blog/show

SCOTUS Gun Watch - Week of 7/31/23

  • Date:
  • July 31st, 2023

By: Andrew Willinger

There's no update yet on the oral argument date in Rahimi, although I suspect that information may be coming within the next few weeks.

On July 27, the government made an emergency application to the Court in Garland v. Vanderstok.  Judge Reed O'Connor of the Northern District of Texas issued an order in the case on June 30 vacating the ATF's final "frame or receiver" rule, which aims to bring a larger set of firearm component parts within the scope of federal regulation.  Judge O'Connor held that "[b]asic principles of statutory interpretation decide this case" because the plain meaning of the term "firearm" in the Gun Control Act of 1968 does not encompass component parts which may in the future become frames or receivers, or weapon parts kits.  Therefore, Judge O'Connor "vacate[d] the Final Rule on grounds that the agency acted beyond the scope of its legitimate statutory authority in promulgating it."  The Fifth Circuit rejected the government's request to stay Judge O'Connor's judgment on July 24 in a short order, while also expediting consideration of the appeal and paring back the scope of the vacatur (the appellate court found that Judge O'Connor's order was overbroad because, rather than sever the parts of the rule the judge concluded were unlawful, he vacated the rule in full).  The government has now asked the Supreme Court to step in and grant a stay of the vacatur order pending the Fifth Circuit's consideration on the merits.  In the alternative, the government asks the Court to treat the application as a petition for certiorari before judgment and notes that it "would be prepared to brief this case on a schedule that would allow it to be argued during the November 2023 sitting."  This is the fourth time in the current term that the government has sought emergency relief—the Biden administration is 1 for 3 this term in emergency applications, and 4 for 9 overall. 

On July 29, Justice Alito issued an administrative stay of the district court vacatur order until 5 pm on August 4 (with any response due by August 2).  This presumably means that the full Court will rule on the government's request by Friday.  Also on July 29, 20 states and the District of Columbia filed an amicus brief in support of the government's request for a stay, arguing that the ATF rule is consistent with the GCA and "complements state efforts to regulate unserialized firearms."

In Guedes, where challengers of the ATF's bump-stock ban are appealing the D.C. Circuit's decision that the ban was a permissible exercise of agency authority under the NFA, gun-rights advocacy groups including the Gun Owners of America filed an amicus brief in support of the petitioners on July 20.  In their brief, the amici argue that the statutory language only covers "an actual machine gun — not a bumpstock-equipped semiautomatic rifle where which the trigger is 'released' and reset with every shot."  The brief also notes that two prior Sixth Circuit decisions struck down the bump-stock ban (including one case in which the en banc court split 8-8 and thus affirmed the district court decision striking down the rule by default).  The other Sixth Circuit decision, a panel opinion in Hardin v. ATF that was unanimous as to the judgment, held that the statutory language in the NFA was ambiguous, that ATF was not entitled to Chevron deference, and that the rule of lenity required the court to find in favor of the challengers (I've written previously about the decline of Chevron deference in the context of firearm regulation).  On July 21, the government filed a petition for certiorari in Hardin.  The petition asks the Court to grant certiorari in Cargill rather than Hardin because, in the government's view,  "[a]s between the two cases, Cargill is the better vehicle in which to address the question presented" because it was an en banc decision that more thoroughly evaluated the legal questions.  It's not clear to me how much weight this request will carry with the Court, but I do think the odds are increasing that the Court grants cert in one of the bump stock cases this fall.

Another case worth keeping an eye on is Range v. Attorney General, where the en banc Third Circuit held the felon prohibitor unconstitutional as applied to a nonviolent felon (we covered that decision here).  The en banc decision and judgment in Range were filed on June 6 and the government has 90 days to petition for certiorari, which means that a petition must be filed by September 4. 

 

Petitions Granted and Pending Argument

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.

Cert granted 30-June-2023

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Garland

v. 

Cargill

(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 

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. 

Distributed for conference 26-Sep-2023

Kyung Chang Industry USA, Inc.

v. 

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.

Response due 21-Aug-2023

Hardin

v.

Garland, ATF, et al. 

(23-62)

6th Cir. 

21-July-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.

Response due 21-Aug-2023

Garland 

v. 

Vanderstok

(23A82)

5th Cir. 

27-July-2023

Application for stay of district court judgment invalidating ATF "ghost gun" ban while appeal to the Fifth Circuit is pending.

District court order stayed until 4-Aug-2023; Response due 2-Aug-2023


Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Seekins

v. 

United States

(22-6853)

5th Cir.

21-Feb-2023

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

Denied 26-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).

Decided 16-June 2023

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