By Tanya Metaksa
What’s New—BATFE rule on “definition of frame or receiver”: Two cases concerning this rule are currently being litigated—VanDerStok v. Garland and State of California & Giffords Law Center v. BATFE; Bay Area Unitarian Church v. Paxton: An Everytown funded lawsuit against Texas penal Code defining size and text of “no guns allowed” signs, §§ 30.06(c)(3) and 30.07(c)(3). The District Court denied their claims and now the plaintiffs have appealed to the US Court of Appeals for the Fifth Circuit alleging that “Plaintiffs have engaged in compelled speech to which they object.”—the posting of specific signs to inform their customers that guns are not allowed in the premises; Rhode v Bonta: Judge Benitez held an in person hearing on Plaintiffs’ Motion for Preliminary Injunction on July 17; Maryland Shall Issue v. Anne Arundel County: On July 10 the County of Anne Arundel, MD filed its brief in this case; Maryland Shall Issue v. Montgomery County: The Plaintiff’s filed a notice of appeal on July 7, 2023. In the Plaintiffs’ motion of July 17 they allege that “the district court has failed to allow the plaintiffs to file a Rule 8 motion and has thus ‘failed to afford the relief requested.’” And Plaintiffs filed this motion for an injunction against the Montgomery County ordinance 21-22E; Delaware State Sportsmen’s Association, Inc. v. Delaware Department of Safety and Homeland Security: Currently on appeal before the US Court of Appeals for the Third Circuit. A coalition of 20 Republican attorneys general filed an amicus brief on July 10; Wolford v. Lopez; This case was filed on June 23 challenging most of SB1230. SB1230 designated most of the islands of Hawaii as “sensitive places” where carry permits are not recognized and requires that signage be posted to allow carry; NSSF v. Lopez: This lawsuit filed on July 12 challenges the constitutionality of recently signed HB426. This law attempts to circumvent federal law, Protection of Lawful Commerce in Arms, enacted in 2006; Webber v. Armslist: On June 13, 2023 a three-judge panel of the US Court of Appeals for the Seventh Circuit AFFIRMED the dismissal. The plaintiff them petitioned for rehearing and rehearing en banc on June 26, 2023, which was DENIED on July 13, 2023; Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, & Azzopardi v. Rosenblum (the Oregon consolidated case): On July 14, 2023 Judge Karin J. Immergut ruled “in favor of Defendants and Intervenor-Defendant in all claims.” The Oregon Firearms on Feb. 13 wrote on its website “we are committed to winning this battle” so I expect them to appeal to this decision to the US Court of Appeals for the Ninth Circuit; Worth v. Harrington: Attorney General of Minnesota Keith Ellison appealed Judge Menendez’s Motion for a Stay on July 14, 2023; NRA v. Bondi: This case deals with Florida law that abrogates the Second Amendment right to purchase firearms by responsible young adults between the ages of 18-20. On Friday, July 14, the US Court of Appeals for the Eleventh Circuit issued the following order: A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this appeal should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted in favor of granting rehearing en banc, IT IS ORDERED that this appeal will be reheard en banc. The panel’s opinion is VACATED; Fifth Circuit: McRory v. Garland: On July 17 Plaintiffs filed a Notice of Supplemental Authority regarding the Eleventh Circuit’s vacature of NRA v. Bondi and an en banc review; Second Amendment Law Center (2alc.com), a new group has been formed to gather and coordinate amicus briefs across the country.
Supreme Court of the United States
United States v. Zackey Rahimi: SCOTUS has agreed to hear this appeal from the Fifth Circuit during the 2023-2024 term beginning in September. No date for oral arguments has been announced. Of the four remaining cases awaiting a certiorari decision before SCOTUS, three are scheduled for conference on September 26: KCI v. Eighth Judicial District (firearms magazines), Garland v. Cargill (bumpstocks) and NRA v. Vullo, a First Amendment challenge regarding banks doing business with gun rights groups. In the remaining case, Guedes v. BATFE, another bump stock case, NRA filed a reply on July 7, 2023 while the response from BATFE is due August 21.
Lawsuits challenging Federal Agencies:
BATFE regulation regarding 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.On July 13, US DOJ appealed this to the US Court of Appeals for the Fifth Circuit
Background: Back on March 2, Judge O’Connor issued a preliminary injunction granting 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 since 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.
State of California & Giffords Law Center v. BATFE: This case has been in litigation since September 2020, two years before Bruen. The Plaintiffs, the state of California and the Giffords Law Center, are attempting to eliminate BATFE’s rule that “80 percent receivers” are not “firearms” and they call the final rule on ghost guns “arbitrary and capricious.” On February 9, 2023 Judge Edward M. Chen DISMISSED Mr. Muehlberger and Mr. Blackwell’s standing as plaintiffs in this case, leaving the state of California and Giffords Law Center to continue the case. Judge Chen also DISMISSED the “alternative” claim against any alteration of the final rule. At that time an expedited briefing schedule was implemented
In the months leading up to the July hearing date the plaintiffs alleged several times that BATFE had not filed a complete administrative record, and on June 22, BATFE filed a brief entitled Federal Defendants’ Opposition to Plaintiffs’ Motion to Compel Completion of the Administrative Record and for Leave to Conduct Limited Discovery. Following the June 30, opinion and Vacatur in the VanDerStok v. Garland case (see above), on July 10, 2023 the plaintiffs wrote, “Plaintiffs agree that the VanDerStok vacatur does not operate on a nationwide basis, or bind this Court of Plaintiffs here.”A day later, Plaintiffs submitted an Amended Status Report that eliminated the sentence listed here. Then on July 13, US DOJ appealed VanDerStok to the US Court of Appeals for the Fifth Circuit
BATFE regulation regarding 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, 2023 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.
BATFE regulation regarding 18-20 year old gun owners
Texas: Fifth Circuit: McRory v. Garland: A lawsuit initiated by Gun Owners of America 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,” was filed on May 12, 2023 in the US District Court for the Northern District of Texas. Ever since the filing the Defendants (US Department of Justice) have filed several motions seeking to extend the time for filing responses. On July 17 Plaintiffs filed a Notice of Supplemental Authority regarding the Eleventh Circuit’s vacature of NRA v. Bondi and an en banc review.
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 Patrick Darnell 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, 2023. On that date the following amici briefs were filed by The Second Amendment Foundation, The 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 that “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 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 July 17, U.S. District Judge Roger Benitez held a hearing on Plaintiffs’ Motion for Preliminary Injunction. 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. 3 gold medals, 1 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. US District Judge Roger 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 8 years still remain in effect.
NAGR v. City of San Jose: In a July 13, order Judge Beth Lawson Freeman has denied all Plaintiffs’ 2A motion without Leave to Amend. Several non 2A motions have been denied with Leave to Amend.
Background: This is a lawsuit from early 2022 against the city of San Jose’s newly enacted ordinance that requires gun owners to purchase liability insurance. This City is moving forward on implementing the ordinance.
Delaware: Third Circuit
Delaware State Sportsmen’s Association, Inc. v. Delaware Department of Safety and Homeland Security: Two cases challenging the 2022 Delaware gun laws, Delaware State Sportsmen’s Association v. Delaware Dept. of Safety and Gray v. Jennings, were consolidated in December 2022, and on March 27 Judge Richard G. Andrews denied the plaintiffs motions for a preliminary injunction. The case is now on appeal before the US Court of Appeals for the Third Circuit. A coalition of 20 Republican attorneys general has filed an amicus brief on July 10. In this brief the attorneys general wrote,“Because HB 450 and SS 1 both regulate conduct covered by the ‘plain text’ of the Second Amendment—’keep[ing] and bear[ing] Arms,’ see U.S. Const. amend. II—they are presumptively unconstitutional.”
Florida: Eleventh Circuit
NRA v. Bondi: This case deals with Florida law that abrogates the Second Amendment right to purchase firearms by responsible young adults between the ages of 18-20. On Friday, July 14, 2023, the US Court of Appeals for the Eleventh Circuit issued the following order: “A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this appeal should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted in favor of granting rehearing en banc, IT IS ORDERED that this appeal will be reheard en banc. The panel’s opinion is VACATED.”
Background: This case began as NRA v. Swearingen before the United States District Court Northern District of Florida. On June 24, 2021 U.S. District Judge Mark E. Walker wrote an opinion in which he stated, “for better or worse” he was precluded from ruling any way other than upholding the law due to the Eleventh Circuit Court’s Second Amendment precedence. The case was then appealed to the US Court of Appeals for the Eleventh Circuit where a three-judge panel on March 9 ruled that Florida’s statute banning those under the age of 21 from purchasing firearms “does NOT violate the Second Amendment.’ On March 30, 2023 the plaintiffs’ filed a petition for rehearing en banc. That was followed by a letter citing supplemental authorities (Worth v. Harrington) supporting the petition for Rehearing en banc. On April 12, 2023 the Firearms Policy Coalition (FPC) filed an amicus supporting the NRA petition.
Hawaii: Ninth Circuit
Wolford v. Lopez; This case was filed on June 23 challenging most of SB1230. SB1230 designated most of the islands of Hawaii as “sensitive places” where carry permits are not recognized and requires that signage be posted to allow carry. The Hawaii legislature decided to copy NY, CA, and NJ who also expanded their definitions of “sensitive places.” We have described in our Legislative Alerts the legislative process that gave us SB1230 as well as the Honolulu County restrictions on carry permits.”
NSSF v. Lopez: This lawsuit, filed on July 12, challenges the constitutionality of recently signed HB426. This law attempts to circumvent federal law, Protection of Lawful Commerce in Arms, enacted in 2006. “NSSF seeks a declaration the HB426 is preempted and unconstitutional, an injunction preventing Hawaii from enforcing it against NSSF or its members.” The plaintiffs’ lawyers are none other than Clement & Murphy, the law firm that won Bruen.
Illinois: Seventh Circuit
Harrel v. Raoul: Oral arguments were held on June 29 and on June 26 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 (friend of the court) 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
Maryland Shall Issue v. Montgomery County: The Plaintiff’s filed a notice of appeal on July 7. In the Plaintiffs’ motion of July 17, they allege that “the district court has failed to allow the plaintiffs to file a Rule 8 motion and has thus ‘failed to afford the relief requested.’” And Plaintiffs filed this motion for an injunction against the Montgomery County ordinance 21-22E.
Background: 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.
Maryland Shall Issue v. Anne Arundel County: On July 10, the County of Anne Arundel, MD filed its brief in this case before the US Court of Appeals for the Fourth Circuit.
Background: In 2022 Anne Arundel County commissioners passed an ordinance requiring gun shop owners to provide literature to firearms customers regarding suicide prevention and nonviolent conflict resolution. Maryland Shall Issue, a gun rights group challenged the ordinance as unlawful compelled speech under the First Amendment of the United States Constitution. On March 21, Judge Stephanie A. Gallagher denied plaintiff’s motion for summary judgement. An appeal to the US Court of Appeals for the Fourth Circuit was filed.
Minnesota: Eight Circuit
Worth v. Harrington: Attorney General of Minnesota Keith Ellison appealed Judge Menendez’s Motion for a Stay on July 14.@mnguncaucus tweeted “The State of Minnesota has filed its appellate brief with the Eight Circuit Court of Appeals in our Worth v. Jacobson case, where we’re litigating the Second Amendment right of 18-20-year-old adults to lawfully carry a firearm for the purposes of self-defense.”
Background: 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.
Oregon: Ninth Circuit
Oregon Firearms Federation v. Kate Brown, Fitz v. Rosenblum, Eyre v. Rosenblum, & Azzopardi v. Rosenblum (the Oregon consolidated case): On July 14, Judge Karin J. Immergut ruled “in favor of Defendants and Intervenor-Defendant in all claims.” The Oregon Firearms on Feb. 13 wrote on its website “We are committed to winning this battle” so I expect them to appeal to this decision to the US Court of Appeals for the Ninth Circuit.
Background: These cases were initiated in November 2022 challenging Oregon’s Measure 114, which passed by a narrow margin (50.6%-49.4%). On Dec. 6, Judge Karin J. Immergut—a Donald Trump appointee–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. Subsequently, 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, 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 June 5-6.
Texas: Fifth Circuit
Bay Area Unitarian Church v. Paxton: In their appeal to the US Court of Appeals for the Fifth Circuit the plaintiffs are alleging that “Plaintiffs have engaged in compelled speech to which they object.”—the posting of specific signs to inform their customers that guns are not allowed in the premises.
Background: An Everytown-funded lawsuit against Texas penal Code defining size and text of “no guns allowed” signs, §§ 30.06(c)(3) and 30.07(c)(3). In September 2022, the US District Court for the Southern District of Texas DENIED all the plaintiffs’ challenges and granted in part the government’s motion to dismiss. This case is now on appeal to the US Court of Appeals for the Fifth Circuit.
Wisconsin: Seventh Circuit
Webber v. Armslist: On June 13, 2023 a three-judge panel of the US Court of Appeals for the Seventh Circuit affirmed the dismissal. The plaintiff them petitioned for rehearing and rehearing en banc on June 26, which was denied on July 13.
Background: In a 2020 lawsuit supported by Brady against Armslist , an online marketplace for firearms transactions, the intent was to close down Armslist.com. The plaintiff, Richard Webber, lost his daughter in in the Asana spa massacre, where the killer purchased his firearm through Armslist. On November 9, 2021 Judge William C, Griesbach of the US District Court for the Eastern District of Wisconsin granted Armslist Motion to Dismiss. Webber then appealed to the US Court of Appeals for the Seventh Circuit.
Second Amendment Law Center (2alc.com)
California Rifle and Pistol Association (CRPA) President Chuck Michel, who has been litigating against onerous gun laws for more than 20 years, sent an email that announced that CRPA has recently joined amicus campaigns coordinated by the Second Amendment Law Center (2ALC). In Update #25 we mentioned that 2ALC was coordinating amicus briefs in the Illinois 2A case Harrel v. Raoul. The CRPA email mentions that CRPA has recently joined two amicus campaigns. The first is in Delaware, Delaware State Sportsmen’s Association, Inc. v. Delaware Department of Safety and Homeland Security, where the District Court Judge denied the plaintiffs’ motion for an injunction and the case is now on appeal in the Third Circuit. The second case is in Hawaii: Wolford v. Lopez (see above). The anti-gun groups have been coordinating amicus briefs for several years in order to give the appearance that public opinion is on their side.
