By Tanya Metaksa
What’s New—SCOTUS: Bevis v. Naperville & State of Illinois: the application for certiorari to SCOTUS was denied by Justice Amy Coney Barrett on May 17; Mock v. Garland: US Court of Appeals for the Fifth Circuit on May 23 issued an order granting the appellants’ opposed motion for a preliminary injunction. The appellants have requested clarification as to who exactly this injunction actually covers; Illinois: US Court of Appeals for the Seventh Circuit—National Association for Gun Rights v. City of Naperville, IL & the state of Illinois, also known as Bevis v. City of Naperville, IL & the state of Illinois: On May 12 US Court of Appeals for the Seventh Circuit issued a scheduling order; Michigan: Mueller v. OXFORD COMMUNITY SCHOOL DISTRICT: Judge Mark A. Goldsmith denied the plaintiffs’ motion for reconsideration; Minnesota: State of Minnesota in Court of Appeals—Kilde v. Stahnke: Under current Minnesota law Judge Louise Dovre Bjorkman ruled that the plaintiffs, Jeremy Michael Kilde, prohibition to purchase a firearm had a 3-year statute of limitations, not a lifetime limitation and therefore he was eligible for a transferee permit; Worth v. Harrington: On May 17 the defendants, the state of Minnesota, filed a notice of appeal to the 8th Circuit; Texas: Fifth Circuit: McRory v. Garland: A lawsuit challenging the law that “took effect on Nov. 14, 2022 and mandate an automatic, nationwide, indefinite waiting period on every prospective firearm purchaser who is at least 18 years of age but under 21 years of age, delaying the exercise of and thereby infringing the right to keep and bear arms for this entire category of ‘the people’”; Mock v. Garland: On May 17 the plaintiffs filed an Emergency Motion for Injunction pending appeal as “the Rule” is scheduled to become effective June 1, 2023. Hartford v. Ferguson: On May 18 defendants Enright and Gene filed a motion to dismiss; Koons v. Reynolds and Siegle v. Platkin: The ANJRPC, the NJ State Rifle & Pistol Association, has a very good legal analysis of the recent decision in this case; Fraser v. BATFE: On May 19, 2023 Judge Robert E. Payne ordered a new schedule in this case: on May 22 Plaintiffs shall file a motion for class certification and a motion for an injunction; NSSF v. Platkin:On May 5, Idaho Attorney General Raoul Labrador filed an amicus brief in conjunction with attorneys general from 18 other states in support of the NSSF’s opposition to the NJ laws. This case is currently before the US Court of Appeals for the Third Circuit; Yukutake v. Shikada: In this lawsuit challenging Hawaii’s baton carry ban the state agreed to be enjoined from enforcing the law, and said it would pay the plaintiffs $50,000 for their legal fees on May 23.
Supreme Court of the United States
Currently there are five (5) petitions for certiorari pending before SCOTUS on cases that have a nexus to the Second Amendment. The latest is Bevis v. Naperville & State of Illinois: The application for certiorari to SCOTUS was denied by Justice Amy Coney Barrett on May 17. The remaining pending cases include: Garland v. Cargill, the federal bump stock ban (see below); United States v. Rahimi, domestic violence restraining order gun ban, a motion has been filed to extend response time to 6/16/23; Joshua Seekins v. United States, a question of flare gun shells; and NRA v. Vullo, a First Amendment claim against New York’s Department of Financial Services (DFS). The Court has requested a response in Vullo with a deadline of May 24, but a motion has been filed to extend that deadline to June 23. In Cargill. As the decision in Hardin v. ATF (see below) joins Cargill in splitting the Circuit Courts’ decisions over the bump stock ban, Andrew Willinger opines that it “appreciably increases the odds that the Court will decide to grant certiorari in Cargill.”
Lawsuits challenging Federal Agencies:
Bumpstock ban
Three cases challenging the Federal Bumpstock ban are still viable:
Cargill v. Garland Case: 20-51016. On April 4 DOJ filed a motion that it intends to petition the Supreme Court for a writ of certiorari. A copy of the writ was sent April 6. On April 14, the plaintiffs requested that the Circuit Court continue the stay until May 16. There have been two prior bumpstock cases in which SCOTUS has denied certiorari: Aposhian v. Garland (Tenth Circuit) and GOA v. Garland (Sixth Circuit). Both of those cases were denied on October 3, 2022.
Stabilizing Braces
Three cases challenging the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on Jan. 31, 2023: Mock v. Garland: This case was brought by Firearms Policy Coalition on Jan. 31 asking for a Vacatur of the ATF action and/or a preliminary injunction. On March 30 District Judge Reed O’Connor denied both requests of the plaintiffs. On that same date the plaintiffs requested a preliminary injunction of the rule pending appeal and filed an appeal to the US Court of Appeals for the Fifth Circuit. On May 17, the plaintiffs filed an Emergency Motion for Injunction pending appeal as “the Rule” is scheduled to become effective June 1. US Court of Appeals for the Fifth Circuit on May 23 issued an order granting the appellants’ opposed motion for a preliminary injunction. The appellants have requested clarification as to who this injunction actually covers.
Britto v. BATFE, and Harrel v. Raoul: Although these cases are not concerned primarily with “stabilizing braces,” but In the preliminary injunction Judge Stephen P. McGlynn writes, “Thus, arm braces are an integral part of the meaningful exercise of Second Amendment rights for such individuals” and on April 28 the plaintiffs filed a motion about ATF Director Steve Dettelbach’s “erroneous congressional testimony” on April 26 as well as informing the court of the opinion in Hardin v. ATF.
BATFE regulation regarding 18-20 year old gun owners
Virginia: Fourth Circuit: Fraser v. ATF: This case concerning BATF’s regulation against those 18-21 years of age from purchasing firearms began in 2022. On May 10 Judge Robert E. Payne struck down the federal law banning FFLs from selling handguns to adults between 18 and 20 years of age and then on May 19, a new schedule was ordered — Plaintiffs shall file a motion for class certification and, separately, shall file a motion for an injunction and briefs in support thereof. On June 2, the Government shall file separate responses to each motion. On June 9, Plaintiffs shall file separate replies to each response.
Texas: Fifth Circuit: McRory v. Garland: A lawsuit challenging the law that “took effect on Nov. 14, 2022 and mandated an automatic, nationwide, indefinite waiting period on every prospective firearm purchaser who is at least 18 years of age but under 21 years of age, delaying the exercise of and thereby infringing the right to keep and bear arms for this entire category of ‘the people.’”
BATFE classification of short-barrel firearm
Firearms Regulatory Accountability Coalition (FRAC) and Franklin Armory v. BATFE: In January 2023 this suit was filed in US District Court for the Western District of North Dakota. The plaintiffs allege that the BATFE misclassified Franklin Armory’s FA!-15 Antithesis as a “short-barreled rifle (SBR)” under both the National Firearms Act (NFA) and the Gun Control Act (GCA). Dave Workman covered the initial filing of this case. Since January the defendants have moved to dismiss and in April the plaintiffs made a motion for summary judgment. Now on May 5 BATFE sent a letter to Franklin Armory changing the classification of “the Reformation firearms to classify each as a “shotgun” under both the GCA and the NFA.” Prior to this letter these firearms were not considered NFA firearms.
Lawsuits challenging State Laws
Hawaii: Ninth Circuit
Yukutake v. Shikada: Appellees (Yukutake) have filed opposition to the defendant’s motion to dismiss. On appeal from the US District Court for the District of Hawaii this case concerning HI registration laws is scheduled of oral arguments on Feb. 14, 2023.
Minnesota: Eight Circuit
Worth v. Harrington: Minnesota’s 2003 Citizens’ Personal Protection Act required applicants to be “at least 21 years of age.” In this case three plaintiffs under the age of 21 brought suit against their respective sheriffs for enforcing the Minnesota statute. Judge Katherine Menendez on March 31 stated that Minnesota Law requiring “a person must be at least 21 years of age to receive a permit to publicly carry a handgun in Minnesota violates the rights of individuals 18-20 years old to keep and bear arms protected by the Second and Fourteenth Amendments.” As of April 1 Judge Menendez put a hold on entering final judgement until the MN AG’s emergency order is ruled upon. The Plaintiffs filed their response to a stay on April 5. On April 24 Judge Menendez GRANTED the Commissioner’s Motion for a Stay. On May 17 the defendants, the state of Minnesota, filed a notice of appeal to the 8th Circuit.
New Jersey: Third Circuit:
Koons v. Reynolds and Siegle v. Platkin: On Tuesday Judge Bumb issued an opinion and an order. She wrote:“Accordingly, on balance, the Court finds that the final PI factors weigh in favor of granting Plaintiffs’ motions for preliminary relief…In conclusion, the Second Amendment’s “right to bear arms in public for self-defense is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald, 561 U.S. at 780). That does not mean, however, that the right is ‘unlimited.’ Heller, 554 U.S. at 626. The Constitution leaves the States ‘some measures’ to combat handgun violence. Id. at 636. But what the Second Amendment prohibits the States from doing, and what the State of New Jersey has done here with much of Chapter 131, is to ‘prevent[] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.’ Bruen, 142 S. Ct. at 2156.That is plainly unconstitutional.”Her order granted most of the plaintiffs’ motions. The state of New Jersey immediately appealed to the United States Court of Appeals for the Third Circuit. An interesting sidenote is Everytown’s immediate response to this decision: “prohibiting guns in sensitive public locations like libraries, zoos and bars is entirely consistent with the Second Amendment.”
The judge held a hearing on March 17 that resulted in both the plaintiffs and the NJ government filing more response briefs in late March. On Monday, Jan. 30, Judge Renee Marie Bumb issued a Temporary Restraining Order“shall REMAIN IN EFFECT pending a hearing and ruling on Plaintiffs’ Motion for a Preliminary Injunction.”The injunction stopped the ban on carrying guns in public parks, beaches and in casinos. This PI adds to the judge’s previous injunction against bans where alcohol is served, public libraries, museums, entertainment facilities, and private property without owner’s explicit consent. On Jan 24th the presiding officers of the New Jersey Senate and the General Assembly filed a motion to allow them to intervene. Judge Renee Marie Bumb on Jan. 9 issued her first order,“the motion for a temporary restraining order will be GRANTED,”and wrote thatthe new law“essentially renders the entire state of New Jersey a ‘sensitive place’ where firearms are prohibited.”After the Judge Bumb’s ruling the ANJRPC requested to consolidate the Siegle v. Platkin caseand the Koons v. Reynolds cases. The Koons case is being supported by the Second Amendment Foundation, Firearms Policy Coalition and several other groups. The Siegel case is supported by the National Rifle Association (NRA) and the Association of New Jersey Rifle & Pistol Clubs, Inc.(ANJRPC).
NSSF v. Platkin:NSSF filed this lawsuit againstA1765. A1765, a bill that allowed lawsuits against members of the firearms’ industry in contravention of federal law, was signed by Gov. Phil Murphy after the Bruen decision. NSSF sought in November 2022 a Preliminary Injunction (PI) and on Jan. 31, Judge Zahid N. Quraishi granted the PI. On Feb. 2, the state of NJ filed a notice of Appeal to the US Court of Appeals for the Third Circuit. On Feb. 7 the state of NJ informed Judge Quraishi that it would be filing a motion requesting a Stay pending Appeal. After a supporting motion was made by the defendants (NJ) and plaintiffs (NSSF) on March 3 Judge Quraishi denied the states motion for a stay pending Appeal. As a result, the preliminary injunction of “Section 58-35” of NJ statutes remains in effect. On May 5 Idaho Attorney General Raoul Labrador filed an amicus brief in conjunction with attorneys general from 18 other states in support of the NSSF’s opposition to the NJ laws.
New York: Second Circuit: Five cases listed below were the subject of “expedited appeals” on March 20 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: the cases are: Christian v. Nigrelli, Hardaway v. Nigrelli, Spencer v. Nigrelli, Antonyuk, et al v. Hochul, and Gazzola v. Hochul.
Hardaway v. Nigrelli: The state of New York informed the court that the organization plaintiffs, Hardaway and Boyd, as church leaders, now since the passage of a recently enacted amendment to the CCIA, which took effect on May 3, 2023 have made their action moot.
Christian v. Nigrelli: The state of NY informed the court of a change in NY law that does not have any effect on this case.
California: Ninth Circuit:
Boland v. Bonta: California’s appeal to the Court of Appeals for the Ninth Circuit. After 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, it took almost a week for Attorney General Raoul to announce that California will appeal to the Ninth Circuit. California has appealed to the Ninth Circuit and on March 31 the Ninth Circuit issued a stay in part. California’s appeal to the Court of Appeals for the Ninth Circuit.
Renna v. Bonta: Following the PI in Boland v. Bonta, Judge Dana M. Sabraw issued a PI (preliminary injunction) against the California Unsafe Handgun Act’s provisions. Both cases have occurred within a 2-week timeframe. On April 14 CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit; of Appeals and on May 12 California filed its opening brief with the Ninth Circuit in this lawsuit.
Hawaii: Ninth Circuit
Yukutake v. Shikada: In this lawsuit challenging Hawaii’s baton carry ban the state agreed to be enjoined from enforcing the law, and says it will pay the plaintiffs $50,000 for their legal fees on May 23:
Illinois: Seventh Circuit
A consolidation of cases—Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Langley v. Kelley: This lawsuit began as a complaint against the new Illinois gun law. Judge Kendall of the United States District Court for the Northern District of Illinois eastern division denied the plaintiffs motion for a preliminary injunction. On May 1 the case was appealed to the US Court of Appeals for the Seventh Circuit and the plaintiffs filed a motion for an injunction pending appeal. On April 18, the Court of Appeals denied the motion. The original plaintiffs then made an emergency appeal to the US Supreme Court, where Justice Amy Coney Barrett, the Justice that responds to appeals from the Seventh Circuit, was the Justice in charge. The question that was asked of SCOTUS in this appeal was Can the government ban the sales, purchase and possession of certain semi-automatic firearms and firearms magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by D.C. v. Heller and NYSRPA v. Bruen?In Justice Barrett’s response to this application she directed the defendants to answer why these laws do not violate the Second Amendment with the response due by noon on May 8. The law firm of Clement & Murphy on behalf of NSSF filed a brief responding to Justice Barrett’s query arguing that AR-15s and their magazines are protected under the Second Amendment. That section of their brief can be found here.
National Association for Gun Rights v. City of Naperville, IL & the State of Illinois, also known as Bevis v. City of Naperville, IL & the state of Illinois: On May 12 US Court of Appeals for the Seventh Circuit issued a scheduling order: 1. Briefs for governmental parties are due June 5, 2023; 2. Briefs for plaintiffs are due June 19, 2023; and 3. Reply briefs are due June 26, 2023. No Motions to extend dates will be entertained. Arguments will be on the morning of June 29.Judge Stephen Patrick McGlynn on April 28issued a temporary injunction against the new Illinois gun ban law, but on May 5, 2023 Appellate Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals blocked the temporary injunction. Interestingly Judge Easterbrook was the judge who also issued an opinion in McDonald V. Chicago that was then overturned by SCOTUS.
Additionally, on May 5 the IL. State Police issued am announcement that stated, “In consultation with the Illinois Attorney General’s Office, if the purchase of a firearm or firearm attachment banned under PICA was initiated but not completed between the date of the Southern District of Illinois’ Order on April 28, 2023, until the stay of such Order by the U.S. Appellate Court on May 4, 2023, the delivery of such weapon would be unlawful pursuant to 720 ILCS 5/23-1/9(b).” This announcement was made even though PICA does not go into effect until Jan. 1, 2024.
Louisiana: Fifth Circuit
Reese v. ATF: This is a case filed by FPC, NRA and SAF which was decided in favor of the ATF on December 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. It is challenging the ban on licensed handgun sales to law-abiding 18-to-20-year-old adults. A brief for the appellees (FPC, NRA and SAF) was filed on May 12, 2023.
Maryland: Fourth Circuit
Novotny v. Moore: Before the ink had dried on Maryland Governor Wesley Moore’s signature on SB1, the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Maryland Shall Issue (MSI) and three individuals filed a lawsuit challenging the constitutionality of the new Maryland law. SAF Executive Vice President Alan Gottlieb alleged, “Maryland lawmakers scrambled to make gun laws more restrictive than they were before. Indeed, the additional restrictions make it nearly impossible to legally carry firearms for personal protection, even on public land.”
Maryland Shall Issue v. Montgomery County: This case has been in litigation before Bruen. The current case which is before the Fourth Circuit deals with the Second Amendment challenge to the Handgun Qualification License (HQL). This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a HQL. The suit alleges that the HQL requirements, both as set forth in the statute, and as implemented by the Maryland State Police, violate the Second Amendment of the Constitution by placing unjustifiable and overwhelming burdens on the right of law-abiding citizens to purchase a handgun for the home. Now the Circuit Court has remanded, as requested by Montgomery County, several counts back to the District Court, but the “ghost gun” in places of public assembly will proceed in federal court.
Oregon: Ninth Circuit
Azzopardi v. Roseblum: Although this case is under consolidation with several other cases, on May 8 Azzopardi et al filed a motion seeking relief from Oregon’s “flat ban on firearm acquisition in the State” that they allege is likely to occur before a permitting system is instituted by the state by asking the Court for a declaratory judgement and injunctive relief.
Oregon Firearms Federation v. Kate Brown: In the consolidated case the plaintiffs filed a motion for summary judgment or, in the alternative, trial brief on May 12. On May 15 the plaintiffs filed a Daubert motion, a motion seeking to exclude expert witness testimony, against several of the government’s witnesses.
Firearms Industry Lawsuits
Texas: Fifth Circuit
USA v. Paola Connelly: Defendant, Paola Connelly, sought a motion for reconsideration that was granted by Judge Katherine Cardone dismissing the charges against Connelly’s charges were DISMISSED. Cardone wrote: “922(g)(3) and (d)(3) are unconstitutional, saying the former is like “a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends.” This case has some similarities to the United States v. Zackey Rahimi as they both deal with federal law sections 922(g)(3) and (d)(3).
Washington: Ninth Circuit
NSSF v. Ferguson: On May 4, 2023 NSSF filed a motion for a preliminary injunction. The Court then set a hearing date of July 27 with oral arguments before Judge Mary K. Dimke.
Banta v. Ferguson, challenging recently signed WA assault weapons ban, is set for a hearing on a preliminary injunction before Judge Mary K, Dimke on July 27.
Hartford v. Ferguson:A lawsuit against Washington’s ban on “assault weapons” in theUnited States District Court for the Western District of Washington with both FPC & SAF supporting this lawsuit.A motion for a temporary injunction was filed on May 4, 2023. On May 18 defendants Enright and Gene filed a motion to dismiss.
Lawsuits before State Courts
Illinois: Caulkins v. Pritzker: On Tuesday the Illinois Supreme Court Justices heard oral arguments in this case. According to thecenterquare.com, the court took the matter under “consideration and to could rule in the months ahead”
Originally No. 2023-CH-3 that was before the Circuit Court of the Sixth Judicial Circuit, Macon County, IL. This case was directly appealed to the Supreme Court of Illinois after the Circuit Court ruled in favor of the plaintiffs ruling that the law, that passed the legislature on its last day of the 2022 session, was unconstitutional. That bill became Public Act 102-1116 §25. In a motion to the Supreme Court of Illinois the plaintiffs questioned the impartiality of two new justices, who were elected to their positions in 2022, asking the Court to recuse said justices. Both these justices received $1 million each in campaign donations from Governor Pritzker.
Both Justices filed motions denying the motion to recuse. Justice Elizabeth Rochford wrote, “That contributors to my campaign committee might appear as counsel or parties before this court does not require my recusal from this case. Our supreme court rules specifically allow a judicial candidate’s campaign committee to solicit and accept reasonable campaign contributions and public support from lawyers.” Justice Mary O’Brien’s motion stated, “Because plaintiffs have failed to sufficiently plead any facts that would require disqualification under Rule 2.11 of the Code of Judicial Conduct, I am required under Rule 2.7 to hear and decide the instant appeal.”Finally, the Court issued a terse motion, IT IS ORDERED that, because disqualification in this Court is a decision that rests exclusively within the determination of the individual judge, appellees’ request that the Court disqualify Justices Rochford and O’Brien is denied.
Jerry Stocks, the attorney for the plaintiffs, commented on the failure of the recusal motion by issuing the following statement:
“We raised a fair question arising from appearances that reasonably informed the grounds for recusal and stand by the content of our Motion. Ultimately, each justice must make an independent evaluation whether a party to the appeal seeks that evaluation or not. In this respect, the suggestion that as movants raising the issue that we had a burden of proof to show actual impartiality on the part of the justice is a contention with which we disagree. The decision has been made and we turn to the merits of the challenge to the facially unconstitutional law. It is premature to determine the remedy, if any, for the participation of the Justices if our view is valid.”
Michigan: Mueller v. Oxford Community School District: This is a multi-plaintiff case against firearms dealers based on negligence which were based on state-law claims, that had been dismissed. Mueller sought reconsideration that was denied.
Minnesota: State of Minnesota in Court of Appeals—Kilde v. Stahnke: Under current Minnesota law Judge Louise Dovre Bjorkman ruled that the plaintiff’s, Jeremy Michael Kilde, prohibition to purchase a firearm had a 3-year statute of limitations, not a lifetime limitation and was therefore he was eligible for a transferee permit.
Washington: Guardian Arms v. Inslee: This lawsuit seeking a preliminary injunction against the new “assault weapons” ban was filed in Grant County, but at a hearing on May 12 the judge ruled in favor of the state of Washington’s motion to move the case toThurston County.
