blog/show

SCOTUS Gun Watch - Week of 10/23/23

  • Date:
  • October 23rd, 2023

By: Andrew Willinger

In Rahimi, the government's reply brief is due this Friday, October 27.  A response was filed to the government's cert petition in Range on October 18.  In his brief, Range argues that his case and Rahimi present "complementary and important [issues], and it would be beneficial for the Court’s decision making to consider both during the same Term."  The brief explains further that, in Range's view,

[t]his case and Rahimi separately present the two halves of [a] dichotomy.  The question in Rahimi is whether, or how, the government can preclude a dangerous person without a predicate conviction from possessing a firearm.  This case asks the complementary question: can the government always preclude a person (even a nondangerous one) from possessing a firearm just because he has a predicate conviction?

Range thus agrees with the government that the Court should grant certiorari, but contends that the best course of action is for the Court to grant now in Range and hear the two cases on the same timeline—presumably with argument early next year so that a decision could be issued by the end of the term.  Otherwise, Range argues, "[i]f this case is held for Rahimi, there is little doubt the same fault lines would emerge again without much, if any, additional clarity being added to the issues."  While this outcome makes some sense in the abstract, I believe the fast-approaching oral argument in Rahimi makes it quite unlikely that the Court seriously entertains Range's request.  No response has been filed yet in Daniels.  

Interestingly, the Court has not issued any order or disposition in Vullo despite considering that petition at its October 13 conference.  CargillGuedes, and Hardin (the three bump-stock cases) are slated for consideration at the Court's October 27 conference, with orders presumably to follow next Monday. 

In emergency docket activity, on October 16 the Supreme Court issued a non-substantive docket order granting a motion to vacate an injunction of ATF's ghost-gun regulations in Garland v. Blackhawk Manufacturing (over no noted dissents).  District Judge Reed O'Connor issued an order in the case in September enjoining ATF's "frame or receiver" rule—designed to regulate weapon parts kits as "firearms" under the GCA—after finding that the plaintiffs were likely to succeed on their administrative law claims that ATF acted in excess of its statutory authority (in a prior related case, Vanderstok, the Supreme Court stayed a similar injunction entered by Judge O'Connor in August).  In both instances, the Fifth Circuit had allowed Judge O'Connor's order enjoining the ATF rule to remain in place pending appeal.  The Court's October 16 action, then, can be interpreted as a direct rebuke of that approach.  

Also on the emergency docket, on October 20 the Court denied an application by the state of Missouri for a stay of a district court order invalidating the state's Second Amendment Preservation Act (or SAPA).  After the law—which purports to nullify any federal law or executive action "that infringe[s] on the people’s right to keep and bear arms" in Missouri—was struck down by a district judge in March, it remained in effect pending resolution of a motion to stay in the Eighth Circuit.  In late September, the circuit court denied the motion and SAPA was enjoined, prompting Missouri to ask the Supreme Court to step in and re-impose the stay pending a decision on the merits at the appellate level.  Missouri argued that it is likely to prevail on appeal because "[n]either the district court nor the United States has identified any text in the Act that empowers state officials to enforce it" (in other words, because SAPA "plainly contemplates only enforcement by private citizens," it can't be challenged by suing the state).  This is the same argument made in favor of Texas' S.B. 8, an abortion restriction that was plainly unconstitutional pre-Dobbs but could only be enforced by private citizens.  Justice Thomas noted a dissent and would have granted Missouri's application.  In a one-paragraph statement, Justices Gorsuch and Alito agreed with the denial "under the present circumstances" but observed that "[a]n injunction purporting to bind private parties not before the district court" would be improper.  It's not immediately clear to me where that leaves things with the Missouri law—if the law can only be enforced by private parties and the district court's injunction applies exclusively to government actors, then the injunction appears to have no practical impact.  In any event, the case will be a fascinating one to track at the Eighth Circuit and potentially presents a vehicle for the Supreme Court to issue clearer guidance on private-party enforcement mechanisms than its fractured December 2021 decision in Whole Woman's Health (due to Dobbs, it's unlikely that federal constitutional challenges to S.B. 8 remain viable).  

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 challenge to § 18 U.S.C. 922(g)(8) – which prohibits those subject to certain domestic-violence restraining orders from possessing firearms during the duration of the order – 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

United States

v.

Daniels

(23-376)

5th Cir.

5-Oct-2023

As-applied challenge to § 18 U.S.C. 922(g)(3) – which prohibits those who are "unlawful user[s] of or addicted to any controlled substance" from possessing firearms – under the Second Amendment.

Response due 9-Nov-2023

Garland

v. 

Range 

(23-274)

3d Cir.

5-Oct-2023

As-applied challenge to § 18 U.S.C. 922(g)(1) – which prohibits those convicted of felony offenses from possessing firearms – under the Second Amendment.

Response filed 18-Oct-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 subjecting bump stocks to heightened regulation under the NFA.

Distributed for conference 27-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.

Distributed for conference 27-Oct-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 13-Oct-2023

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.

Distributed for conference 27-Oct-2023


Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

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