By Tanya Metaksa
What’s New—SCOTUS: certiorari requests—There are four remaining cases awaiting a certiorari decision before SCOTUS. I made an error last week. Two scheduled for conference on Sept. 26: KCI v. Eighth Judicial District (firearms magazines) and Garland v. Cargill (bumpstocks). Two other cases awaiting a decision: NRA v. Vullo, a First Amendment challenge regarding banks doing business with gun rights groups. An NRA reply was filed on July 7 and another bump stock case, Guedes v. BATFE. Back on June 30, U.S. District Judge Roger Benitez in San Diego in the case of Rhode v. Bonta, ordered an in-person hearing on Plaintiffs’ Motion for Preliminary Injunction to be held next Monday, July 17; USA v. Daniels: a case on appeal to the US Court of Appeals for the Fifth Circuit on the constitutionality of § 922(g)(3); Novotny v. Moore: The defendants appear to be taking this case very, very seriously. On June 28 they filed a 70-page Motion to Dismiss with 107 extra exhibits.
Supreme Court of the United States
The remaining cases awaiting a certiorari decision before SCOTUS are four at this time. I made an error last week. Two are scheduled for conference on September 26: KCI v. Eighth Judicial District (firearms magazines) and Garland v. Cargill (bumpstocks). The remaining two are—NRA v. Vullo, a First Amendment challenge regarding banks doing business with gun rights groups, on July 7, 2023 NRA filed a reply and another bump stock case, Guedes v. BATFE
United States v. Zackey Rahimi: SCOTUS has agreed to hear this appeal from the Fifth Circuit during the 2023-2024 term beginning in October. This is a case of a man who was involved in five shootings 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 then he was indicted for a violation of U.S.C§ 922(g)(8). The US Court of Appeals for the Fifth Circuit 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 certiorari (an appeal) with SCOTUS and asking the Supreme Court to keep the federal law in place while they review the Fifth Circuit’s findings. Since that date several notable people and groups have filed amicus curiae: Governor Gavin Newson, Texas Advocacy Project, New York County Lawyers Association, State of Illinois, Joshua Horwitz, Tarrant County Criminal District Attorney and a coalition of Gun Violence and Domestic Violence Prevention Groups. The Gun Violence information is on the Giffords website and the amicus brief is also available there. We expect many more amici curiae will be filed before the 2023-2024 US Supreme Court hears this case.
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
The latest ruling in VanDerStok v. Garland is a huge blow to President Biden’s efforts to unilaterally tighten gun regulations through ATF rule making rather than legislation.
VanDerStok v. Garland: On June 30, Judge Reed O’Connor issued a Memorandum Opinion and Order. The Opinion that VACATED the final rule reads: “This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968. Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule, Definition of ‘Frame or Receiver’ and Identification of Firearms, 87 Fed. Reg. 24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.”In all probability the US DOJ will appeal this to the US Court of Appeals for the Fifth Circuit
Background: On March 2, Judge Reed O’Connor issued a preliminary injunction that granted Defense Distributed, a manufacture of gun parts, the right to keep manufacturing those parts, thus denying BATFE the right to enforce their new rule concerning what parts are considered a firearm receiver. Judge O’Connor’s opinion has evolved from September when he ruled that the “definition of a firearm in the Gun Control Act does not cover all firearms parts” and granted a preliminary injunction to plaintiff Tactical Machining, followed by a Nov. 2 opinion granting the Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 granting BlackHawk Manufacturing Group’s motion for a preliminary injunction.
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 Jan. 31. Six Courts have issued limited injunctions against this BATFE rule that became effective June 1.
NRA v. ATF: On July 3, the NRA filed a motion against ATF’s Final Rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’.” Although the NRA is late to this effort, it is not surprising that they have felt the heat from members as other cases have resulted in injunctions that have been issued for their memberships. The reasoning is spelled out: Because of the Final Rule, the millions of Americans, including many of the nearly 350,000 NRA members in Texas and over four million members nationwide, who own a pistol and a stabilizing brace, regardless of style or caliber or type of brace, must either dispose of, alter, or register their firearms. Otherwise, they face the prospect of 10 years in prison, and large fines. The case was filed in the US District Court for the Northern District of Texas. NRA’s request to intervene was rejected by the court.
Lawsuits challenging firearms ownership and “marijuana possession” in federal law
18 U.S.C. § 922(g)(3)
USA v. Daniels: This case was argued before the US Court of Appeals for the Fifth Circuit on June 5. The recording of the hearing is available. The three judge panel included Judge Jerry Edwin Smith appointed by Ronald Reagan in 1987, Judge Stephen Andrew Higginson appointed by Barack Obama in 2011, and Judge Don R. Willett appointed by Donald Trump in 2017. This appeal arises from a final order of the district court sentencing Mr. Daniels, following a trial, to 46 months in prison for violating 18 U.S.C. § 922(g)(3), which makes it a crime for an unlawful user of a controlled substance, as defined in Title 21, United States Code, Section 802, to knowingly possessing a firearm which was in and affecting interstate and foreign commerce.Briefs before the hearing were only filed by the Federal Public Defender and the Federal Department of Justice (DOJ).
Background: During oral arguments judges asked several questions concerning historical gun laws concerning intoxicated, impaired and mentally deficient persons. On June 7, the Clerk of the Court issued a directive “inviting briefs from amici curiae who wish to supply relevant information regarding the history and traditions on the use and possession of firearms …in this case.” The deadline for filing such briefs was July 6. On that date amici briefs were filed by the Second Amendment Foundation, Firearms Policy Coalitions (FPC) and FPC Action Foundation, Scholars of Second Amendment Law and the Independence Institute, Gun Owners of America, Inc., Gun Owners Foundation, and Tennessee Firearms Association.
“This case raises an important issue regarding the lifetime loss of Second Amendment rights,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “The Court requested amicus briefs regarding historic analogues, and we are happy to oblige.”
In its brief the Second Amendment Foundation writes “zero known laws during the Founding Era itself relation to the possession of firearms by users of illicit or intoxicating drinks or substances, and few known such laws during the 19th century…None of these laws were distinctly similar or relevantly similar to § 922(g)(3).”
Firearms Policy Coalition’s amicus brief discusses the ubiquitous use of firearms while celebrating with intoxicants. They continue to explain, “No historical law completely deprived Americans of Second Amendment rights based solely on their use of intoxicants.”
The brief from Gun Owners of America, Gun Owners Foundation and Tennessee Firearms Association references United States v. Harrison in which “Judge Patrick Myrick “addressing this very issue, our Founders ‘took a scalpel to the right of armed self-defense’ rather than a “sledgehammer.” Those in positions of authority in the late 18th Century never would have agreed to such broad and arbitrary categorizations of Americans, such as in Section 922(g)(3), who could then be prohibited from exercising one of the central pre-existing rights that they had just fought against the British to secure.
These amici briefs are powerful arguments in favor of declaring § 922(g)(3) unconstitutional.
Lawsuits challenging State Laws
California: Ninth Circuit
Rhode v. Bonta: On June 30, U.S. District Judge Roger Benitez ordered a hearing on Plaintiffs’ Motion for Preliminary Injunction to be held July 17.
Background: This case began in 2016 as Rhode v. Becerra: The plaintiff is Kim Rhode, an American Olympic medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996, three gold medals, one Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. Judge Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez and then that court vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. All restrictions on purchasing ammunition in California that have been in effect for almost eight years still remain in effect.
Illinois: Seventh Circuit
Harrel v. Raoul: Oral arguments were held in June and the defendants, State of Illinois, Cook County and Chicago, filed reply briefs that promoted the concept the weapons “must be in common use for self-defense,” rather than just in common use. They also promote the idea that magazines are not arms, but accessories. The deadline for filing amicus briefs was June 26 and according to the Chuck Michel, President & Senior Legal Counsel for the 2nd Amendment Law Center (2alc.org), “Second Amendment Law Center has been working hard to coordinate amicus briefs from a wide variety of groups including law enforcement, states, scholars, and experts.”
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.” On May 31 a motion to consolidate Novotny v. Moore and Kipke v. Moore was made by the defendants. On June 1, Judge George L. Russell, III denied the Motion to Consolidate. However, on June 9, the defendants filed a memorandum in support of Defendants’ Motion to Consolidate. Then on June 28, the defendants filed a Motion to Dismiss that was 70 pages long with 107 additional exhibits. This case appears to have quite a few twists and turns.
