HAPPY NEW YEAR!
By Tanya Metaksa
If 2022 was the year of NYSRPA v. Bruen, 2023 was significant for the explosion of lawsuits utilizing Bruen to challenge the passage of state laws and federal regulations that infringed upon the Second Amendment.
During 2023 we have covered most of the important cases that had been filed in prior to Bruen’s 2022 decision and those that have been filed since. Very few cases have been finalized. There have been some losses in the expected blue states and some unexpected wins. This report will cover the highlights of the Second Amendment’s litigation struggles in 2023 as a result of that monumental SCOTUS win in 2022.
In February we split the Judicial Report from the Legislative report and for the remainder of the year we published 49 individual reports. This Judicial Wrap Up 2023 is the 50th such report.
In several states cases that had been filed prior to Bruen were remanded back to the original courts to be relitigated. Thus we are following cases that had been in the judicial process for several years prior to June 2022.
Last year (2022) ended with California, New Jersey and New York enacting bills to counter the Bruen decision. And in January the Illinois legislature at the insistence of Gov. J. B. Pritzker raced to beat the deadline of the 2021-2022 legislature’s adjournment date in early 2023 to pass their own version of a Bruen response bill.
A preponderance of cases are due to laws that have been passed by legislatures from those states that could be called “blue” states. They have had or have a political representation that is predominately Democrat such as California, Colorado, Hawaii, Illinois, Massachusetts, New Jersey, New York, Oregon, and Washington. In addition with a rabidly anti-gun President Joe Biden we have witnessed the promulgation of federal regulations that are essentially restrictions on our Second Amendment rights.
On Jan. 2, 2023 I wrote a 2022 Judicial Review. In that article I reported on over 50 cases that had been initiated in 2022 with most filed after June 22. I also mentioned that on June 22, 2022, there were four cases awaiting certiorari at SCOTUS when it delivered its landmark decision:
After June 23 courts across the country began reacting to the Bruen decision. The four cases that were awaiting certiorari—GOA v. Garland, Duncan v. Bonta, Dominic Bianchi et al. v. Brian E. Frosh et al., and Aposhian v. Garland—were “granted certiorari”, ‘vacated”, and then “remanded” (sent back) to the lower court to be relitigated. This action by a court is known as a GVR.
Unfortunately in GOA v. Garland and Aposhian v. Garland, two cases that dealt with the federal bump stock regulation, SCOTUS denied certiorari. However, the bump stock rule will now be before SCOTUS in United States v. Cargill. Duncan v. Bonta is currently being briefed before it will be heard by an en banc panel of the US Court of Appeals for the Ninth Circuit. In the final case, Bianchi v. Frosh, it is now Bianchi v. Brown, nothing has transpired since oral arguments were held at the US Court of Appeals for the Fourth Circuit on Dec. 22, 2022, more than a year ago.
SCOTUS
At the end of the 2022-2023 term SCOTUS granted certiorari in United States v. Rahimi. This case deals with 18 U.S.C. § 922(g)(8) which bans anyone that is subject to a domestic-violence restraining order from firearms’ possession. The Fifth Circuit ruled that Section 022(g)(8) was unconstitutional under Bruen and the DOJ appealed to SCOTUS. The hearing was held on December 7, 2023 and a decision is expected by June 2024.
SCOTUS granted certiorari in NRA v. Vullo, which isa First Amendment claim against New York’s Department of Financial Services (DFS).
Bump stock regulation
Additionally SCOTUS has agreed to hear a “bump stock” case in the 2024-2025 term: United States v. Cargill, Case: 22-976. This case was initiated by Michael Cargill, a Texas FFL, arguing that the ATF bump stock rule promulgated in 2018 was wrong. The District Court ruled against Cargill, who appealed to the US Court of Appeals for the Fifth Circuit. A three-judge panel ruled in favor of Cargill, which the Department of Justice appealed to an en banc panel. The en banc panel upheld the ruling of the three-judge panel resulting in DOJ’s appeal to SCOTUS. As of December 28 seven amici have been filed.
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BATF rules
Pistol Brace rule: published 1/31/23—in effect May 1, 2023
We know Biden’s BATFE is attempting to govern by regulation and multiple lawsuits have been filed against every new regulation. The first regulation to be published was the final rule of Pistol Braces. The effective date was Jan. 31, 2023, and the last day to register pistol braces by filling out a Form 1 was April 30, 2023. According to gunsamerica.com BATFE announced that as of the end of April only 125,000 ATF Form 1’s had been filed. Estimates have guessed the number of pistol braced firearms to be between 3-7 million. At least four lawsuits were filed: Mock v. Garland, SAF v. BATFE, Texas v. ATF, and Brito v. ATF. In the latter caseJudge 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”, quoting Mock v. Garland’s Circuit Court ruling that stated the rule “must be set aside as unlawful”. Now the decision on pistol braces in the Fifth Circuit is back at the District Court level. On Dec. 22, 2023 Judge Kurt D. Englehardt, District Judge in the SAF v. BATFE case, has ruled:
“It Is Ordered that Appellees’ unopposed motion to consolidate this case with case Nos. 23-11199, Mock v. Garland, 23-11203, Britto v. Bureau of Alcohol, 23-11204, Texas Gun Rights v. Bureau of Alcohol, and 23-40685, State of Texas v. Bureau of Alcohol is GRANTED.”
The case continues with all pistol brace cases under one judge at the District Court level with the US Court of Appeals for the Fifth Circuit.
“Definition of ‘Engaged in the Business’ as a Dealer in Firearms”
NPRM 2022R-17
Using the Bipartisan Safer Communities Act of 2022 as a mandate, BATFE on Sept. 9 published a new proposed rule. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL. Public comments closed on Dec. 7. As soon as the rule is published, lawsuits will be filed.
COMING NEXT: We will review the many, many cases that were ongoing in 2023 and filed in 2023 against various state statutes.
