SCOTUS Gun Watch - Week of 6/5/23
In Rahimi, the respondent filed his brief in opposition to the government's cert petition on May 30. The respondent's brief leans heavily on the fact that Bruen is less than one year old—Rahimi argues that "[a] successful constitutional challenge to a seldom prosecuted gun crime is not an emergency" and emphasizes the importance of "percolation—the independent evaluation of a legal issue by different courts.” In other words, Rahimi contends that the issue simply isn't "cert-worthy" at this point in time.
The brief then turns to the argument that the Fifth Circuit's decision was a correct application of Bruen: "the people" protected by the Second Amendment include all people and not just law abiding or responsible citizens, domestic abuse existed at the time of the Founding and a small minority of states (on paper) allowed divorce on grounds of domestic abuse or even criminal sanction, and dangerousness-based prohibitions and surety laws did not operate similarly to 922(g)(8) and thus are not analogues. Interestingly, the brief concludes by referencing Seekins and suggesting that (g)(8) is also outside the originally understood scope of the commerce power. Although the Commerce Clause was not raised below in Rahimi and is absent from the government's petition, Rahimi's brief argues that "the Court cannot address the Second Amendment question without probing the founders’ and the ratifiers’ understanding of Congressional authority" and that "[t]his is simply another argument in favor of the result below . . . [and] another reason to deny certiorari."
The government filed its response in Seekins on May 22. The government argues that the Supreme Court's 1977 decision in Scarborough v. United States, upholding the felon-in-possession ban as a lawful exercise of the commerce power, was not disturbed by the 1995 Lopez decision striking down the Gun Free School Zones Act as lacking a sufficient nexus to interstate commerce. The government further asserts that "Congress could have reasonably determined that a ban on possession by felons of any firearm or ammunition that has previously moved in interstate commerce is a necessary and proper means of achieving its objectives."
In Vullo, four amicus briefs in support of petitioner the NRA were filed on May 23 and 24. While Vullo is a First Amendment case about alleged government coercion, the amicus briefs—including those filed by a collection of gun-rights advocacy groups and by the states of Texas and Indiana—emphasize a connection to the NRA's Second Amendment advocacy and to the exercise of Second Amendment rights by NRA members. The gun-right advocacy group brief, for example, argues that the Second Circuit "evidenced hostility to rights protected by the Second Amendment and was willing to allow New York to hide behind this 'reputational risk' rationale even though it was once used (unsuccessfully) by segregationists to justify refusing service to black patrons at restaurants and hotels."
It is shaping up to be a busy final few weeks of the term, as the Court will likely consider both Rahimi and Seekins in its upcoming conferences. Notably, in Rahimi the government filed a waiver of the 14-day waiting period for distribution and specifically "request[ed] that the petition be distributed on June 6 so that the Court can consider the petition at its June 22 conference." While it's still ultimately up to the Court whether to do so, the Court's decision to extend the response deadline only to May 30 (and not further) suggests that it will indeed consider the petition prior to the end of the term.
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. |
Response filed, United States waived 14-day waiting period for distribution |
|
(22-6853) |
5th Cir. |
21-Feb-2023 |
As-applied commerce clause challenge to 922(g)(1). |
Response filed, fully briefed |
|
(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 |
|
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 |
|
(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 |