blog/show

SCOTUS Gun Watch - Week of 11/20/23

  • Date:
  • November 20th, 2023

By: Andrew Willinger

The Court released an orders list this morning but there is no order yet in Range, which was considered at last Friday's conference.  The response in United States v. Daniels – an as-applied Second Amendment challenge to the federal ban on gun possession for unlawful users of controlled substances by a regular marijuana user – is due today. 

On November 9, a petition was filed in Caulkins v. Pritzker.  The case is a wide-ranging challenge to Illinois' recently-enacted assault weapons and high capacity magazine ban, the Protect Illinois Communities Act or PICA.  The plaintiffs (a group of gunowners and businesses in Illinois) bring due process, equal protection, and Second Amendment claims.  In August, the Illinois Supreme Court reversed, in a 4-3 decision, a state circuit court decision striking down the law on equal protection grounds related to the law's exemptions for certain groups such as current and former law enforcement officers and grandfathered owners of prohibited weapons and accessories.  The plaintiffs raised a Second Amendment challenge for the first time on appeal to the Supreme Court, which found the argument waived.  The dissenting supreme court justices focused primarily on legislative procedural irregularities.

The plaintiffs now seek certiorari, arguing primarily that certain state supreme court justices should have recused themselves from the case.  They also appear to raise Second Amendment-related and equal protection claims, arguing that the banned semiautomatic weapons are in common use and that "[a]ny historic tradition based on restricting possession by the dangerous, the infirm or persons who pose a danger to others is not measured by the date one procured the firearm to equate the prohibited with the dangerous."  There seems to be a real question about whether the Second Amendment arguments are waived for failure to raise them at the trial court level.   The Seventh Circuit also recently released its decision in a pure Second Amendment challenge to PICA, upholding the law in Bevis v. Naperville primarily by relying on pre-Bruen circuit precedent.  While there is a strong possibility that the challengers in Bevis seek en banc review first, when compared to Caulkins, Bevis seems by far the more likely case to ultimately find its way onto the Supreme Court's docket.

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.

Argued

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. 

Cert granted 3-Nov-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.

Cert granted 3-Nov-2023

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Caulkins

v.

Pritzker

(23-510)

Illinois Supreme Ct.

9-Nov-2023

Due process, equal protection, and Second Amendment challenge to Illinois’ assault weapons and large capacity magazine ban.

Response due 14-Dec-2023

United States 

v. 

Perez-Gallan

(23-455)

5th Cir. 

31-Oct-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.

Response due 30-Nov-2023

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 20-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.

Distributed for conference 17-Nov-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 3-Nov-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 3-Nov-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