By Tanya Metaksa
What’s New— Congressional: State/Local legislation: Alabama: Constitutional carry and carrying firearms in state parks without a permit goes into effect on January 1, 2023; New Jersey: A4769 was passed by the Assembly Judiciary Committee and now heads to the full Assembly for a vote; Texas: Already more than 20 anti-gun bills have been profiled for the 2023 legislature; Oregon: Measure 114 may be the cause of gun shops going out of business; Virginia: Prince William County Board of Supervisors meeting Dec. 6 may be discussing gun control; Judicial: Christian v. Negrelli: “A preliminary injunction, effective immediately from enforcing N.Y. Pen. L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022; Oregon Firearms Federation v. Kate Brown, schedule set for Defendants response with oral argument 12/2/22; MSI v. Hogan; The case has been calendared before the 4th Circuit during the 1/24/23-1/27/23 session.
2022 Congressional Activity/Biden Administration
A lame duck session is still possible. Don’t put anything out of the reach of Nancy Pelosi with the assistance of President Biden.
During Thanksgiving week President Biden commented to reports saying,“The idea we still allow semi-automatic weapons to be purchased is sick. Just sick,” he said. “It has no, no social redeeming value. Zero.”
H.R. 8460: A bill to allow BATFE to create a national firearms registry has been introduced. The bill would allow the government to keep background check information indefinitely. Additionally, this bill is a wish-list for the Biden Administration’s government increased surveillance power for this agency: eliminating BATFE congressionally imposed funding caps, allow other agencies to enforce gun laws; remove the legislated 24-hour maximum for retaining info from background checks, and make it easier to revoke FFLs.
H.R. 8534: A bill to create a nation permit to purchase, require firearms registration and allow confiscation;
H.R. 9183: A bill to “To facilitate the creation of designated shooting ranges on National Forest System land and public land” has been introduced by Congressman Blake Moore (UT-01).
2022 Politics
Pro-gun Representative Loren Boebert has pulled off a squeaker when her Democrat challenger conceded ahead of a likely recount in CO-3. Boebert was ahead by 551 votes out of 327,000 total votes cast.
Oregon-Measure 114: According to gun writer Tom Gresham on Twitter: “Just got a call from a friend in Oregon. He said local gun stores plan to go out of business when Measure 114 goes into effect. It will simply end gun sales. Looking for the courts to stop this madness.” Dave Workman’s article covers this case.
State Legislatures/Local communities
The following states are still in session: Massachusetts, Michigan, New Jersey, Ohio
The following states may prefile bills for the 2023 session in 2022: Arkansas, Georgia, Kentucky, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, South Dakota, Texas, Virginia
Alabama: Alabama’s constitutional carry law goes into effect on January 1, 2023. In a recent announcement: “The Alabama Department of Conservation and Natural Resources said in a statement that ‘the state park firearms policy is consistent with current Alabama law. The state parks firearms rule will change when the new Alabama law goes into effect and will not require written permission or a concealed carry permit for handguns.”
Colorado—Longmont: Expecting anti-gun legislation from the legislature, the city of Longmont put off any local gun ordinances until June 2023.
Hawaii: A public hearing in Honolulu County to set new rules for carry licenses was held on October 4. Now Honolulu city Council Chair Tommy Waters has submitted Bill 57. More info on this bill can be found on the Hawaii Firearms Coalition page. In Hawai’i County, known as the Big Island, Bill 220, was modified regarding “sensitive places” and passed on a vote of 5-1 by the Council on Nov.16. A summary of the bill can be found at on BigIslandNow.com.
Maryland: Montgomery County—Council President Gabe Abornoz introduced an ordinance, County Bill 21-22 to ban permit holders from carrying in “a place of public assembly,” After one revision on Nov. 15 the Council passed the bill on an 8-0 vote. It becomes effective as soon as it is signed by the Chief Executive. Mark Pennak, President of Maryland Shall Issue, said, “this will go into effect very rapidly and we’ll be moving in court, equally rapidly.”
New Jersey: The Bruen response bill, A4769, was passed by the Assembly on a 42-29 vote. Dave Workman has a summary of the Assembly passage. The Senate version, S3214, has passed the Senate Law and Public Safety Committee. And is currently before the Senate Budget and Appropriations Committee. This bill bans carrying a firearm almost everywhere except at home, increases fees, uses prior speech and subjective standards to disqualify a person and mandates liability insurance.More bills: A4557 will be upgrading the crime of manufacturing firearms from second to first degree. A4717, has no text but requires psychological evaluation and in-home inspection prior to firearms’ purchase. S3003/A4502, expands sensitive places and S2847/A4369 prohibits possession of body armor.
Pennsylvania: HB2775, that would mandate a firearms eligibility license with mandatory training and added fees has been introduced. HB1929, that passed the House 202-1 in April 2022, has now unanimously passed the Senate Judiciary Committee. HB1929 removes knives and switchblade knives from the list of prohibited weapons. It should now go to the Senate floor for a vote.
Texas: Anti-gun legislators have been busy prefiling bills for the 2023 legislature that starts on January 10, 2023.
Virginia: —Prince William County Board of Supervisors meeting on Dec. 6 may be discussing gun control according to VCDL.
State and Local Legal Changes as a result of SCOTUS decision in New York State Rifle & Pistol Assn (NYSR&PA v. Bruen)
New York State Rifle & Pistol Assn (NYSR&PA) v. Bruen was a monumental decision for most Second Amendment supporters. But according to the decision “only six States…have ‘may issue’ licensing laws.” On the other hand, several gun organizations including the U.S. Concealed Carry Association (USCCA) believe that number to be as high as nine. The six that everyone agree upon are: California, Hawaii, Maryland, Massachusetts, New Jersey and New York. The remaining three are Connecticut, Delaware and Rhode Island. Several states, New York and California to date, have already changed their laws to try to maintain the ability to strictly control of who can “carry” a firearm outside the home and where that person can carry. Hawaii is working on a county by country set of carry laws and New Jersey is in the process of trying to make the entire state a “sensitive” place.
Judicial
Cases are grouped by court venue. New cases are added as they develop and some of these cases will be removed from this report if there is inactivity for a period of time. We will try and follow those cases that are active and impact the most gun owners.
US Supreme Court (SCOTUS)
The new term for SCOTUS has started with a new Justice, Ketanji Brown Jackson, replacing retired Justice Stephen Breyer. As she was appointed by President Biden, she will likely rule in a similar manner to Justices Kagan and Sotomayor.
Non-SCOTUS Federal cases
Cases being litigated or revisited in response to NYSR&P v. Bruen
New York: Second Circuit: the legislature went to great lengths to ensure that Bruen does not allow civilians the Right-to-Carry guns by passing the Concealed Carry Improvement Act (CCIA). More and more cases are being filed against the 2022 firearms laws that were passed in July 2022.
Christian v. Nigrelli: “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022. This case filed in the US District Court for the Western District of New York challenges the enactment of S51001. The suit states the State of New York “replaced one unconstitutional licensing scheme with another.” The case is being supported by the Second Amendment Foundation, Firearms Policy Coalition, Inc. and two private citizens.
Antonyuk, et al v. Hochul:. This lawsuit challenges “various provisions of New York’s newly minted by ineptly named “Concealed Carry Improvement Act (CCIA)”. It was filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. The state of NY then appealed to the US Court of Appeals for the Second Circuit, requesting a stay and appealing Judge Suddaby’s ruling.
Hardaway v. Nigrelli: After NY Judge John L. Sinatra, Jr. ruled on Oct. 10 that the section of NY’s new CICA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional, he granted a preliminary injunction stopping the enforcement of this part of the CICA. Another case that addresses guns in places of worship is Goldstein v. Hochul that was brought by a congregant and the Congregation of Bnei Matisyahu in Brooklyn, NY.
Corbett v. Hochul (7/1//2022), challenging the required disclosure of social media accounts. NY requests more pages and more time to file and judge sets limits more stringent than requested.
NYSR&PA II v. Bruen: The next iteration of the SCOTUS case—challenging the 2022 firearms laws.
California: Ninth Circuit
Rhode v. Bonta: This case began in 2016 as Rhode v. Becerra: The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. 3 gold medals, 1 Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez. Thus all the restrictions on purchasing ammunition in California have been in effect for almost 5 years. On November 17, 2022 a panel of the Ninth Circuit Court of Appeals for the Ninth Circuit has vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. A status conference is scheduled for Dec. 12, 2022.
Nichols v. Newsom: The Ninth Circuit vacated and remanded this lawsuit challenging California’s open carry ban. It returns to the Central District of California court.
Miller v. Bonta: The US Court of Appeals for the Ninth Circuit has REMANDED and VACATED this case back to the District Court and briefs have been ordered to be produced.
Colorado: Tenth Circuit: Two different judges have issued Temporary Restraining orders to halt the bans on the sale, possession and transfer of commonly owned semi-automatic rifles in the towns of Boulder and Superior. After the legislature repealed the Colorado firearms preemption statute both towns banned so-called assault weapons. In two cases, RMGO v. The town of Superior and RMGO v. The town of Boulder, judges have granted temporary restraining orders (TRO) citing the Bruen case. In late August the city of Boulder announced it is not enforcing its “assault weapons” ban until it can “legally coordinate” with its neighboring jurisdictions. On Sept. 16 Federal Judge Raymond P. Moore declined to combine four lawsuits that have been initiated in Boulder County and its towns into one. He commented,”If anyone thinks the district court is going to have the last say on this, they’re kidding themselves, Come on.” The City of Broomfield is reported to be considering 6 new ordinances with an effective date of Dec. 1. However, there have been no votes as of Oct. 21, 2022. The city of Longmont has postponed consideration of an “assault weapons” ban until June 2023.
Hawaii: Tenth Circuit
NAGR v. Shikakda: A challenge to Hawaii’s Pistol Statutes was initiated on Mov. 18, 2022 in the US District Court for the District of Hawaii.
Illinois: Seventh Circuit
NAGR v. City of Naperville, IL: A challenge to Naperville’s assault weapons ban.
Maryland: Fourth Circuit
Maryland Shall Issue v. Hogan: Arguments before the US Court of Appeals for the Fourth Circuit are tentatively calendared during the Jan. 24-27 2023 session. This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a Handgun Qualification License. The suit alleges that the Handgun Qualification License 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. The current case which is before the Fourth Circuit deals with the Second Amendment challenge to the HQL.
Bianchi v. Frosh: This is a case against Maryland’s “assault weapons” ban law brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy Coalition on Dec. 1, 2021 in the US District Court for the District of Maryland. It was dismissed on March 4, 2021 and was appealed to the U.S. Supreme Court. After the Bruen decision SCOTUS vacated and remanded the case back to the Fourth Circuit. It was reopened on August 1 and oral arguments have been scheduled for Dec. 16, 2022. On Oct. 31, 2022 the plaintiffs filed a supplemental reply brief arguing that the case should be decided based on the Bruen decision rather than remanded to a lower court.
Massachusetts: First Circuit
Morin, Alfred v. Lyver, William, et al was granted a writ of certiorariand then vacated and remanded it to the United States Court of Appeals for the First Circuit. This case challenges state law that denies anyone convicted of non-violent misdemeanors from purchasing firearms. Dr. Alfred Morin was convicted of a non-violent misdemeanor for carrying a gun in Washington, DC in 2004. At the time he was licensed by the state of Massachusetts to carry a gun. As a result of this conviction for which he did not serve any jail time, the state now bars him from obtaining a permit to purchase a handgun. Dr. Morin’s case has gone to both the U.S. District Court of Massachusetts and been appealed to the First Circuit Court of Appeals, both of which ruled in favor of the state. Now the Appeals court has been ordered to review this case in light of the Bruen decision.
Granata v. Healey: This case was brought in 2021 challenging the handgun regulatory scheme of the state. On May 19, 2022 Judge Rya W. Zobel in the US District Court for the District of Massachusetts found that “the challenged regulations therefore pass intermediate scrutiny.” In June an appeal was initiated to the US District Court for the District of Massachusetts. Earlier this month the plaintiffs filed a Motion in the US District Court for Vacatur and Remand as a result of the Bruen decision. On October 11, 2022 the Court denied the motion for Vacated and Remand and the briefing schedule remains in effect.
New Jersey: Third Circuit
Mazahreh v. Grewal: was filed in December 2020. Judge Renee Marie Bumb (nominated by President George W. Bush) has ordered a permanent injunction against any requirement for applicants for handgun carry permits to show a “justifiable need” to do so.
Oregon: Ninth Circuit
Oregon Firearms Federation v. Kate Brown, filed in US District Court for the District of Oregon late on Nov. 18, seeking injunctive relief against the implementation of Measure 114. The current scheduling regarding Emergency Motion for Preliminary Injunction: Defendants response due 11/30/22, Oral argument set for 12/2/22 before Judge Karen J. Immergut.
Other Cases
Stickley v. City of Winchester: A lawsuit against the City of Winchester’s ordinance banning firearms in certain areas was introduced and the judge ruled that in public parks and at events was in violation of the 2nd and 14th amendments. The full lawsuit will continue.
VanDerStok v. Garland: Firearms Policy Coalition (FPC) filed a lawsuit on Aug. 11 challenging BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” as firearms in the United States District Court for the Northern District of Texas. On Nov. 2Judge Reed O’Connor granted Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 he granted BlackHawk Manufacturing Group’s motion for a preliminary injunction. Earlier in September Judge Reed O’Connor stated 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, but not to its customers and requested further briefing.
US v. Price: In a criminal case where the two indictments against Randy Price were for 1.) possession of a firearm by a felon and 2.) altering the serial number of a firearm, Judge Joseph R. Goodwin found that the first indictment was constitutional while the second was not. The federal government only required serial numbers after the passage of the 1968 GCA.
Miller v. Smith: A lawsuit initiated by the Second Amendment Foundation prior to the Bruen decision that challenges Illinois law banning foster parents from keeping a gun in the home was updated with a reply discussing Bruen. The case is currently before the U.S. Court of Appeals for the Seventh Circuit
Barris v. Stroud Township: A lawsuit initiated by Firearms Policy Coalition challenging Stroud Township, PA’s restrictions on shooting ranges.
Columbia Housing & Redevelopment Corp. v. Kinsley Braden: In the Court of Appeals of TN at Nashville,a ruling in favor of a tenant who had a firearm. The court ruled “the tenant’s private home…is not the kind of “sensitive place” where the government may categorically ban firearm possession.”
Marszalek v. Kelly: A case filed in 2020 bythe Second Amendment Foundation due to a backlog of FOID applications being processed due to Covid-19 has been resolved and dismissed. “The issue was quite simple and we’re glad it is resolved,” said SAF founder and Executive Vice President Alan M. Gottlieb. “In 2020 when the COVID-19 pandemic hit, restrictions were put in place in Illinois that caused the Illinois State Police to completely fail in its statutory responsibility to process applications for FOID cards in 30 days. However, the state was taking up to six months, and sometimes more, to complete this process, and the result was Illinois citizens were being denied the exercise of their Second Amendment rights.”
Defense Distributed v. Bonta: AB1621 that passed the legislature at the end of June 2022 banned the ownership of unserialized firearms (ghost guns). This case is challenging that law. The judge George Wu ruled that “AB 1621 has nothing to do with ‘keep[ing]’ or ‘bear[ing]’ arms,”thus denying the plaintiff a temporary restraining order.
Brandeis v. Bonta: In the Superior Court of California for the County of San Diego the judge has issued a Temporary Injunction Order against the law allowing the state to share private information concerning gun owners.
CRPA v. Glendale: New case brought by CRPA challenging city ordinance banning guns on city property. Hearing set for December 12, 2022.
Rigby v. Jennings: A challenge to Delaware bill HB 125, that became law in 2021, criminalized the possession, manufacture, and distribution of unserialized firearms, untraceable and unfinished firearm components. Judge Maryellen Noreika granted a preliminary injunction to prohibit the enforcement of most of this law pending the resolution of the lawsuit. Judge Noreika stated that the plaintiffs “are likely to succeed in their argument’ that the law violates the Second Amendment.
Nguyễn v. Bonta: A case filed by SAF and FPC in Sept. 2020 after the passage of California’s one-gun-a-month law. As a result of the SCOTUS Bruen decision, a brief, focused on “text and history”, was filed by the plaintiffs on Sept.16 at the request of District Court Judge William Hayes.
Nichols v. Newsom: Junior Sports Magazine, et. al v. Bonta: An emergency motion for a writ of mandamus has been filed. The Second Amendment Foundation, CRPA, Gun Owners of California, California Youth Shooting Sports Association and others are suing the state of California for the passage of AB2571 that was signed into law on June 30.“Plaintiffs bring this suit to challenge the constitutionality of California Business & Professions Code section 22949.80, which makes 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.”
Ocean State Tactical v. Rhode Island has converted their Temporary Restraining Motion to a Motion for a Temporary injunction against the 10-round magazine law that recently passed the legislature.
B&L Productions v. Newsom: B&L Productions (Crossroads of the West), California Rifle & Pistol Association, Second Amendment Foundation, Asian Pacific American Gun Owners Association, and others filed a lawsuit in federal court that challenges state Senator Min’s legislation, SB 264, banning gun shows by prohibiting the sale of firearms, firearms parts and ammunition at the Orange County Fairgrounds.
SoCal Top Guns v. Bonta: A coalition of groups that offer and promote youth-firearm safety, youth-shooting sports, and youth-hunting and hunter-education programs filed a lawsuit challenging a newly passed California statute that prohibits them from promoting those programs. An article in thereload.com demonstrates how California’s AB2571 is affecting the careers of Olympic shooters.
Morehouse Enterprises v. ATF: Seeking a preliminary injunctions against the “ATF from enforcing various parts of an omnibus rule scheduled to take effect Aug. 24.”That rule regulated unfinished, nonfunctioning firearm components identically to finished and operational firearms.This case has been joined by 17 states attorneys general.
Michelle Flanagan v. Rob Bonta: The County Counsel sent a letter to the US Court of Appeals for the Ninth Circuit asking for the case to be dismissed as the case is now moot.The letter states “the Los Angeles County Sheriff’s Department is no longer requiring a showing of “good cause” in issuing licenses to carry a concealed weapon in public. This appeal now moot…”
Cheeseman v. Platkin: A challenge to New Jersey’s “assault weapons ban” in the US District Court for the District of New Jersey.
National Shooting Sports Foundation v. Letitia James: This case deals with the enactment of a NY law to hold the gun industry civilly liable for “public nuisances.” NSSF filed this case on December 16, 2021 and then in May 2022 Judge Mae D’Agostino ruled in favor of the defendant. NSSF has now appealed this ruling to the US Court of Appeals for the Second Circuit. Attorneys for the Appeal are Clement & Murphy.
Ban on firearms for citizens ages 18-21 in federal court
Andrews v. McCraw: On Sept. 20 the Texas Department of Public Safety appealed to the Fifth Circuit Court. A decision was announced on August 24, 2022 based on the SCOTUS Bruen decision. This case was initiated in 2021 against the Texas law prohibiting citizens who are between the ages of 18 to 21 “from fully exercising the right to keep and bear arms.” Judge Mark T. Pittman wrote that the Texas law that “prohibits law-abiding 18-to-20-year-olds from carrying handguns for self-defense outside the home based solely on their age, this statutory scheme violates the Second Amendment, as incorporated against the States via the Fourteenth Amendment.”
Jones v. Bonta: Originally Jones v. Becerra. The US District Court for the Southern District of California “held that California’s ban was a severe burden on the core Second Amendment right of self- defense in the home.” After California appealed to an “en banc” panel of the Ninth District Court of Appeals, the Ninth Circuit granted the request and then vacated and remanded the case “consistent with the US Supreme Court’s decision in NYSR&PA v. Bruen. The supplemental briefing from the plaintiff is due by September 30 with a response due by October 17.
NRA v. Swearingen: On appeal to the US District Court in Tallahassee, FL oral arguments were held on March 24, 2022. The opening brief by the NRA was filed on August 17, 2021 before the US Court of Appeal for the Seventh Circuit. This is a case that deals with the age of majority. U.S. District Judge for the Northern District Mark E. Walker wrote a strange opinion in which he stated, “for better or worse” he was precluded from ruling any way other than upholding the law.
