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SCOTUS Gun Watch - Week of 10/2/23

  • Date:
  • October 2nd, 2023

By: Andrew Willinger

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

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.

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

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 subjecting bump stocks to heightened regulation under the NFA.

Rescheduled

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. 

Cert Denied 2-Oct-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 subjecting bump stocks to heightened regulation under the NFA.

Rescheduled

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 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

Garland 

v. 

Vanderstok

(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

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