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SCOTUS Gun Watch – Week of 9/12/22

By on September 12, 2022 Categories: ,

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

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Conference rescheduled (for the 18th? time)

Morin v. Lyver

(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)

Torcivia

v.

Suffolk County

(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)

Whitaker

v.

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.

v.

United States

(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

Keith L. Carnes

v.

United States

(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

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(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

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(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

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(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

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(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

Knowles v. Hart

(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

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(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

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(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

P.Z. v. New Jersey

(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

Hatch v. Minnesota

(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

Zaitzeff v. Seattle

(21-910)

Wash. Ct. App.

16-Dec-2021

Challenge to Seattle ordinance barring the public carry of certain knives

Cert Denied

Marshall v. BATFE

(21-1155)

4th Cir.

17-Feb-2022

Challenge to 4th Circuit decision vacating opinion striking down under-21 handgun purchase ban

Cert Denied

Rodrigues v. County of Hawaii

(21-895)

9th Cir.

13-Dec-2021

Challenge to arrest on weapons’ charges given the Law Enforcement Officers Safety Act (LEOSA)

Cert Denied

Cassidy v. Massachusetts

(21-1249)

Mass. App. Ct.

1-Mar-2022

Challenge to permit requirement for home firearm possession

Cert Denied

Turner v. Brannon-Dortch

(21-1341)

7th Cir.

4-Apr-2022

Challenge to trial questioning about “illegal” gun that was lawfully licensed

Cert Denied

McCloskey, Petitioner

v.

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

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

Granted, vacated and remanded 30-June 2022

Bianchi v. Frosh

(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

Duncan v. Bonta

(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