SCOTUS Gun Watch - Week of 9/12/22
We're well into September, but the Supreme Court remains in summer recess and therefore there are not major updates on any previously-filed cert petitions.
We're adding a new case to the tracker this week: Carnes v. United States. The question presented in Carnes is "[w]hether the government, to establish that the defendant is an 'unlawful user' of a controlled substance [for purposes of 18 U.S.C. § 922(g)(3)], must show the defendant's regular or habitual drug use, or instead may establish that element based on a single incident of drug use on the day of arrest." The Eighth and Eleventh circuits have held that active or current use, even one-time use, is sufficient—while other circuits generally require proof of regular or habitual use over a period of time.
There have been two amicus briefs filed in Carnes thus far in support of the petitioner, one by the Drug Policy Alliance and one by the Cato Institute. Cato's brief argues that the appellate court's use of one incident of drug use alone to deem Carnes an "unlawful user" is inconsistent with the American tradition of regulating firearms and thus unconstitutional under Bruen. The brief surveys 19th and early-20th-century laws restricting use or possession of guns by individuals while intoxicated, but finds them non-analogous because they "were narrowly tailored to address specific and self-evidently hazardous activities." The brief also points to a lack of Founding-era laws despite that era being "flush with alcohol use," and argues that the Eighth Circuit's approach would lead to "absurd" results by criminalizing possession by all one-time marijuana users.
We'll continue to track any developments and new cert petitions on a bi-weekly basis until October, when weekly tracking will resume.
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
New York State Rifle & Pistol Association v. Bruen (20-843) |
2d Cir. |
17-Dec-20 |
Challenge to New York’s good cause public carry regime |
Decided 23-June-2022 |
|
(21-159) |
10th Cir. |
2-Aug-2021 |
Challenge to agency deference re the bump stock ban |
Conference rescheduled (for the 18th? time) |
|
(21-1160) |
1st Cir. |
13-Dec-2022 |
Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors |
Distributed for conference 28-Sept-2022 |
|
Gun Owners of America v. Garland (21-1215) |
6th Cir. |
3-Mar-2022 |
Challenge to the bump stock ban |
Conference rescheduled |
|
Baldea v. City of New York License Division of the NYPD (21-1495) |
NY App. Ct. |
10-May-2022 |
Challenge to NYC gun license denial |
Distributed for conference 28-Sept-2022; Response requested (due 30-Sept-2022) |
|
(21-1522) |
2d Cir. |
31-May-2022 |
Challenge to warrantless home entry to seize firearms |
Distributed for conference 28-Sept-2022; Response requested (due 11-Oct-2022) |
|
District of Columbia Concealed Pistol Licensing Review Board (21-1545) |
D.C. Ct. App. |
7-Jun-2022 |
Challenge to DC gun license revocation standard |
Distributed for conference 28-Sept-2022 |
|
McCutchen, et al.; The Modern Sportsman, et al. (22-25) |
Fed Cir. |
8-July-2022 |
Challenge to ATF bump stock ban under 5th Amendment takings clause |
Filed 5-July-2022; Response due 7-Oct-2022 |
|
(22-76) |
8th Cir. |
26-July-2022 |
As-applied challenge to 922(g)(3) and definition of "unlawful user of . . . any controlled substance" |
Filed 26-July-2022; Response due 26-Sept-2022 |
Petitions Disposed
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(20-902) |
11th Cir. |
29-Dec-20 |
As-applied challenge to 922(g)(1) |
Cert Denied |
|
(20-1122) |
App. Ct. Mass. |
2-Nov-20 |
Challenge to Mass. firearm storage law |
Cert Denied |
|
(20-782) |
3d Cir. |
3-Dec-20 |
As-applied challenge to 922(g)(1) |
Cert Denied |
|
(20-819) |
9th Cir. |
9-Dec-20 |
As-applied challenge to 922(g)(4) |
Cert Denied |
|
(20-812) |
3d Cir. |
11-Dec-20 |
As-applied challenge to 922(g)(1) |
Cert Denied |
|
(19-8709) |
11th Cir. |
8-Jun-2020 |
Scope of appellate review for Rehaif errors |
Decided 14-June-2021 |
|
(20-157) |
1st Cir. |
10-Aug-20 |
Fourth Amendment challenge to gun removal |
Decided 17-May-2021 |
|
(20-171) |
6th Cir. |
13-Aug-20 |
Guilty plea under 922(g) without knowledge of disqualifying status
|
Cert Denied |
|
(20-444) |
4th Cir. |
5-Oct-20 |
Guilty plea under 922(g) without being informed that knowledge is an element of the offense (Govt is petitioner) |
Decided 14-June-2021 |
|
(19-1057) |
9th Cir. |
21-Feb-20 |
Warrantless search and seizure of firearms under Fourth Amendment |
Cert Denied |
|
(19-1390) |
4th. Cir. |
12-Jun-20 |
Vagueness challenge to the Armed Career Criminal Act’s elements clause |
Cert Denied |
|
(19-1418) |
Neb. Sup. Ct. |
22-June-20
|
Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles |
Cert Denied |
|
(20-416) |
10th Cir. |
24-Sep-20 |
Federal court abstention over Second Amendment claims being adjudicated in state court |
Cert Denied |
|
(20-5579) |
9th Cir. |
27-Aug-20 |
As-applied challenge to 922(g)(1) |
Cert Denied |
|
E.H. v. Florida Dept. Ag. (Pro se) (20-627) |
Fla. Ct. App. |
9-Oct-20 |
Challenge to firearm license denial based on prior mental health commitment |
Cert Denied |
|
(20-522) |
6th Cir. |
16-Oct-20 |
Challenge to ACCA enhancement |
Cert Denied |
|
(20-6046) |
5th Cir. |
13-Oct-20 |
As-applied challenge to 922(g)(8) |
Cert Denied |
|
(20-550) |
5th Cir. |
21-Oct-20 |
Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer) |
Cert Denied |
|
(20-840) |
11th Cir. |
17-Dec-20 |
Fourth Amendment challenge to use of deadly force against person with holstered weapon |
Cert Denied |
|
Libertarian Party of Erie County v. Cuomo (20-1151) |
2d Cir. |
9-Feb-21 |
Challenge to New York’s pistol permit regime |
Cert Denied |
|
(20-1298) |
6th Cir. |
16-Mar-21 |
Failure to give self-defense instruction |
Cert Denied |
|
(20-1419) |
N.J. Superior Ct. |
2-Apr-21 |
Challenge to New Jersey’s good cause public carry law |
Cert Denied |
|
Reyes-Torres, v. United States (20-7714) |
5th Cir. |
5- Apr-2021 |
Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms) |
Cert Denied |
|
(20-1640) |
Ohio Sup. Ct. |
21-May-21 |
Challenge to Ohio law barring carrying/using firearms while intoxicated |
Cert Denied |
|
(20-1706) |
Wisc. Sup. Ct. |
4-June-2021 |
Challenge to state law prohibiting firearm possession by non-violent felon |
Cert Denied |
|
(21-104) |
4th Cir. |
22-July-2021 |
As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense) |
Cert Denied |
|
(21-514) |
2d Cir. |
4-Oct-2021 |
Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification |
Cert Denied |
|
(21-175) |
N.J. Superior Ct. |
4-Aug-2021 |
Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order |
Cert Denied |
|
(21-667) |
Minn. Sup. Ct. |
1-Nov-2021 |
Challenge to Minnesota’s requirement that a person get a permit to carry in public |
Cert Denied |
|
(21-910) |
Wash. Ct. App. |
16-Dec-2021 |
Challenge to Seattle ordinance barring the public carry of certain knives |
Cert Denied |
|
(21-1155) |
4th Cir. |
17-Feb-2022 |
Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban |
Cert Denied |
|
(21-895) |
9th Cir. |
13-Dec-2021 |
Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA) |
Cert Denied |
|
(21-1249) |
Mass. App. Ct. |
1-Mar-2022 |
Challenge to permit requirement for home firearm possession |
Cert Denied |
|
(21-1341) |
7th Cir. |
4-Apr-2022 |
Challenge to trial questioning about “illegal” gun that was lawfully licensed |
Cert Denied |
|
Missouri Office of Chief Disciplinary Counsel (21-1440) |
Mo. Sup. Ct. |
9-May-2022 |
Challenge to attorney discipline for firearms-related conduct on Second Amendment and due process grounds |
Cert Denied |
|
Association of New Jersey Rifle & Pistol Clubs v. Bruck (20-1507) |
3d Cir. |
26-Apr-21 |
Challenge to New Jersey ban on magazines holding 10 rounds or more |
Granted, vacated and remanded 30-June 2022 |
|
(20-1639) |
9th Cir. |
11-May-21 |
Challenge to Hawaii’s restrictive open carry law |
Granted, vacated and remanded 30-June 2022 |
|
(21-902) |
4th Cir. |
16-Dec-2021 |
Challenge to Maryland’s assault weapons ban and to the methodology used for 2A questions |
Granted, vacated and remanded 30-June 2022 |
|
(21-1194) |
9th Cir. |
28-Feb-2022 |
Challenge to California ban on magazines holding 10 rounds or more |
Granted, vacated and remanded 30-June 2022 |