By Tanya Metaksa
What’s New—SCOTUS: BATFE rule on “definition of frame or receiver”: VanDerStok v. Garland: As of Aug. 8, SCOTUS has instituted a stay of the District court’s order and Sept. 7, is the date for US Court of Appeals for the Fifth Circuit’s oral arguments’ NSSF v. Raoul: Monday August 14, a lawsuit against HB218, the recently signed anti-firearms manufacturing bill, was filed by NSSF. Its purpose is “to block enforcement of the law, seeking to have it declared an unconstitutional violation of both the First and Second Amendment, in addition to violating the Protection of Lawful Commerce in Arms Act; ”USA v. Daniels: On Aug. 9 the three-judge panel of the US Court of Appeals for the Fifth Circuit’s opinion stated, “In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment. We reverse the judgment of conviction and render a dismissal of the indictment.” Caulkins v. Pritzker: As prognosticated by many legal scholars this case before the Supreme Court of the State of Illinois has been decided in favor of Governor Pritzker’s anti-Second Amendment law on Aug. 11; United States v. Missouri: The United States filed a brief on Aug. 10, arguing the Missouri law “is a scheme premised on the asserted power to declare federal law invalid.” The US Department of Justice sued the state of Missouri in the US District Court for the Western District of Missouri where the Missouri law was found unconstitutional and now the state of Missouri is appealing to the US Court of Appeals for the Eighth Circuit.
Supreme Court of the United States
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
VanDerStok v. Garland: SCOTUS’ Aug. 8 order reads:
“The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay.”
Since there are many ramifications to the SCOTUS order, confusion has been the order of the day among many attorneys. However, the Fifth Circuit has scheduled oral arguments on the merits of the case for Sept. 7, and on schedule (Aug. 9) the DOJ filed their argument against the District Court’s opinion.
Background: 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 Aug. 3, Merrick Garland filed a Reply In Support Of Application For A Stay.
On March 2, U.S. District 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 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. 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 District Court for the Northern District of Texas. That judgement read “the Court vacates the Rule for a stay of the judgement from the US Court of Appeals for the Fifth Circuit. On July 28 Justice 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. 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 Aug. 3, Merrick Garland filed a Reply in Support Of Application For A Stay. On Aug. 4 the Justice Alito extended the stay to Aug. 8.
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 August 4 a Joint Status Report was issued that included the following schedule: By August 18, 2023 Plaintiffs will file their supplemental brief; By September 1, 2023 Defendants will file their response to Plaintiffs’ supplemental brief; On or before September 9, 2023, 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 firearms ownership and “marijuana possession” in federal law
18 U.S.C. § 922(g)(3)
USA v. Daniels: My last sentence describing the case after the hearing on June 5th ending with “these amici briefs are powerful arguments in favor of declaring § 922(g)(3) unconstitutional.” On Aug. 9 the three-judge panel of the US Court of Appeals for the Fifth Circuit’s opinion stated, “In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment. We reverse the judgment of conviction and render a dismissal of the indictment.”
Background: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).
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 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.
Federal Lawsuits challenging State Laws
Illinois: Seventh Circuit
NSSF v. Raoul: Over the past weekend Governor J.B. Prizker, attended a rally of Second Amendment opponents in Chicago and took advantage of the venue to sign HB218, the bill to stop the marketing of firearms to “minors”—in other words the suppression of the gun industry’s First Amendment rights. As promised earlier this month by NSSF President Larry Keane, on the next available business day, Monday August 14, a lawsuit was filed by NSSF, NSSF v. Raoul, “to block enforcement of the law, seeking to have it declared an unconstitutional violation of both the First and Second Amendment, in addition to violating the Protection of Lawful Commerce in Arms Act.”According to the legal complaint,“HB 218 regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products. In other words, HB 218 regulates commerce in and speech relating to arms.”
Missouri: Eighth Circuit
United States v. Missouri: The United States filed a brief on Aug. 10, arguing the Missouri law “is a scheme premised on the asserted power to declare federal law invalid.”
Background: This case was brought by the Department of Justice over HB85, a law passed in 2021 by the MO legislature, that declares five categories of federal firearms laws “invalid” and deters and penalizes their enforcement by federal, state and local law enforcement officers. The US Department of Justice sued the state of Missouri in the US District Court for the Western District of Missouri where the Missouri law was found unconstitutional. The state of Missouri has appealed to the US Court of Appeals for the Eighth Circuit and asked for a stay on the court order. On March 13 the Circuit Court amended its order “to reflect that the motion to stay pending appeal shall be fully briefed for the Eighth Circuit’s consideration by March 20, 2023.”
State Courts—Illinois
Caulkins v. Pritzker: As prognosticated this case before the Supreme Court of the State of Illinois has been decided in favor of Governor Pritzker’s anti-Second Amendment law on August 11, 2023. The ruling ends with the following: “Accordingly, we reverse the circuit court and enter judgment for defendants on the equal protection and special legislation claims. We express no opinion on the potential viability of plaintiffs’ waived claim concerning the second amendment.”
Background: On May 31, 2023 the Illinois Supreme Court Justices heard oral arguments in this case.
Originally No. 2023-CH-3 that was before the Circuit Court of the Sixth Judicial Circuit, Macon County, IL. This case was directly appealed to the Supreme Court of Illinois after the Circuit Court ruled in favor of the plaintiffs ruling that the law, that passed the legislature on its last day of the 2022 session, was unconstitutional. That bill became Public Act 102-1116 §25. In a motion to the Supreme Court of Illinois the plaintiffs questioned the impartiality of two new justices, who were elected to their positions in 2022, asking the Court to recuse said justices. Both these justices received $1 million each in campaign donations from Governor Pritzker.
Both Justices filed motions denying the motion to recuse. Jerry Stocks, the attorney for the plaintiffs, commented on the failure of the recusal motion by issuing the following statement:
“We raised a fair question arising from appearances that reasonably informed the grounds for recusal and stand by the content of our Motion. Ultimately, each justice must make an independent evaluation whether a party to the appeal seeks that evaluation or not. In this respect, the suggestion that as movants raising the issue that we had a burden of proof to show actual impartiality on the part of the justice is a contention with which we disagree. The decision has been made and we turn to the merits of the challenge to the facially unconstitutional law. It is premature to determine the remedy, if any, for the participation of the Justices if our view is valid.”
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 an 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 your 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.” Maybe now we now can fully comprehend those personnel changes at Kirkland & Ellis in July 2022. Kirkland went from getting huge fees from the 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 clie
