuit
Suarez v. Evanchick: Case # 24-2395: Since this case was appealed by the State of Pennsylvania, the Appellees (state of PA) have argued to hold consolidate appeals C.A.V. withKoons et al. v. Attorney General of New Jersey, 23-1900 & 23-2043. The appellants (Suarez et al.) have offered motions in opposition.
Background: see this case listed under the District Court informationbelow.
District Court
New Jersey: Second Circuit:
Struck v. Platkin: Case # 3:24-cv-09479: This Case was filed on Sept. 26, seeking injunctive relief againstN.J.S.A. § 2C:58-3(i), N.J.A.C. § 13:54-1.9, and Defendants’ policies and enforcement practices that only allow one-gun-per-month (OGM) purchase of a handgun. The plaintiffs, Struck, Francisco, and Firearms Policy Coalition, are seeking injunctive relief: “Plaintiffs wish to engage in constitutionally protected conduct by acquiring more than one handgun in 30 days for lawful purposes. But N.J.S.A. § 2C:58-3(i), N.J.A.C. § 13:54-1.9, and Defendants’ policies and enforcement practices (hereinafter, the “OGM Ban”) prohibit and criminalize this conduct.”
New York: Second Circuit:
Christian v. James (1:22-cv-00695): originally Christian v. Nigrelli: On October 10, 2024,Judge John Leonard Sinatra, Jr. ruled: “Regulation in this area is permissible only if the government demonstrates
that the new enactment is consistent with the Nation’s historical tradition sufficiently analogous rules. New York fails that test here. Indeed, property owners have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the long-established Second Amendment rights of law-abiding citizens who seek to carry for self-defense on private property open to the public.”
Background: Oral arguments were held on Sept. 12. Judge John Leonard Sinatra, Jr. stated that he would not rule on the public park question since the US Court of Appeals for the Second Circuit is addressing that issue. He will rule on the “vampire rule,” the prohibition against carrying a gun on private property unless the gun owner has the landowner’s consent.
Although “A preliminary injunction, effective immediately from enforcing N.Y. Penal Code § 265.01-d concerning private property open to the public” was issued by Judge Sinatra on Nov. 22, 2022, the U.S. Court of Appeals for the Second Circuit issued a stay on Dec. 12, 2022. This SAF case filed in the US District Court for the Western District of New York challenges the enactment of S51001.
Pennsylvania: Third Circuit
Suarez v. Evanchick: Case # 1:21-cv-00710-CCC: During September, both parties filed a motion concerning final judgment.
Background: This case was initially filed on April 16, 2021, during the COVID-19 pandemic. It was filed due to Governor Thomas Wolf’s three emergency declarations since 2018. In addition, Wolf also vetoed House Bill 1747 (“HB 1747”), whichwould have lifted the carry ban under Section 6107, despite an express opportunity to change the State’s policy in this limited regard.
A pre-trial schedule was finally set on July 1, 2022. On Sept. 13, 2022, the plaintiffs filed a Second Motion for Summary Judgment. On May 16, 2024, the proceedings were stayed pending the U.S. Supreme Court’s disposition of United States v. Rahimi.
On July 25, 2024, the Court declared that multiple Pennsylvania laws requiring permits to open carry were unconstitutional. The Court also declared the requirements for a License to Carry Firearms to open carry in a vehicle and during a state of emergency unconstitutional. On July 26, the Defendant Commissioner of the Pennsylvania State Police appealed to the United States Court of Appeals for the Third Circuit.
Oregon: Ninth Circuit
Montgomery v. Rosenblum: Case # 3:24-cv-01273: This case, filed in August 2024, is seeking to overturn Oregon’s HB2005 passed and signed during the 2023 legislative session that bans the manufacture, importation, sale, transfer, or possession of unserialized firearms, among other things. On August 7, the defendants, the state of Oregon, filed a motion for a Temporary Restraining Order, which was denied on Oct. 20. On Oct. 8, the plaintiffs filed an amended complaint for Declaratory, Injunctive, or Other Relief.
Firearms Policy Coalition, Second Amendment Foundation v. Merrick Garland: Case 4:24-cv-00565-O: On October 21, 2024, Plaintiffs filed a brief in support of a motion for summary judgment against the ban on carrying firearms in U.S. Post Offices in 18 U.S.C. § 930(a) and 39 C.F.R. § 232.1(l). Am analysis by attorney Mark W. Smith can be found on YouTube.
State Courts
Michigan Supreme Court
Wade v. University of Michigan: Case #166067: The Michigan Supreme Court on October 18, 2024, denied the review of the July 20, 2024 appeal from Michigan Court of Appeals that the University of Michigan’s ban on firearms on its campus violates the Second Amendment. Interestingly, this case has been held in abeyance since 2017. In an article in Reason magazine, noted Second Amendment scholar Eugene Volokh quoted from the dissent in this case: “[T]he Court of Appeals disregarded the analysis required by the United States Supreme Court for Second Amendment disputes and invented a confusing four-factor test that bears almost no resemblance to the Supreme Court’s test.”
