By Tanya Metaksa
What’s New—In the past week Second Amendment jurisprudence cases have had more activity than normal. On March 18 Fox News reported DOJ appeals to Supreme Court (SCOTUS) after the Fifth Circuit Court invalidates domestic violence restraining order gun ban. This case is United States v. Zackey Rahimi. The DOJ is appealing to the US Supreme Court (SCOTUS) a Fifth Circuit Court ruling that struck down a federal law banning people who were under any restraining orders from owning firearms.
The tandem hearing in New York’s UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT before a three-judge panel was held. According to Attorney Mark W. Smith @fourboxesdiner the three judge panel was “underwhelming” in their Second Amendment jurisprudence. The cases included Christian v. Nigrelli (a ban on carrying on private property without permission); Hardaway v. Nigrelli and Spencer v. Nigrelli (both cases against the ban on guns in religious venues, but Spencer argues the issue on the 1st Amendment rights of the freedom to exercise religious beliefs); Antonyuk, et al v. Hochul (a lawsuit against the entire CCIA);and Gazzola v. Hochul (firearms businesses).
Also on March 20 Judge Cormack J. Carney issued a Preliminary Injunction Order determining that the California Unsafe Handgun Act’s provisions…are unconstitutional in the Boland v. Bonta case. In Renna v. Bonta , another Unsafe Handgun Act case, Judge Dana M. Sabraw has set a telephonic status conference for March 22, 2023.
On the same Monday Judge Benitez ruled in Miller v. Bonta (assault weapons ban) that § 1021.11 of the California Code of Civil Procedure is unconstitutional. We can assume that this will be appealed to the Ninth Circuit Court of Appeals.
Additional new items: Schoenthal v. Raoul: Plaintiffs file a memorandum seeking summary judgement and an injunction in this case concerning licensees carrying firearms on public transportation; United States v. Missouri: The this was to be fully briefed by March 20, 2023 after the Circuit Court amended its March 9th order “to reflect that the motion to stay pending appeal shall be fully briefed for the Eighth Circuit’s consideration by March 20, 2023.” Yet as of March 21 no briefings had yet been filed.
Lawsuits challenging Federal Law:
United States v. Zackey Rahimi: This is a case of a man who was involved in five shooting in and around Arlington, Texas between Dec. 2020 and Jan. 2021. He was also under an agreed civil protective order that expressly prohibited him from possessing a firearm and he was indicted for a violation of U.S.C§ 922(g)(8). The Fifth District Court held that when Rahimi was charged with violating U.S.C§ 922(g)(8) he was not a felon so he was not prohibited from owning firearms. Attorney General Merrick Garland on March 18 announced that the DOJ would be filing cert (an appeal) with SCOTUS and asking that the Supreme Court that the federal law remain in place while they review the Fifth Circuit’s findings.
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
Polymer80 v. Garland is the latest addition to the two lawsuits filed against BATFE’s Frame or Receiver ruling. It joins VanDerStok v. Garland in Judge Reed O’Connor’s Courtroom. O’Connor has put this case on an expedited timetable. On March 13 a scheduling order was filed requiring a joint report from both the plaintiffs and the defendants on or before April 10, 2023. In the VanDerStok v. Garlandcase both Defense Distributed and BlackHawk Manufacturing have been granted Preliminary injunction to allow then to continue manufacturing gun parts. The other lawsuit, Morehouse Enterprises v. ATF, the plaintiffs are currently seeking an appeal of Judge Peter D. Weite’s denial of a preliminary injunction in the Court of Appeals for the Second Circuit.
Lawsuits challenging State Laws
New York: Second Circuit: Five cases listed below were the subject of “expedited appeals” on March 20, 2023” by the US Court of Appeals for the Second Circuit.Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining orders, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI.
Christian v. Nigrelli:, Although “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022, the U.S. Court of Appeals for the Second Circuit issued a stay on Dec. 12, 2022.
Hardaway v. Nigrelli: NY Judge John L. Sinatra, Jr. ruled on Oct. 10 that the section of NY’s new CCIA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional and granted a preliminary injunction stopping the enforcement of this section of the CCIA.
Spencer v. Nigrelli: The plaintiffs in this case, the state of NY, are awaiting the result of the Hardaway case before appealing to the US Court of Appeals for the Second Circuit.
Antonyuk, et al v. Hochul:. This lawsuit challenges “various provisions of New York’s newly minted and ineptly named “Concealed Carry Improvement Act (CCIA)”. It was filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay.
Gazzola v. Hochul: This case filed on Nov. 1, 2022 challenges most parts of New York State gun laws enacted between May 30, 2022 and July 1, 2022. The lawsuit includes 125 complaints against these laws.Judge Brenda K. Sannes denied plaintiffs’ motion for a TRO or a Preliminary Injunction (PI) and subsequently plaintiffs appealed to the US Court of Appeals for the Second Circuit.
Other current New York cases in the Second Circuit: Another case that addresses guns in places of worship is Goldstein v. Hochul that was brought by a congregant and the Congregation of Bnei Matisyahu in Brooklyn, NY.
California: Ninth Circuit:
Boland v. Bonta: On March 20, Judge Cormack J. Carney issued an Order determining that the California Unsafe Handgun Act’s provisions…are unconstitutional. He also ruled that This preliminary injunction shall not take effect until fourteen days from the date hereof to allow the government to file an appeal and seek a further stay of this preliminary injunction.The full text of Judge Carney’s ruling can be found here.
CASES BEING TRIED TOGETHER in Judge Benitez’ courtroom and an opinion is expected to be published in late March or April 2023.
Miller v. Bonta: On March 20, 2023 Judge Benitez ruled that (assault weapons ban) § 1021.11 of the California Code of Civil Procedure is unconstitutional. We can assume that this will be appealed to the Ninth Circuit Court of Appeals.
Duncan v. Bonta: (large capacity magazines) The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary by @KostasMoros on Twitter can be found here. This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines with over ten rounds.
Rhode v. Bonta: (ammunition purchase restrictions) Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here.
Miller v. Bonta: (assault weapons ban) Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here.
Illinois: Seventh Circuit
Cases currently in the federal court system challenging the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.: Accuracy Firearms, LLC et al v. Pritzker; Langley v. Kelly; and Barnett v. Raoul:
Other Illinois cases:
Schoenthal v. Raoul: The case deals with firearms licensees carrying on public transportation. It was filed in September 2022 and on March 1 the plaintiffs filed a memo in support of summary judgement and a permanent injunction. The case is being brought by the Second Amendment Foundation and a synopsis is available.
