There was major news from the Supreme Court on Friday, as the federal government filed a petition for certiorari in United States v. Rahimi. In Rahimi, a Fifth Circuit panel struck down as unconstitutional § 18 U.S.C. 922(g)(8)—which prohibits gun possession by those subject to certain domestic-violence protective orders issued after notice and a hearing (we covered the original panel opinion in Rahimi here and here; the judges subsequently withdrew that opinion and re-filed a revised version reaching the same result).
Following the panel decision, the government had the option to either seek en banc review or file a petition for certiorari. It chose the latter route and filed a petition last Friday, although the Court’s internal docket does not yet reflect this (it can take some time after a petition is filed for the case to show up on the Court’s website). In the petition, the government argues that “Section 922(g)(8) fits squarely within the longstanding tradition of disarming dangerous individuals,” that the Fifth Circuit erred by conducting too narrow of a historical analysis, and that “it would be bizarre if legislatures could disarm dangerous individuals based on categorical presumptions, but not based on individualized judicial findings after notice and a hearing.” The petition also explains that “the government is filing . . . a writ of certiorari on a highly expedited schedule—a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion—in order to allow the Court to consider the petition before it recesses for the summer.” This would, presumably, put the case on track to be argued early in the fall if certiorari is granted.
Overall, it seems quite likely that the Court will decide to take Rahimi even without a direct circuit split on this particular statute. As the petition notes, the Court has said in recent years that it is “usual” practice to grant certiorari when a federal appellate court strikes down a federal statute as unconstitutional; and Justice Thomas, writing separately with respect to a procedural ruling in a 2014 case, wrote that the Court “ha[s] recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional.” It’s worth noting that this same calculus might not apply to the other litigation most likely to work its way up to the Court sometime later this year—challenges to New York’s post-Bruen gun regulations, which are set to be argued before a Second Circuit panel this afternoon (although the Court’s docket is, of course, entirely discretionary and it’s difficult to predict how things will play out). It is also unclear to me to what extent pre-Bruen decisions upholding 922(g)(8), with some historical analysis, create a circuit conflict: those decisions obviously did not apply Bruen, but they did in some cases reach different conclusions about American historical tradition.
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
United States v. Rahimi (Case No. pending) |
5th Cir. |
17-Mar-2023 |
Facial constitutional challenge to § 18 U.S.C. 922(g)(8) under the Second Amendment. |
Petition filed 17-Mar-2023 |
|
The National Rifle Association of America (22-842) |
2d Cir. |
7-Feb-2023 |
First Amendment challenge by the NRA to state government guidance and press urging banks and insurance companies to consider the reputational risks of doing business with gun-rights organizations. |
Petition filed 7-Feb-2023 (Leave to file under seal granted) |
|
(22-806) |
1st Cir. |
17-Feb-2023 |
Whether the Massachusetts state crime of straight assault becomes a violent felony that satisfies the ACCA’s force requirement because it was committed with a dangerous weapon. |
Distributed for conference 24-Mar-2023 |
|
(22-49) |
2d Cir. |
15-July-2022 |
Whether 18 U.S.C. § 924(c)(1)(D)(ii) requires consecutive sentences be imposed for a defendant convicted and sentenced under 924(j). |
Set for argument 28-Mar-2023 (Reply submitted 17-Mar-2023) |
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 |
|
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 |
|
(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 |
|
(21-159) |
10th Cir. |
2-Aug-2021 |
Challenge to agency deference re the bump stock ban |
Cert Denied |
|
(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 |
|
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 |
|
(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. (22-25) |
Fed Cir. |
8-July-2022 |
Challenge to ATF bump stock ban under 5th Amendment takings clause |
Cert Denied |
|
(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 |
|
Md. Ct. App. |
13-Oct-2022 |
Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence |
Cert Denied |
|
|
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 |
|
(22A557 – emergency application) |
2d Cir. |
21-Dec-2022 |
Application to lift stay of district court preliminary injunction pending appeal (NY post-Bruen gun law) |
Denied 11-Jan-2023; Justice Alito issued a separate statement (joined by Justice Thomas) |
|
(22-478) |
3d Cir. |
13-May-2022 |
Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention |
Cert Denied |
|
(22A591 – emergency application) |
2d Cir. |
29-Dec-2022 |
Application to reverse district court order denying preliminary injunction and enter administrative stay (NY commercial gun regulations) |
Denied 18-Jan-2023 |
|
(22-586) |
6th Cir. |
21-Dec-2022 |
Mootness of challenge to Michigan COVID-19 restrictions, including Second Amendment challenge to order closing gun stores |
Cert Denied |
