By Tanya Metaksa
What’s New—BATFE rule on “definition of frame or receiver”: VanDerStok v. Garland: On July 24 US Court of Appeals for the Fifth Circuit issued an unpublished order that stated “we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule.” The Fifth Circuit Court then stayed this order for 10 days and expedited the appeal to the next available oral argument calendar; Guedes v. BATFE: the bump stock casethat is an appeal for certiorari, an amicus brief has been filed; Paxton v. Dettelbach: in 2021 the Texas legislature passed HB957 that exempted silencers (suppressors) made and used solely in Texas from the requirements of the NFA. On July 18, 2023 Judge Mark T. Pittman “GRANTS Defendants Motion for Summary Judgement and DENIES Plaintiffs Cross-Motion for Summary Judgement.” Additionally, the case was dismissed without prejudice; Koons v. Reynolds and Siegle v. Platkin: This case challenges the post-Bruen New Jersey “sensitive places” statute. On July 20 the state of New Jersey, both the legislature and the governor’s office, filed their opening briefs in the Second Circuit Court of Appeals; Rhode v. Bonta: According to CRPA (California Rifle & Pistol Association) at the July 17 hearing on this case the State of California was granted an additional 30 days to submit their testimony. The state alleges that no CRPA members have encountered problems purchasing ammunition. CRPA is looking for any ammunition purchaser who has been blocked from purchasing ammunition. Contact kmoros@michellawyers to share your story; Worth v. Harrington: On July 14, 2023 the state of Minnesota (appellant) filed their brief, followed by a brief for the US government as amicus curiae supporting the state of MN and seeking a reversal; 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.” As of July 25 no appeal has been filed to the US Court of Appeals for the Ninth Circuit.
Supreme Court of the United States
Guedes v. BATFE: In a bump stock casethat is on appeal for certiorari, an amicus brief has been filed by the following groups—Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Virginia Citizens Defense League, Tennessee Firearms Association, Grass Roots North Carolina, Rights Watch International, Heller Foundation, America’s Future, and Conservative Legal Defense and Education Fund. The brief alleges that “ATF was required to make substantial changes to the regulatory definition of machine gun that are at odds with the statutory definition.”
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 July 24 US Court of Appeals for the Fifth Circuit issued an unpublished order that stated “we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule.” The Fifth Circuit Court then stayed this order for 10 days and expedited the appeal to the next available oral argument calendar.
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.
On June 30, 2023 Judge 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, 2023 US DOJ appealed this to the US Court of Appeals for the Fifth Circuit.
Lawsuit challenging NFA requirements for suppressors
Paxton v. Dettelbach: This lawsuit is the direct result of the Texas legislature passing HB957 in 2021. HB957 exempted silencers (suppressors) made and used solely in Texas from the requirements of the NFA. On July 26, 2021 BATFE issued an “open Letter to all Texas Federal Firearms Licensees” that stated, “Because Texas HB957 directly conflicts with federal firearms laws and regulations, federal law supersedes HB957.” As a result, the State of Texas through its Attorney General Ken Paxton sued BATFE.
On April 26, 2023 BATFE filed a Motion to Dismiss, which was DENIED by Judge Mark T. Pittman. However, the case continued with new motions. On July 18, 2023 Judge Pittman ordered, “GRANTS Defendants Motion for Summary Judgement and DENIES Plaintiffs Cross-Motion for Summary Judgement.” The order was granted because the plaintiffs were denied standing, but the case was dismissed without prejudice.
Lawsuits challenging State Laws
California: Ninth Circuit
Rhode v. Bonta: According to CRPA (California Rifle & Pistol Association) at the July 17 hearing on this case the State of California requested requested and was granted an additional 30 days to submit their testimony. The state alleges that no CRPA members have encountered problems purchasing ammunition. CRPA is looking for any ammunition purchaser who has been blocked from purchasing ammunition. Contact kmoros@michellawyers to share your story.
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. 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.
New Jersey: Second Circuit:
Koons v. Reynolds and Siegle v. Platkin: This case challenges the post-Bruen New Jersey “sensitive places” statute and is on an expedited appeal. On July 20 the state of New Jersey, both the legislature and the governor’s office, filed their opening briefs in the Second Circuit Court of Appeals. Oral arguments scheduled for October 25, 2023 in Philadelphia.
Background: On May 16 Judge Renée Marie 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).
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).
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, 2023 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.
Minnesota: Eight Circuit
Worth v. Harrington: Attorney General of Minnesota Keith Ellison appealed Judge Menendez’s Motion for a Stay on July 14, 2023.@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, 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.” As yet, no appeal has been filed to the US Court of Appeals for the Ninth Circuit
Background: These cases were initiated in November 2022 challenging Oregon’s Measure 114. On Dec. 6, 2022 Judge 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 was held June 5-6, 2023.
Second Amendment Law Center (2alc.com)
California Rifle and Pistol Association (CRPA) President Chuck Michel who has been litigating against onerous gun laws for over 20 years sent out 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 the Hawaii case of 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.
