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SCOTUS Gun Watch - Week of 5/8/23

  • Date:
  • May 8th, 2023

By: Andrew Willinger

On April 26, the plaintiffs in a case challenging Illinois' new law banning assault weapons and large-capacity magazines filed an application for an emergency injunction with the Supreme Court.  Judge Virginia Kendall of the Northern District of Illinois denied a motion to preliminarily enjoin the Illinois law on February 17, and the plaintiffs appealed her ruling in Bevis v. Naperville to the Seventh Circuit.  After the appellate court denied the plaintiffs' request to enjoin the law pending appeal, they sought relief at the Supreme Court.  The application was submitted to Justice Barrett, who requested a response from the state which is due at noon today.

After the application in Bevis was submitted, on April 28, a judge in the Southern District of Illinois granted a motion to enjoin the Illinois law in Barnett v. Raoul.  On May 4, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals entered a stay of the Barnett injunction "pending further order of the court," which means that Illinois' law is back in force for the time being.  Judge Easterbrook's order directed that any response to the stay motion should be filed by May 9 and address the applicability of pre-Bruen Seventh Circuit precedent to the case.  

Despite Justice Barrett's request for a response from Illinois in Bevis, it would be unusual for the Court to take the step of reversing a district court decision on its own through the emergency docket before the relevant appellate court has a chance to weigh in on the merits.  In fact, the Court declined to intervene in a very similar scenario back in January when plaintiffs in a case challenging New York's post-Bruen public carry regulations filed an emergency motion to vacate a stay entered by the Second Circuit of a district court order striking down portions of the state law at issue (Justice Alito, joined by Justice Thomas, filed a separate opinion agreeing with the Court's decision to deny the motion but expressing doubts about the constitutionality of New York's law). 

In Bevis, two amicus briefs have been filed in support of the emergency application.  A brief filed by the National Shooting Sports Foundation argues that "the tradition of the American people is that law-abiding citizens may keep and bear arms that are commonly possessed for lawful purposes like self-defense."  And a brief by Dr. Javier Herrera, the plaintiff in a related case challenging Illinois' law, asserts that "[i]f concealed carry regulations are sufficiently analogous to justify banning commonly owned firearms at home, then Bruen is a blank check."  

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Bevis

v. 

City of Naperville

(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. 

Response requested, due 8-May-2023

Garland

v. 

Cargill

(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

United States

v.

Rahimi

(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

Seekins

v. 

United States

(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 

v.

Vullo

(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

Lora

v. 

United States

(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

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

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)

Denied 11-Jan-2023; Justice Alito issued a separate statement (joined by Justice Thomas)

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

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

Cert Denied

Gazzola 

v.

Hochul 

(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

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

Cert Denied

Doe

v.

United States

(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

Gazzola 

v. 

Hochul

(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