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SCOTUS Gun Watch - Week of 11/6/23

  • Date:
  • November 6th, 2023

By: Andrew Willinger

It was an especially busy day at the Supreme Court on Friday for gun-related cases.  The Court granted certiorari in both Vullo (a First Amendment challenge to state business guidance urging certain corporations to consider the reputational risks of doing business with gun-rights organizations) and Cargill (which presents the question of whether ATF's regulation of bump stocks under the NFA was a permissible exercise of the agency's authority).  Both cases will be heard as part of the October 2023 Term, together with Rahimi.  While Vullo and Cargill involve firearms or firearm-centric organizations, neither case includes a Second Amendment claim.  

In Vullo, the Court limited its grant to the first question presented in the petition:

Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?

The government filed its reply in Range on November 1 and the petition was distributed for consideration at the Court's November 17 conference.  Among other arguments, the government reiterates its position that the Court should hold Range pending a decision in Rahimi.  The government states that

Range’s contrary proposal to hear this case this Term would create significant practical problems for this Court and for the parties. . . . By the time the Court considers the petition for a writ of certiorari in this case, it will have already heard argument in Rahimi—and presumably will have already considered some or all of the Second Amendment issues [implicated in Range]. Range’s proposal would thus require the parties to submit, and the Court to review, another set of briefs relitigating many of the same issues without the benefit of this Court’s guidance in Rahimi.

On October 31, the government filed a petition for certiorari in United States v. Perez-Gallan (in November 2022 a district judge issued a decision in that case striking down 922(g)(8), which we covered here, and the Fifth Circuit summarily affirmed under Rahimi).  Perez-Gallan presents the same facial Second Amendment challenge to the federal domestic violence restraining order ban as Rahimi, and the government's petition asks the Court to hold the petition in Perez-Gallan pending Rahimi

Rahimi will be argued tomorrow, Tuesday, November 7, beginning at 10:00 AM Eastern Time.  Rahimi is the sole case set for argument tomorrow.  The argument can be livestreamed here

 

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.

Fully briefed; Argument set for 7-Nov-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. 

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

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