By Tanya Metaksa
What’s New—Range v. Lombardo: In this precedential case the US Court of Appeals for the Third Circuit’s opinion issued on June 6 stated, “Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in- possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.” Oregon: Ninth Circuit
Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, and Azzopardi v. Rosenblum (the Oregon consolidated case): Trial began on June 5, 2023. On June 6 the state of Oregon filed a motion for judgment on partial findings; Mock v. Garland (stabilizing braces) The US Court of Appeals for the Fifth Circuit issued a preliminary injunction on May 23 that covers “only to the customers and members whose interest have represented since day one of the litigation”. Plaintiff-Appellants filed an opening brief on June 5. Oral arguments are scheduled for June 29; Another stabilizing braces case—Watterson v. ATF: (Texas Eastern)—On June 7 an order for a Preliminary Injunction was issued. Judge Mazzant wrote, “In light of the Fifth Circuit’s injunction in Mock, the Court believes the proper recourse is to issue an injunction that enjoins Defendants from enforcing the rule against Watterson pending the Fifth Circuit’s decision.”; Miller v. Bonta and South Bay Rod & Gun Club, Inc v. Bonta :On March 20, 2023 Judge Benitez ruled that (assault weapons ban—fee shifting provisions) § 1021.11 of the California Code of Civil Procedure is unconstitutional. On June 5 “Plaintiffs, Defendants, and Intervenor-Defendant have now reached an agreement regarding costs and fees, and jointly request that the Court enter the accompanying proposed order effectuating the agreement.” The total approved settlement for both Miller v. Bonta and South Bay Rod & Gun Club, Inc v. Bonta will cost the state of California a total of $556,957.66! Boland v. Bonta: Another amicus brief in support of Plaintiffs-Appellees with Stephen P. Holbrook as the Counsel of Record for Amici Curiae filed June 2, 2023; Santucci v. City and County of Honolulu: This is a 2022 lawsuit filed against the city/county of Honolulu in which the city was requiring any applicant for firearm registration to provide written certification from a medical doctor, The order filed on May 22 , 2023 is for a permanent injunction against Honolulu and payment of costs to the plaintiff.
Supreme Court of the United States
Currently there are fire (5) petitions for certiorari pending before SCOTUS on cases that have a nexus to the Second Amendment. 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 response deadline of May 24, but a motion has been fired 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.”
Stabilizing Braces
Cases challenging the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on January 31, 2023: Mock v. Garland: (Texas Northern District)—This case was brought by Firearms Policy Coalition on January 31, 2023 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” became effective June 1, 2023. US Court of Appeals for the Fifth Circuit on May 23 issued an order granting the appellants’ opposed motion for a preliminary injunction. The court has clarified as to who this injunction actually covers: “only to the customers and members whose interest have represented since day one of the litigation.” Plaintiff-Appellants filed an opening brief on June 5. Oral arguments are scheduled for June 29.
Watterson v. ATF: (Texas Eastern)—On June 7, an order for a Preliminary Injunction was issued. Judge Mazzant wrote, “In light of the Fifth Circuit’s injunction in Mock, the Court believes the proper recourse is to issue an injunction that enjoins Defendants from enforcing the rule against Watterson pending the Fifth Circuit’s decision.”
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, 2023 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, 2023, the Government shall file separate responses to each motion. On June 9, 2023, Plaintiffs shall file separate replies to each response.
Texas: Fifth Circuit: McRory v. Garland: A lawsuit challenging the law that “took effect on November 14, 2022 and mandate(d) 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. 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
Pennsylvania: Third Circuit
Range v. Lombardo: In this precedential case the US Court of Appeals for the Third Circuit’s opinion issued on June 6 stated, “Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in- possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among ‘the people’ protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.”
Almost 20 years ago Bryan Range pled guilty to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. He was sentenced to three years” probation and paid over $2,800 in costs and fines. At the time of his sentencing (1995) this crime was classified as a misdemeanor but was punishable by up to 5 years’ imprisonment. Since he faced the possibility of five years’ imprisonment, Federal law precluded him for possessing a firearm. After being rejected by NICS Range then sued in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration that § 922(g)(1) violates the Second Amendment as applied to him. In 2021 the District Court granted the Government’s motion using the two-step framework. Range then appealed and during the appeal process the Supreme Court decided Bruen. The three judge panel of the US Court of Appeals for the Third Circuit, after supplemental briefing as a result of the Bruen decision had been submitted, then affirmed the District Court’s decision. Range then petitioned for a rehearing en banc, which was granted. The June 6 opinion states,“Even if the 1938 Act were ‘longstanding’ enough to warrant Heller’s assurance—a dubious proposition given the Bruen Court’s emphasis on Founding- and Reconstruction-era sources, 142 S. Ct. at 2136, 2150—Range would not have been a prohibited person under that law. Whatever timeframe the Supreme Court might establish in a future case, we are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of “longstanding” for purposes of demarcating the scope of a constitutional right. So the 1961 iteration of § 922(g)(1) does not satisfy the Government’s burden.
Judge David Porter wrote a separate concurring opinion (found at the end of the opinion) that is a well-researched and very thorough concerning Second Amendment jurisprudence. Worth a read.
Oregon: Ninth Circuit
Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, & Azzopardi v. Rosenblum (the Oregon consolidated case): These cases were initiated in November 2022 challenging Oregon’s Measure 114. On Dec. 6. 2022 Judge Karin J. Immergut denied a preliminary injunction. After the Oregon cases were consolidated, the court granted the defendants’ (Oregon state) motion to continue postponing the enforcement of Measure 114’s permitting requirements. On May April 14, motions for a Preliminary injunction were denied as MOOT. 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. On May 15 the plaintiffs filed a Daubert motion, a motion seeking to exclude expert witness testimony, against several of the government’s witnesses. On May 26. Judge Immergut issued an order denying defendants’ motion for partial summary judgment and denying plaintiffs’ motion for summary judgment. The Trial began on June 5: First Day of Court Trial. Opening statements given. Witnesses called, sworn, and testify. Exhibits offered and received. Court Trial is continued to 6/6/2023 at 09:00AM in Portland Courtroom 13A before Judge Karin J. Immergut. Leonard W. Williamson, Stephen J. Joncus, Shawn M. Lindsay, Dan Nichols, James L. Buchal, Mathew Rowen, Nicholas Gallagher, Christian Cho present as counsel for plaintiff(s). Brian Simmonds Marshall, Harry B. Wilson, Hannah Hoffman, Erin N. Dawson, Anit K. Jindal, Scott Ferron, Zachary J. Pekelis present as counsel for defendant(s). Court Reporter: Jill Jessup. Judge Karin J. Immergut presiding. On June 6 Ellen Rosenblum, OR Attorney General, issued a motion to “move for judgment on partial findings as to plaintiffs’ Counts I, V, and VI.”
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: 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:
In an article from Duke Law about the two cases, Boland v. Bonta and Renna v. Bonta: challenging California’s Unsafe Handgun Act, Andrew Willinger discusses the two judges’ decisions. 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.
Miller v. Bonta and South Bay Rod & Gun Club, Inc v. Bonta: On March 20, 2023 Judge Benitez ruled that (assault weapons ban—fee shifting provisions) § 1021.11 of the California Code of Civil Procedure is unconstitutional. On June 5 “Plaintiffs, Defendants, and Intervenor-Defendant have now reached an agreement regarding costs and fees, and jointly request that the Court enter the accompanying proposed order effectuating the agreement.”The total approved settlement for both Miller v. Bonta and South Bay Rod & Gun Club, Inc v. Bonta will cost the state of California a total of $556,957.66!
Boland v. Bonta: Another amicus brief in support of Plaintiffs-Appellees with Stephen P. Holbrook as the Counsel of Record for Amici Curiae filed June 2, 2023.
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 were due June 5; 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 an announcement stating, “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.
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” ban in places of public assembly will proceed in federal court.
Firearms Industry Lawsuits
Texas: Fifth Circuit
Second Amendment Foundation (SAF) v. ATF: Another preliminary injunction was issued against the ATF’s ban on pistols equipped with stabilizing braces. Judge Jane L. Boyle followed the US Court of Appeals for the Fifth Circuit’s opinion issued on May 23.
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.
