SCOTUS Gun Watch - Week of 6/26/23
The Court issued an orders list this morning but did not decide whether to grant the petition in Rahimi, which it considered at last Thursday's conference. It's not entirely clear when the Court will decide on the Rahimi petition. The Court typically holds a "clean-up" conference immediately before its summer recess. An orders list from that conference is issued on, or soon after, the last "decision day" of the term—which will almost certainly be this Thursday or Friday. Last year, the Court granted certiorari in three cases on Thursday, June 30 (which was also the final decision day). So we may know more on Rahimi later this week. If not, the case will likely be rolled into the Court's Long Conference in late September. If that occurs, it may be because the justices would like to take up Rahimi on the same timeline as another Second Amendment case that will be cert-ready by that time, such as an as-applied 922(g)(1) challenge or an assault weapons ban case.
The Court denied certiorari in Seekins, an as-applied Commerce Clause challenge by a defendant convicted under 922(g)(1) of possessing ammunition as a felon. While the denial in Seekins isn't all that surprising, it is notable Justice Thomas—who has long advocated for the narrower interpretation of the Commerce Clause urged by the petitioner—did not file a dissenting opinion. I suspect that Commerce Clause arguments are likely to resurface in other 922(g) cases in the lower courts.
One new petition is now added to the tracker: Guedes v. ATF, which asks the Court to review the D.C. Circuit's August 2022 decision upholding ATF's bump-stock ban. A unanimous panel held "that the Bureau offered the best construction of the statute without wading into the subsidiary questions that the Chevron analysis poses" and granted ATF's motion for summary judgment. In his petition (which is not yet available on the Supreme Court's website), Guedes argues that ATF misinterpreted the unambiguous statutory language by construing the term "machinegun" to cover bump stocks and that this is an important interpretive question that has divided lower courts. Guedes has a lengthy procedural history—the district court originally denied Guedes' motion for a preliminary injunction, the D.C. Circuit affirmed applying Chevron deference, and the Supreme Court ultimately denied certiorari with Justice Gorsuch filing a separate statement noting his belief that Chevron deference to ATF's construction of the statute was inappropriate. The case has now worked its way back to the Court at a later stage, and the Court may choose to consider Guedes together with Cargill as both implicate similar legal issues surrounding the bump-stock ban.
The response in Vullo opposing the NRA's cert petition was filed on June 23, and that case appears set for consideration at the Long Conference on September 26. The Court will also take up Cargill and the bump-stock ban in September—the government's reply in that case was filed on June 21—as well as Kyung Chang.
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(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 |
|
(22-6853) |
5th Cir. |
21-Feb-2023 |
As-applied commerce clause challenge to 922(g)(1). |
Denied 26-June-2023 |
|
(22-976) |
5th Cir. |
6-Apr-2023 |
Whether a bump stock device constitutes a "machinegun" as defined by federal legislation, and whether ATF acted outside of its statutory authorization in banning bump stocks via regulation. |
Distributed for conference 26-Sep-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 filed 23-June-2023 |
|
Kyung Chang Industry USA, Inc. Eighth Judicial District Court of Nevada, et al. (22-1206) |
Nevada Supreme Court |
9-June-2023 |
Request for interlocutory relief in case involving whether a magazine is a "component part of a firearm" under PLCAA. |
Distributed for conference 26-Sep-2023 |
|
Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives (22-1222) |
D.C. Cir. |
14-June-2023 |
Whether a bump stock device constitutes a "machinegun" as defined by federal legislation, and whether ATF acted outside of its statutory authorization in banning bump stocks via regulation. |
Petition filed 14-June-2023 |
Petitions Disposed
|
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). |
Decided 16-June 2023 |
|
(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 |
|
(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 |