By Tanya Metaksa
What’s New—District of Columbia v. Heller: Fifteen years after SCOTUS ruled on this case The Washington Post reported, “D.C. will pay $5.1 million as part of a class-action settlement with gun owners who were arrested under laws that have since been found to violate the Second Amendment, according to the settlement agreement. U.S. District Judge Royce C. Lamberth gave preliminary approval to the settlement agreement following years of litigation.” NSSF v. James: After the passage of SB7196, NY Gen. Bus. Law § 898-a-e. on December 16, 2021, the National Shooting Sports Foundation filed suit in federal court in New York State. On May 25, 2022 Judge Mae A. D’Agostino of the US District Court for the Northern District of New York ordered 1.) Defendant’s motion to dismiss (Dkt. No. 35) is GRANTED; and 2.) Plaintiffs’ motion for a preliminary injunction (Dkt. No. 2) is DENIED. On October 7, 2022 NSSF and 14 of its members appealed to the US Court of Appeals for the Second Circuit. On Tuesday, Aug. 29 the case was calendared for Nov. 3, 2023; VanderStok v. Garland: The three judge panel is Willett, Engelhardt and Oldham; Maryland Shall Issue v. Montgomery County: On Aug. 3 the Appeals Court DENIED the plaintiffs Emergency Appeal for injunctive relief pending appeal. On August 28 an amicus brief from the Second Amendment Law Center and others including the Citizen’s Committee for the Right to Keep and Bear Arms was filed. Judge Chuang on August 29, 2023 ordered—“Plaintiffs are GRANTED leave to file the proposed Motion to Stay Order Pending Appeal.” McRory v. Garland: On Aug. 14 Judge Reed O’Connor Denied the plaintiffs Motion for Temporary Restraining Order, Preliminary Injunction, and/or Permanent Injunction. The plaintiffs appealed to the US Court of Appeals for the Second Circuit; Eddie Grant, Jr. v. Edward M. LaMont, Jr: This is a lawsuit filed against Connecticut’s recently enacted “assault weapons ban.” The Connecticut Citizen’s Defense League and the Second Amendment Foundation are also plaintiffs. It challenges and seeks injunctive relief against the state’s ban on “assault weapons.” Rocky Mountain Gun Owners v. Polis: On Aug. 21, Colorado Governor Jared Polis filed an emergency motion to stay the District Court’s preliminary injunction pending appeal. On August 29 US Court of Appeals for the Tenth Circuit ordered “Upon consideration, the Governor has failed to show his entitlement to a stay under these factors. Accordingly, we deny his emergency motion for a stay pending appeal.” City of Philadelphia v. Tanner Operations: On July 25 the city of Philadelphia in state court sued three FFLs for “supplying Philadelphia’s secondary market by repeatedly and unconscionably choosing to engage in illegal straw transaction.”
Supreme Court of the United States
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
United States v. Zackey Rahimi: Attorney General Merrick Garland announced that the US Department of Justice would be seeking certiorari in this case in March. SCOTUS announced that it would grant certiorari on June 30 and by July 5 we were reporting that amicus curiae were being filed in large numbers. The numbers of amici have kept growing.
VanDerStok v. Garland: Since there are many ramifications to the confusing SCOTUS order, a stay of Judge O’Connor’s order is in effect. The Fifth Circuit has scheduled oral arguments on the merits of the case for Sept. 7, and on schedule (Aug. 9) the DOJ filed its argument against the District Court’s opinion. The three judge panel is Willett, Engelhardt and Oldham
BATFE regulation regarding 18-20 year old gun owners
Texas: Fifth Circuit: McRory v. Garland: On Aug. 14 Judge Reed O’Connor Ordered: “Motion for Temporary Restraining Order, Preliminary Injunction, and/or Permanent Injunction (ECF No. 2) is hereby Denied.” On Aug. 17 a notice of appeal was filed by the plaintiffs and then on Aug. 22 a Notice of Appeal was filed with the US Court of Appeals for the Fifth Circuit and the following day US District Court for the Northern District of Texas stayed the proceedings pending the Fifth Circuit’s resolution.
Background: A lawsuit initiated by Gun Owners of America challenging the law that “took effect on Nov. 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.
Federal Lawsuits challenging State Laws
Colorado: Tenth Circuit
Rocky Mountain Gun Owners v. Polis: On Aug. 21, Gov. Jared Polis filed an emergency motion to stay the District Court’s preliminary injunction pending appeal. On August 29 US Court of Appeals for the Tenth Circuit ordered “Upon consideration, the Governor has failed to show his entitlement to a stay under these factors. Accordingly, we deny his emergency motion for a stay pending appeal.”
Background: 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
Eddie Grant, Jr. v. Edward M. LaMont, Jr: This is a lawsuit filed against Connecticut’s recently enacted “assault weapons ban,” with the Connecticut Citizen’s Defense League and the Second Amendment Foundation as plaintiffs. It challenges and seeks injunctive relief against the state’s ban on “assault weapons.” It was filed on June 28 in the US District Court for the District of Connecticut.
Maryland: Fourth Circuit
Maryland Shall Issue v. Montgomery County: The Plaintiff’s filed a notice of appeal on July 7 to the US Court of Appeals for the Fourth Circuit. In the Plaintiffs’ motion of July 17, 2023 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.’” On August 3 the Appeals Court DENIED the plaintiffs Emergency Appeal for injunctive relief pending appeal. On August 28 an amicus brief from the Second Amendment Law Center and others including the Citizen’s Committee for the Right to Keep and Bear Arms was filed. Recently on August 29, 2023 Judge Chuang ordered that “Plaintiffs are GRANTED leave to file the proposed Motion to Stay Order Pending Appeal.”
Background: This case has been in litigation before Bruen. The original case was against Montgomery Country Bill 4-21 which broadened the county definition of “gun or firearm” to include “a ghost gun,” originally filed in State Court. County Bill 4-21’s effective date was July 16, 2021. On Feb. 7, 2022 the Circuit Court has remanded, as requested by Montgomery County, Counts I, II, and III counts back to the District Court, but Count IV, “ghost gun” ban in places of public assembly, will proceed in federal court. After the Bruen decision the Plaintiffs on July 22, 2022 filed an amended complaint adding a Count V claim under the Second Amendment. On August 8, 2022 Defendants, Montgomery County, filed a motion to consolidate cases of all Counts with the one with Count 5. The next day Plaintiff filed a response in opposition to the motion to consolidate. On August 11 Judge Theodore D. Chuang. A case management conference was held on Aug. 26 and a new consolidation motion was filed. Finally on Sept. 1, 2022 Judge Chiang issued an order to consolidate cases—8:21-cv-01736-TDC and 8:22-cv-01967-DLB. On Feb. 6, a hearing was held on the motion to remand by the County and the motion by the plaintiffs for a Preliminary Injunction. On May 5, Judge Chiang issued an order remanding Counts I, II, and III to the Circuit Court for the County of Montgomery while Saying Counts IV through VIII. Finally on July 6, Judge Chuang DENIED Plaintiffs’ motion for a Temporary Restraining Order and Preliminary Injunction.
New Jersey: Third Circuit
Koons v. Reynolds and Siegle v. Platkin: On August 21Firearms Policy Coalition filed their response brief with the Third Circuit Court of Appeals challenging multiple aspects of New Jersey’s response to Bruen. 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 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).
New York: Second Circuit:
NSSF v. James: On Dec. 16, 2021 NSSF and 14 of its members appealed to the US Court of Appeals for the Second Circuit. Although during the proceedings in the District Court the defendant, NY Attorney General Letitia James did not acknowledge that the purpose of SB7196 was to override the PLCAA, AG James’ press release upon the signing of SB7196 was very clear of its purpose. The case has been calendared for Nov. 3.
Background: After the passage of SB7196, NY Gen. Bus. Law § 898-a-e on December 16, 2021, the National Shooting Sports Foundation filed suit in federal court in New York State. On May 22, 2022 Judge Mae A. D’Agostino of the US District Court for the Northern District of New York ordered “1.) Defendant’s motion to dismiss (Dkt. No. 35) is GRANTED; and 2.) Plaintiffs’ motion for a preliminary injunction (Dkt. No. 2) is DENIED.”
Massachusetts: Commonwealth of Massachusetts v. Dean R. Donnell: On August 3Lowell District Court Judge John F. Coffey dismissed a criminal case against a New Hampshire man who was carrying a firearm in Massachusetts without a license. Judge Coffey’s decision included, “An individual only loses a constitutional right if he commits an offense or is or has been engaged in certain behavior that is covered by 18 USC section 922. He doesn’t lose that right simply by traveling into an adjoining state whose statute mandates that residents of that state obtain a license prior to exercising their constitutional right. To hold otherwise would inexplicably treat Second Amendment rights differently than other individually held rights. Therefore, the Court finds that GL. 269, sec. (10a) is unconstitutional as applied to this particularly situated defendant and allows the motion to dismiss on that ground.”
State Courts—Pennsylvania
City of Philadelphia v. Tanner Operations: On July 25 the city of Philadelphia in state court sued three FFLs for “supplying Philadelphia’s secondary market by repeatedly and unconscionably choosing to engage in illegal straw transaction.” According to their complaint they have public criminal court filings to support their accusations.
If the straw purchase sales are as egregious as listed in the complaint, why didn’t Mayor Jim Kenney pick up the phone and call BATFE Director Dettelbach and request an investigation and the shutting down of these three FFLs instead of filing a lawsuit and issuing a press release? Maybe the answer is in the fact that the second, third and fourth named attorneys represent Everytown Law. This is not a law enforcement case; it appears to be a public relations lawsuit supporting the Everytown policy to shut down FFLs. One of their talking points is that “States with the highest number of gun dealers per capita have 10 times higher rates of guns trafficked to another state and subsequently used in a crime.”
