By Tanya Metaksa
What’s New—SCOTUS: BATFE rule on “definition of frame or receiver”: VanDerStok v. Garland: On July 27 Justice 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, which was postponed until August 8; Amicus briefs supporting Attorney General Garland were submitted by two groups, Gun Violence Prevention groups and 20 State’s Attorneys General and DC. On Tuesday, the Supreme Court granted stay, leaving gun rights groups disappointed; Check out Amicus Briefs from Giffords; US Court of Appeals for the Fifth Circuit : Mock v. Garland: A hearing was held before the US Court of Appeals for the Fifth Circuit 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; On August 4 the District Court For The Northern District Of Texas set the schedule for further briefings; Connecticut: NAGR & Flanagan v. Lamont: The plaintiffs moved for a preliminary injunction againstCONN. GEN. Stat. § 53-202c(a) and CONN. GEN. STAT. § 53-202w(b) and (c) (collectively, (the “Statutes”).on November 3, 2022. After amici briefs from several gun ban groups were filed, the Court on August 3, 2023 denied the plaintiff’s motion for an injunction; Wade v. University: A challenge to the University of Michigan’s ban on firearms. On July 20, 2023 the Michigan Court of Appeals upheld the University’s ban deciding it was not prohibited under the Second Amendment; Maryland Shall Issue v. Montgomery County: On August 4 the US Court of Appeals for the Fourth Circuit denied the plaintiffs motion for an injunction; Rocky Mountain Gun Owners v. Polis: On Aug. 7, the day before SB169 was to become effective, Judge Philip A. Brimmer granted the plaintiffs an injunction against the enforcement of firearms ownership restrictions against citizens older than 18 but younger than 21 years; Wolford v. Lopez: Several national media organizations have begun reporting on this case that was filed almost two months ago. The headline from ABC News was “Hawaii doesn’t want firearms on its beaches. The state’s latest gun control law goes before a judge.” US News & World Report must have stolen ABC’s headline because it was almost word for word.
Supreme Court of the United States
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
VanDerStok v. Garland: This case is a result of the Biden Administration’s BATFE issuing a rule that expanded the definition of a firearm from the language of the 1968 Congressional law (Gun Control Act of 1968). The responses were to be filed on or before August 2, 2023 according to Justice Alito. On July 29 an amicus brief of District of Columbia and 20 Attorneys General was submitted. On August 1 an amicus brief from Gun Violence Prevention Groups was submitted. On August 2 the following three filings in opposition to the government’s brief were submitted: Response to Application for a Stay of the Judgment Entered by the United States District Court for the Northern District of Texas by BlackHawk Manufacturing; Brief in Opposition of Defense Distributed, Second Amendment Foundation, Inc., and not an LLC, LLC, Doing Business as JSD Supply; and Respondents VanDerStok, Andren, Tactical Machining, Firearms Policy Coalition, Inc., and Polymer80, Inc.’s Response in Opposition to Stay. On August 3, Merrick Garland filed a Reply In Support Of Application For A Stay.
However, as noted by the Second Amendment Foundation, “the U.S. Supreme Court on Tuesday granted a stay sought by the Biden administration in a federal challenge of the “new rule” on frames and receivers published by the Bureau of Alcohol, Tobacco, Firearms and Explosives, allowing the rule to remain in effect while the case moves through the U.S. 5th Circuit Court of Appeals.
“The Second Amendment Foundation (SAF) was allowed to intervene in the case, which is known as VanDerStok v. Garland, as a plaintiff. The high court stay is in effect through the final disposition of the appeal, including a petition for certiorari. If that petition is made and denied, the stay terminates. If certiorari is granted, the stay remains in effect pending the Supreme Court’s ruling.”
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 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, 2023 US 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.”
The US Department of Justice (Garland) applied on July 27 to the U.S. Supreme Court (SCOTUS) for a stay of the judgement from the US Court of Appeals for the Fifth Circuit. On July 28, Justice Samuel Alito issued an administrative stay of the July 5 final judgement of the US District Court for the Northern District of Texas until August 4, 2023. That date was then postponed to August 8.
Bumpstock ban
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 August 31, 2023.
Background: This case was brought in 2019 by Scott A. Hardin, an owner of bump stocks, who argued that ATF exceeded its 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, 2023.
Fifth Circuit Court
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 January 31, 2023. 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. And on August 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
Mock v. Garland: The Fifth Circuit has reversed the district court order and issued a preliminary injunction good for 60 days and directs the district court to rule within those 60 days. On Aug. 4 a Joint Status Report was issued that included the following schedule: By August 18, 2023 Plaintiffs will file their supplemental brief; By Sept. 1, Defendants will file their response to Plaintiffs’ supplemental brief; On or before Sept. 9, Plaintiffs may file a reply to Defendants’ response brief.
Background: A case brought by Firearms Policy Coalition on January 31, 2023 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, which held oral arguments on June 29.
On Aug. 1, 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 even 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.’”
Lawsuits challenging State Laws
Colorado: Tenth Circuit
Rocky Mountain Gun Owners v. Polis: On Aug. 7, the day before SB169 was to become effective, Judge Philip A. Brimmer granted the plaintiffs, Tate Mosgrove and Adrian S. Pineda, both of whom areolder than 18, but younger than 21, a preliminary injunction against the enforcement of SB169. Additionally, the state of Colorado is enjoined, effectively immediately from enforcing SB169. The preliminary injunction remains in effect pending disposition of the case on its merits.
Connecticut: Second Circuit
NAGR & Flanagan v. Lamont: The plaintiffs moved for a preliminary injunction againstCONN. GEN. Stat. § 53-202c(a) and CONN. GEN. STAT. § 53-202w(b) and (c) (collectively, the “Statutes”).on November 3, 2022. After amici briefs from several gun ban groups, the Court on August 3, 2023 denied their motion for an injunction. The reasoning for the denial that Judge Janet Bond Arterton wrote was, “Plaintiffs’ proposed ownership of assault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs are commonly sought out, purchased, and used for self-defense.”
Hawaii: Ninth Circuit
Wolford v. Lopez: Several national media organizations have begun reporting on this case that was filed almost 2 months ago. The headline from ABC News was “Hawaii doesn’t want firearms on its beaches. The state’s latest gun control law goes before a judge”while US News & World Report had an almost identical headline.
Background: 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.
Maryland: Fourth Circuit
Maryland Shall Issue v. Montgomery County: On Aug. 4 the US Court of Appeals for the Fourth Circuit denied the plaintiffs motion for an injunction.
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.
After the Plaintiff’s filed a notice of appeal on July 7, their motion of July 17 sought an injunction against the Montgomery County ordinance 21-22E. In that motion 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.’”
State Courts—Michigan
Wade v. University: This case is a challenge to the University of Michigan ban on firearms that had been remanded by the Michigan Supreme Court after the NYSRPA v. Bruen decision. On July 20, 2023 the Michigan Court of Appeals upheld the University’s ban deciding it was not prohibited under the Second Amendment.
Amicus Briefs
For the past two weeks we have covered the Second Amendment Law Center’s new coordination of amicus campaign. It is an important adjunct to the pro-Second Amendment legal entities such as The Second Amendment Foundation, Firearms Policy Coalition, Gun Owners of America, NRA and local groups across the country. Such groups are generally prohibited by Courts from funding or managing amicus brief campaigns to support their own cases. It seems anti-gun advocates have been doing this for decades.
One of the newest but most vocal and active is the Giffords Law Center. They have filed 33 amicus briefs since NYSRPA v. Bruen was decided 14 months ago. From defending minimum age requirement for firearms’ purchases to trying to defeat the PLCAA in every state, they and their current 26 “pro bono partners” have been busy. We cannot even begin to estimate the amount of financial help these “partners” have given Giffords. A listing of the Current Pro Bono Partners is available on their website.
While reviewing the list of pro bono partners the name Kirkland & Ellis jumped out at me. That’s the law firm that employed attorney Paul Clement, the former US Solicitor General and expert in firearms litigation. Clement was the winning lead litigator in the NYSRPA v. Bruen case. The same attorney who had been summarily sacked by Kirkland & Ellis on the exact date the U.S. Supreme Court delivered their momentous opinion on Bruen.
Following Clement and his colleague Erin Murphy’s resignation from Kirkland & Ellis, they wrote an opinion piece in the Wall Street Journal. Additionally I wrote an article, “Thank You, Paul Clement,” where I described Clement’s invaluable work for his Second Amendment clients; “Since 2016 Paul Clement has argued two more Second Amendment cases before SCOTUS —NYSR&PA v. City of New York in 2019 and in this court term the successful NYSR&PA v. New York.”
As I perused the list of law firms on the Giffords’ website the name Kirkland & Ellis jumped out at me. Maybe now we now can fully comprehend those personnel changes at Kirkland & Ellis in July 2023. Kirkland went from getting huge fees from firearms industry and gun owner groups to doing “pro bono” work for Giffords. Wonder who that partner was who didn’t like Clement and Murphy’s clients.
