By Tanya Metaksa
What’s New—SCOTUS: Will ATF appeal VanDerStok v. Garland to the Supreme Court after the Fifth Circuit decision? We should know shortly. Brito v. BATFE: Judge Matthew J. Kacsmaryk issued a preliminary injunction against the ATF’s pistol brace rule and stayed it “in its entirety”; US Court of Appeals for the Ninth Circuit; Attorney General Rob Bonta of California filed a petition with the US Court of Appeals for a rehearing en banc with US Court of Appeals for the Ninth Circuit this past Monday that deals with the new state law concerning firearm advertising to minors in two cases—Junior Sports Magazines v. Bonta and Safari Club International v. Bonta; Illinois: FFL of Illinois v. Pritzker: The lawsuit is against HR 5471, which became Illinois law in January 2023. It banned many, many firearms and required registration of pre-owned banned firearms by Jan. 1, 2024. The lawsuit was filed on Jan. 26, 2023. This past Monday, Nov. 13, the plaintiffs filed an amended motion for a preliminary injunction;USA v. Devon Freeman: Another felon in possession case, § 922(g (1), has been found lacking.
Supreme Court of the United States
SCOTUS: Will ATF appeal VanDerStok v. Garland to the United States Supreme Court after the Fifth Circuit decision? See Below.
U. S. Courts of Appeals
California: Ninth Circuit-en banc
Attorney General Bonta of California filed a petition with the US Court of Appeals for a rehearing en banc with US Court of Appeals for the Ninth Circuit on Nov. 13 that deals with the new state law concerning firearm advertising to minors in two cases—Junior Sports Magazines v. Bonta and Safari Club International v. Rob Bonta. The state alleges that: “The panel improperly held that the State failed to present empirical evidence that the law directly advances the State’s substantial interests.”
Background: Junior Sports Magazines v. Bonta: This lawsuit was filed immediately after Gov. Gavin Newsom signed AB2571 that made it unlawful for any“firearm industry member” to “advertise, market, or arrange for placement of an advertising or marketing communication concerning any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” The Plaintiffs were seeking a Preliminary Injunction (PI). The lawsuit was suspended until after the legislature passed another bill, AB160, modifying some of the parameters of the original legislation, Judge Christina A. Snyder then ruled against the motion for a PI on Oct. 24, 2022. Ninth Circuit-3 judge panel:The plaintiffs appealed to the Ninth Circuit Court of Appeals. The three judge panel included District Judges N. Randy Smith, Kenneth K. Lee and Lawrence VanDyke. The case was argued and submitted on June 28, and on Sept. 13, the Ninth Circuit reversed “the district court’s denial of preliminary injunction and remand(ed).” The Court wrote:
“And even assuming that intermediate scrutiny applies, California’s advertising restriction likely imposes an unconstitutional burden on protected speech. The state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors.”
Background: Safari Club International v. Rob Bonta: The original case was filed on Oct. 18, 2022. A motion for a preliminary injunction was filed on Oct. 21, 2022. On Dec. 22, 2022 a court hearing on the motion was held. On January 12, 2023 Judge Dale A. Drozel denied the motion for a preliminary injunction. Safari Club International then appealed to the US Court of Appeals for the Ninth Circuit. A 3-judge panel issued a Memorandum reversing the denial of preliminary injunction in that matter “for the reasons outlined” in its Junior Sports Magazines decision, and similarly remanding that case to the district court for further proceedings.
Texas: Fifth Circuit
VanDerStok v. Garland: On November 9, 2023 the US Court of Appeals for the Fifth Circuit enjoined the ATF Frames and Receiver rule.
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will. Accordingly, for the reasons set forth below, we AFFIRM IN PART and VACATE AND REMAND IN PART the judgment of the district court.”
The Fifth Circuit affirmed the District Court’s order that enjoined ATF from enforcing the regulation against Defense Distributed and BlackHawk Manufacturing and their customers. They vacated the District Court’s order of a Preliminary Injunction against ATF, since during trial the Fifth Circuit judges asked ATF if they were going to enforce the new regulations against the customers and ATF testified that they would not. This ruling allows the plaintiffs to stay in business and the customers to keep their purchased items. And then they remanded the case back to the District Court. It is important to note that the District Court must do something, as after their next order, the ultimate decision will be with SCOTUS, not the inferior courts. On Sept. 14, SCOTUS wrote that the original District Court rulings 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.”
Background: This lawsuit against the BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” as firearms was filed in the United States District Court for the Northern District of Texas in August 2022. On June 30, Judge Reed O’Connor issued an order VACATING the final rule. The Department of Justice (DOJ) appealed to the US Court of Appeals for the Fifth Circuit. On July 24 they DENIED DOJ’s motion to stay O’Connor’s Vacatur. DOJ then appealed to SCOTUS for a STAY of the Fifth Circuits’ order. On Aug. 8 SCOTUS in a 5-4 vote issued a stay of Judge O’Connor’s “global” vacatur that applied to all entities nationwide.
The plaintiffs filed an emergency motion for a Preliminary Injunction against the Rule on Aug. 9 and 14 in the District Court. Judge O’Connor issued an order granting injunctive relief for the plaintiffs on Sept. 14. The US Court of Appeals for the Fifth Circuit held oral arguments on Sept. 7 and on Oct. 2 issued another unpublished order that vacated the District Court order as to non-parties, but it Denied the DOJ motion to stay the District Court’s injunction that was issued on Sept. 14. On Oct. 5 DOJ appealed to SCOTUS to vacate the District Court’s Sept. 14 injunction against the Rule as it applied to the original plaintiffs, Defense Distributed and BlackHawk Manufacturing.
Federal Lawsuits challenging State Laws, ATF Rules, & Executive Orders
Illinois: Seventh Circuit
FFL of Illinois v. Pritzker: The lawsuit is against HR 5471, which became Illinois law in January 2023. It banned many, many firearms and required registration of pre-owned banned firearms by Jan. 1, 2024. The lawsuit was filed on Jan. 26, 2023. One of the first sentences in the complaint is “The Rules provide virtually no clarification of critical statutory terms for determining what firearms or parts must be registered.” On Nov. 13, the plaintiffs filed an amended motion for a preliminary injunction. One of the attorneys, @MorosKostas on X (formerly known as Twitter) has an annotated copy of the motion.
Background: Cases currently in the federal court system challenging the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.:Accuracy Firearms, LLC et al v. Pritzker; Langley v. Kelly; Barnett v. Raoul and Harrel v. Raoul: Also see Caulkins v. Pritzker under State Court cases.
Background—Harrel v. Raoul: This case was filed on Jan. 17, 2023 by the Second Amendment Foundation, The Firearms Policy Coalition, Marengo Guns, Inc., C4 Gun Store and David Harrel against the large capacity magazine ban that was signed by Gov. Pritzker on that date. On Jan. 25 Plaintiffs filed a motion for a preliminary injunction (PI). After several motions for delays, all parties reached an agreement on a motion for a coordinated preliminary injunction briefing adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, Langley v. Kelly in US District Court for the Southern District of Illinois. On April 28 Judge Stephen Patrick McGlynn issued a preliminary injunction preventing enforcement of PICA. He wrote “PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.” He enjoined enforcing PICA.
US Court of Appeals for the Seventh Circuit: Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Langley v. Kelley: In a 2-1 (with Judges Easterbrook and Wood) ruling the US Court of Appeals for the Seventh Circuit vacated the District Judges Preliminary Injunction. Judge Brennan wrote a 44 page dissent.
USA v. Devon Freeman: Another felon in possession case, § 922(g (1), has been found lacking. Judge Robert W. Gettlemen of US District Court for the Northern District of Illinois wrote: “However, this court is unable to uphold § 922(g)(1) as constitutional due to Bruen’s instruction that the government must provide evidence of a historical analogue that is both comparably justified and comparably burdensome of the right to keep and bear arms.”
Texas: Fifth Circuit
Brito v. BATFE: Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas issued a preliminary injunction against the ATF’s pistol brace rule and stayed it “in its entirety” while the case continues.
JudgeKacsmaryk quotes The US Court of Appeals for the Fifth Circuit which wrote in Mock v. Garland that it “must be set aside as unlawful”.
Background: The Plaintiffs are three Marines veterans who filed this case back in January. Case #2:23-cv-00019 and can be found here.
