blog/show

SCOTUS Gun Watch - Week of 6/12/23

  • Date:
  • June 12th, 2023

By: Andrew Willinger

As we approach the end of the 2022-2023 Supreme Court Term, public attention is primarily focused on the decisions in cases such as Students for Fair Admissions (challenges to the consideration of race in college admissions under the Civil Rights Act and the Equal Protection Clause), 303 Creative (a case implicating religious freedom under the First Amendment and state LGBTQ anti-discrimination laws), Moore v. Harper (where North Carolina's Republican legislators have asked the Court to adopt the "independent state legislature" theory for matters related to federal elections), and Biden v. Nebraska (a legal challenge to the Biden administration's student loan forgiveness plan).  Decisions in each case will be released in the coming weeks—there is no set deadline, but the Court releases all opinions and recesses for the summer by the first week of July.  

In the Second Amendment arena, however, the real action will occur at the Supreme Court's final conference of the term on June 22 (with an orders list expected to follow the next Monday, June 26).  Both Rahimi and Seekins have been distributed for consideration at the June 22 conference.  On June 6, reply briefs in each case were filed.  In Rahimi, the government spends much of its reply brief responding to Rahimi's argument that review is premature and unwarranted.  The government argues that "courts of appeals have extensively debated which categories of persons the government may disarm consistent with the history of the Second Amendment" since Bruen was issued (citing the recent en banc Third Circuit decision in Range granting an as-applied challenge to 922(g)(1)), that no further "percolation" is necessary, and that "[i]t is not uncommon for the Court to address the application of one of its decisions" with a two-term gap (citing the time gap between Heller and McDonald).  The government also asserts that any commerce clause argument cannot be used to sustain the Fifth Circuit's decision because the issue was not properly raised below and Rahimi conceded that the weapon he possessed had moved in interstate commerce.

In Seekins, which squarely presents the commerce clause question, the petitioner's reply argues that “[i]t’s hard to imagine a more local crime” than Mr. Seekins' possession of a shotgun shell taken from a dumpster, and that "[t]he Court should review whether the federal government can criminalize the mere possession of any object that once traveled in interstate commerce."  Seekins further contends that the conduct "was not part of an economic ‘class of activities’ that have a substantial effect on interstate commerce" and that "the challenge of proving that particular conduct falls within Congress’s power does not justify expanding that power beyond its proper bounds." 

As I've written previously, I believe the Court is likely to grant cert in Rahimi—both because the decision implicates the facial constitutionality of a federal criminal statute and due to the growing (and divergent) appellate case law on the question of which groups may be categorically disarmed under a historical analysis.  I would be surprised to see a grant in Seekins, where the petitioner appears to advocate for a major change in commerce clause jurisprudence that would have far-reaching impacts.  With that said, I think we can expect a spirited dissenting opinion from at least Justice Thomas (who has forcefully articulated his support for a return to the more narrow "original understanding" of the commerce clause power in cases such as Morrison and Gonzales). 

Finally, in Garland v. Cargill, the respondent filed his response to the attorney general's cert petition on June 7.  Interestingly, Cargill urges the Court to grant certiorari despite prevailing below.  Cargill references the sharp divide among appellate courts over the legality ATF's bump-stock ban and the fact that the question presented "is an issue of statutory construction that affects many Americans."  Cargill also asks the Court to expand the scope of review to include whether ATF's rule violates the rule of lenity.  While the response seems to moderately increase the likelihood of a cert grant, it doesn't appear that Cargill will be distributed for conference this term (which likely means the Court will consider the petition at its "Long Conference" in September).  

As we await cert decisions in Rahimi and Seekins, we will be running a follow-up post on the blog later this week with a summary of the cert-stage amicus briefs filed in Rahimi.  

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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.

Distributed for conference 22-June-2023

Seekins

v. 

United States

(22-6853)

5th Cir.

21-Feb-2023

As-applied commerce clause challenge to 922(g)(1). 

Distributed for conference 22-June-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 filed 7-June-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

Petitions Granted and Argued

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

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. 

Denied 17-May-2023

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 24-Apr-2023

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 27-Mar 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 27-Feb-2023

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

Greco 

v. 

Platkin

(22-478)

3d Cir. 

13-May-2022

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

Cert Denied 17-Jan-2023

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)

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 5-Dec-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

Cert Denied 14-Nov-2022

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 14-Nov-2022

Torcivia

v.

Suffolk County

(21-1522)

2d Cir.

31-May-2022

Challenge to warrantless home entry to seize firearms

Cert Denied 14-Nov-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"

Cert Denied 31-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

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

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 for further consideration in light of Bruen 3-Oct-2022

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

Cert Denied 3-Oct-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 for further consideration in light of Bruen 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 for further consideration in light of Bruen 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 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