By Tanya Metaksa
What’s New—SCOTUS: BATFE rule on “definition of frame or receiver”: VanDerStok v. Garland: On July 27 Justice Samuel Alito issued a stay of the July 5 final judgement of the US District Court for the Northern District of Texas until August 4, 2023; Amicus briefs supporting Attorney General Garland have been submitted by two groups, Gun Violence Prevention groups and 20 State’s Attorneys General and DC; BATFE rule on “bump stocks”: Hardin v. ATF: The US Court of Appeals for the Sixth Circuit issued a decision in favor of Hardin, reversing the District Court, on April 25. The US DOJ has petitioned for a writ of certiorari to SCOTUS; US Court of Appeals for the Fifth Circuit : Mock v. Garland: This is one of several cases dealing with BATFE’s new rule onstabilizing braces:On March 30 District Judge Reed O’Connor denied plaintiff’s requests for a Vacatur of the government’s action or a preliminary injunction. The plaintiffs then appealed to the US Court of Appeals for the Fifth Circuit, a hearing was held on June 29 and on August 1 the court issuing a 60-day preliminary injunction and remanded it to the district court for a speedy and proper reconsideration.
Supreme Court of the United States
VanDerStok v. Garland: On July 27 Justice Samuel Alito issued a stay of the July 5 final judgement of the US District Court for the Northern District of Texas until Aug. 4. Responses to the application to be filed on or before Aug. 2. As of July 29 an amicus brief of District of Columbia and 20 Attorneys General has been submitted. On Aug. 1 an amicus brief from Gun Violence Prevention Groups was submitted.
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, 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, DOJ appealed this to the US Court of Appeals for the Fifth Circuit. 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.”
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.”
Garland v. Hardin: The US Court of Appeals for the Sixth Circuit issued a decision on April 25, 2023. The decision read: “The Court agreed that it is up to Congress, not the ATF, to change the law if bump stocks are to be made illegal…we REVERSE the judgment of the district court and REMAND for further proceedings consisted with this opinion.”As a result of this decision the U.S. Department of Justice issued a petition for a writ of certiorari seeking a response by Aug. 31.
Background: This case was brought in 2019 by Scott A. Hardin, an owner of bump stocks, who argued that ATF exceeded it statutory authority by redefining “machine gun” to include bump stock devices. On Nov. 20, 2020, Judge David J. Hale DENIED Hardin’s motion and granted BATFE’s motion on the administrative record. Hardin appealed to the US Court of Appeals for the Sixth Circuit. That court issued its opinion on April 25 of this year.
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. 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. And on Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit.
Mock v. Garland: US Court of Appeals for the Fifth Circuit held oral arguments on June 29. On Aug. 1, the US Court of Appeals for the Sixth Circuit ruled that the plaintiffs are likely to win on the merits of their APA claim against the ATF’s pistol brace rule, and has remanded the case to the district court with instructions to reconsider the motion for preliminary injunction. The entire order is online. The most salient part comes on Page 38, Section V where the Court states that the district court “has not conducted extensive fact-finding or built a record for this court, we remand for a ruling on a preliminary injunction.” The Fifth Circuit goes on to say that “in these circumstances, we reasoned that ‘limiting the relief to only those before [the court] would prove unwieldy and would only cause more confusion.’”
The Fifth Circuit has Reversed the district court order and issued a preliminary injunction for 60 days and directs the district court to rule within those 60 days.
Background: 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 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. Oral arguments were held June 29.
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 and was granted an additional 30 days to submit 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.
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.
