By Tanya Metaksa
What’s New—Texas Gun Rights v. BATFE: New complaint brought on June 6 in the US District Court for the Northern District of Texas on the BATFE Pistol Brace rule that became effective June 1. This is the fifth lawsuit filed on this issue in this district; The Ninth Circuit Court in San Francisco will be hearing at least two gun cases in August: Abrera v. Newsom on August 22, 2023 and Boland v. Bonta and Renna v. Bonta, challenging California’s Unsafe Handgun Act, on August 23, 2023; 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; Division 80 LLC v. Garland: This case is a lawsuit against ATF rule entitled “Definition of ‘‘Frame or Receiver’’ and Identification of Firearms.” Judge Jeffrey Vincent Brown of the US District Court for the Southern District of Texas issued an opinion and an order on June 12, 2023 granting the government’s motion for summary judgement and denying the plaintiff’s (Division 80 LLC) motion.
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. 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
NOTE: These cases are 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. To date, six Courts, including the US Court of Appeals for the Fifth Circuit, have issued limited injunctions against this BATFE rule that became effective on June 1, 2023.
Texas Gun Rights v. BATFE: New complaint brought on June 6, 2023 in the US District Court for the Northern District of Texas. This is the fifth lawsuit filed on this issue in this Circuit Court.
Mock v. Garland: (Texas Northern District)—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” 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. A responding brief from Michael Cargill was filed on June 7. 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.”
Definition of ‘‘Frame or Receiver’’ and Identification of Firearms, 87 Fed. Reg. 24,652
Division 80 LLC v. Garland: This case is a challenge to the ATF rule entitled “Definition of ‘‘Frame or Receiver’’ and Identification of Firearms.” Judge Jeffrey Vincent Brown of the US District Court for the Southern District of Texas issued an option and an order on June 12, granting the government’s motion for summary judgement and denying the plaintiff’s (Division 80 LLC) motion for an injunction.
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 were ordered to file a motion for class certification and, separately, file a motion for an injunction and supporting briefs. On June 2, the Government was to file separate responses to each motion. On June 9, Plaintiffs were to have filed separate replies to each response.
Texas: Fifth Circuit: McRory v. Garland: A lawsuit challenging the law that “took effect on Nov. 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: This past January, this lawsuit was filed in US District Court for the Western District of North Dakota. The plaintiffs alleges 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 “felon-in-possession” federal law 18 U.S.C. § 922(g)(1)
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.”
BACK STORY: 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, 2023 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 well-researched and very thorough concerning Second Amendment jurisprudence. Worth a read.
Lawsuits challenging State Laws
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 case, 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 was held last week with final arguments last Friday, and according to KOIN News in Portland, “The judge will take time to weigh the arguments before her ruling, which could possibly be appealed all the way up to the U.S. Supreme Court.”
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.
California: Ninth Circuit:
Abrera v. Newsom: In 2022 Mr. Abrera sought a preliminary injunction against California’s fee shifting provisions, similar to the Miller v. Bonta case listed below. On Dec. 9, 2022 Judge Menendez of the US District Court Eastern District of California denied Abrera’s motion. On Dec. 13, Abrera filed an appeal to the U.S. Court of Appeals, Ninth Circuit. Notice of Oral Arguments filed for Tuesday, August 22, in San Francisco, CA.
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. Another amicus brief in support of Plaintiffs-Appellees with Stephen P. Holbrook as the Counsel of Record for Amici Curiae wasfiled June 2, 2023. The Ninth Circuit Court has scheduled Oral Arguments for Tuesday, August 23, 2023, San Francisco, CA.
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!
Illinois: 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: 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.
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.”
