" /> SCOTUS Gun Watch – Week of 1/9/23 | Duke Center for Firearms Law
Duke Center for Firearms Law
Duke Law logo

SCOTUS Gun Watch – Week of 1/9/23

By on January 9, 2023 Categories: ,

In Antonyuk v. Nigrelli (a challenge to New York’s post-Bruen gun law that we’ve covered here, here, here, and here), the plaintiffs’ application asking the Court to vacate the Second Circuit’s stay of the district court order striking down large portions of the law remains outstanding.  Meanwhile, opening briefs in the Second Circuit appeal are due today, January 9

The state filed its opposition to the application on January 3, and the petitioners filed their reply on January 5.  New York argues in part that the “Court ordinarily awaits percolation of legal issues in the lower courts before granting review and would benefit from such percolation here.”  The state also asserts that the Second Circuit did not err in granting the stay because the state showed a likelihood of success on the merits due to errors in the district court’s decision, because a stay is in the public interest, and because no irreparable harm will result.  In their reply, the petitioners contend that the interlocutory posture of the case should not preclude Supreme Court review and “that ‘percolation’ of Second Amendment jurisprudence both prior to Heller . . and after Heller . . . did not advance jurisprudence in this area, but instead created mountains of unprincipled and atextual precedents that th[e] Court was required to cast aside.”  The petitioners further argue that the Second Circuit applied the wrong substantive legal standard in determining whether to a grant a stay (namely, they argue that the Court should have required more than a “possibility” of success on the merits to issue the stay). 

One notable item from the briefing is the parties’ dispute over whether the district court applied Bruen correctly to New York’s list of sensitive places.  The state argues that the lower court “invented metrics of relevancy and representativeness, speculative hypotheticals, and an improper demand that [it] identify examples of historical regulations that are both numerous and identical” to the current law.  In their reply, the petitioners assert that “the district court’s analysis using census data was drawn directly from this Court’s methodology.”  In other words, the petitioners read Bruen‘s use of population density in its analysis of territorial laws to require courts to use census data to evaluate all historical sources—only if laws cover a sufficient portion of the U.S. population at the time are they “analogues” that can support a modern regulation.  It’s certainly not clear from Bruen whether census data should be used to evaluate all historical laws (as opposed to just those from territories, or states with very low populations) and, if so, what the relevant population threshold is.  Few lower courts have used census data when applying Bruen.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Antonyuk

v.

Nigrelli

(22A557 – emergency application

2d Cir. 

21-Dec-2022

Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law)

Fully briefed

Beemer 

v.

Whitmer

(22-586)

 

6th Cir.

21-Dec-2022

Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores

Response due 26-Jan-2023

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention 

Distributed for conference 13-Jan-2023

 

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

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

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

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied

Morin v. Lyver

(21-1160)

1st Cir.

13-Dec-2022

Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors

Granted, vacated and remanded 03-Oct-2022

Gun Owners of America v. Garland

(21-1215)

6th Cir.

3-Mar-2022

Challenge to the bump stock ban

Cert Denied

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

Cert Denied

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied

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

Cert Denied

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”

Cert Denied

Mashour Howling

v. 

State of Maryland

Md. Ct. App.

13-Oct-2022

Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence

Cert Denied

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

Cert Denied

WP Twitter Auto Publish Powered By : XYZScripts.com