The emergency application to reverse the district court decision denying a preliminary injunction of Illinois’ assault weapons and LCM ban in Bevis is now fully briefed and ready for decision. The state’s response, which was filed on May 10, argues that the Court should deny the application due to the interlocutory posture of the case, the lack of a circuit split, and what the state characterizes as the applicants’ failure to demonstrate that they are entitled to injunctive relief. To the final point, Illinois asserts that LCMs are not “arms,” that ” applicants have not shown that it is indisputable that assault weapons or LCMs are commonly used for self-defense,” and that “[t]he Act is ‘relevantly similar’ to historical regulations with respect to dangerous and unusual weapons” under Bruen‘s more nuanced approach. The applicants filed a reply brief on May 10, and Illinois filed a letter on May 12 attaching an expedited briefing schedule from the Seventh Circuit for two consolidated challenges to the Illinois law, Bevis and Barnett (under the schedule, oral argument would take place on June 29). While I think it would be highly unusual for the Court to issue a merits ruling here through the emergency docket before the Seventh Circuit can hear the appeal, there’s little doubt that the Court will ultimately need to clarify Bruen‘s application to assault weapon and LCM bans (whether in an eventual appeal of the Seventh Circuit’s ruling, or in another pending case).
In Garland v. Cargill, where the en banc Fifth Circuit struck down the Trump-era ATF bump stock ban, a group of gun-violence prevention groups filed an amicus brief in support of the government on May 8. They argue generally that the Fifth Circuit improperly used the rule of lenity in a manner that would allow “courts to rewrite statutes whenever they perceive any ambiguity.” Cargill’s response to the petition for certiorari is due on June 7.
(Note that we’ve now removed all petitions that were adjudicated prior to Bruen from the tracking tables below. The number of cases was becoming unwieldy and Bruen is a natural cut-off point, but you can still view the earlier petitions by navigating to any of the prior SCOTUS update posts. There is now color-coding as well: emergency applications at an interlocutory stage of the case are shaded in red, and decided cases are shaded in blue. We’ve added an additional table for Petitions Granted and Argued, where I’ll move cases once they are argued and awaiting decision. The Petitions Pending will be listed with those distributed for conference or fully briefed first, and then in reverse chronological order by the date of the most recent substantive docket activity: filing of a petition, response, reply, or supplemental brief.)
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(22A948 – emergency application) |
7th Cir. |
26-Apr-2023 |
Emergency application for injunction of Illinois assault weapons and LCM ban pending appeal of district court order upholding the law. |
Fully briefed 5-May-2023 |
|
(22-976) |
5th Cir. |
6-Apr-2023 |
Whether a bump stock devices constitutes a “machinegun” as defined by federal legislation, and whether ATF acted outside of its statutory authorization in banning bump stocks via regulation. |
Response due 7-June-2023 |
|
(22-915) |
5th Cir. |
17-Mar-2023 |
Facial constitutional challenge to § 18 U.S.C. 922(g)(8) under the Second Amendment. |
Response due 23-May-2023 |
|
(22-6853) |
5th Cir. |
21-Feb-2023 |
As-applied commerce clause challenge to 922(g)(1). |
Response requested, due 22-May-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. |
Response requested, due 23-June-2023 |
Petitions Granted and Argued
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(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). |
Argued 28-Mar-2023 |
Petitions Disposed
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(22-622) |
2d Cir. |
4-Jan-2023 |
Second Amendment, Fifth Amendment, and vagueness challenge by New York firearms dealers to state regulations on the commercial sale of firearms. |
Cert Denied 24-Apr-2023 |
|
(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. |
Cert Denied 27-Mar 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 27-Feb-2023 |
|
(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 |
|
(22-478) |
3d Cir. |
13-May-2022 |
Challenge to NJ extreme-risk-protection law under Fourth Amendment / Younger abstention |
Cert Denied 17-Jan-2023 |
|
(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) |
|
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 5-Dec-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 |
Cert Denied 14-Nov-2022 |
|
Md. Ct. App. |
13-Oct-2022 |
Challenge to Maryland jury instructions for possessing firearm after conviction for a crime of violence |
Cert Denied 14-Nov-2022 |
|
|
(21-1522) |
2d Cir. |
31-May-2022 |
Challenge to warrantless home entry to seize firearms |
Cert Denied 14-Nov-2022 |
|
(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 31-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 |
Cert Denied 3-Oct-2022 |
|
Gun Owners of America v. Garland (21-1215) |
6th Cir. |
3-Mar-2022 |
Challenge to the bump stock ban |
Cert Denied 3-Oct-2022 |
|
(21-1160) |
1st Cir. |
13-Dec-2022 |
Challenge to Massachusetts’ bar on handgun purchases for those with nonviolent misdemeanors |
Granted, vacated and remanded for further consideration in light of Bruen 3-Oct-2022 |
|
(21-159) |
10th Cir. |
2-Aug-2021 |
Challenge to agency deference re the bump stock ban |
Cert Denied 3-Oct-2022 |
|
(21-1194) |
9th Cir. |
28-Feb-2022 |
Challenge to California ban on magazines holding 10 rounds or more |
Granted, vacated and remanded for further consideration in light of Bruen 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 for further consideration in light of Bruen 30-June 2022 |
|
(20-1639) |
9th Cir. |
11-May-21 |
Challenge to Hawaii’s restrictive open carry law |
Granted, vacated and remanded for further consideration in light of Bruen 30-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 for further consideration in light of Bruen 30-June 2022 |
|
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 |
