SCOTUS Gun Watch - Week of 10/2/23
The respondent's merits brief in Rahimi was filed on September 27. The brief argues that "[n]othing in the history of American firearm regulation remotely resembles § 922(g)(8)[’s]" ban on possessing firearms for the duration of a domestic violence restraining order.
Rahimi asserts that domestic violence was not state-approved during the Founding Era, but that historical regulatory mechanisms simply did not "involve[] disarmament or firearm bans." The brief contends that potential historical analogues targeted groups outside of "the people" protected by the Second Amendment, operated differently in terms of "how" and "why" they burdened the right to armed self-defense, and cannot alter the historical principle that "American governments . . . observe[d] a 'zone of immunity' surrounding citizens’ private ownership and possession of firearms in the home." Notably, the brief also takes narrow views of the Heller carveouts ("Heller’s tentative 'presumptively lawful' categories are not valid bases for constitutional comparison"), the historically supported process for possession bans generally (suggesting that this must include an "indictment and jury trial"), and what constitutes a sufficient analogue under Bruen (implying that the government must identify "federal or nationwide" analogues to support a modern-day federal regulation). There is also discussion of the procedural protections available to DVRO respondents, with the brief picking up on Fifth Circuit Judge James Ho's suggestion that "[t]he risk of error is high" in DVRO proceedings and arguing that 922(g)(8) may be procedurally insufficient because "'[o]pportunity to be heard' does not mean resolution of disputed facts or dangerousness" (for more detail on the "hearing" aspect of the case, see this earlier post).
Amicus briefs in support of the respondent are due this Wednesday, October 4. Per the Supreme Court's rules, the government's reply brief should be due on October 27 with the oral argument to follow on November 7.
The Court released its first orders list of the new term this morning. The Court denied certiorari in Kyung Chang, which raised an issue of statutory interpretation under PLCAA. There is no update on the petition in Vullo, which was also considered at the September 26 Long Conference. Vullo involves a First Amendment retaliation claim brought by the NRA related to New York state guidance about the reputational risks of doing business with gun-rights organizations.
On September 28, the Court rescheduled both Cargill and Guedes. The two cases had previously been distributed for the October 6 conference. While it's not entirely clear, the Court may be delaying its consideration of those two petitions until the period for a reply runs in Hardin (which involves a similar challenge to the ATF's regulation of bump stock devices). Any reply in Hardin is due by October 4, which would put the three cases on track to be considered at the Court's October 13 conference.
Petitions Granted and Pending Argument
|
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. |
Respondent's opposition brief filed 27-Sep-2023; Petitioner's reply brief due 27-Oct-2023; Argument set for 7-Nov-2023 |
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(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 subjecting bump stocks to heightened regulation under the NFA. |
Rescheduled |
|
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. |
Distributed for conference 26-Sep-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. |
Cert Denied 2-Oct-2023 |
|
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 subjecting bump stocks to heightened regulation under the NFA. |
Rescheduled |
|
(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 subjecting bump stocks to heightened regulation under the NFA. |
Response filed 20-Sep-2023 |
Petitions Disposed
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(23A82) |
5th Cir. |
27-July-2023 |
Application for stay of district court judgment invalidating ATF "ghost gun" rule while appeal to the Fifth Circuit is pending. |
Stay granted 8-Aug-2023 |
|
(22-6853) |
5th Cir. |
21-Feb-2023 |
As-applied commerce clause challenge to 922(g)(1). |
Denied 26-June-2023 |
|
(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 |