blog/show

SCOTUS Gun Watch - Week of 12/11/23

  • Date:
  • December 11th, 2023

By: Andrew Willinger

The Court released an orders list this morning (likely its final list of the calendar year), but the list does not contain a determination on the Range petition.  It's possible the Court will simply hold the Range petition pending its decision in Rahimi, or at least until that decision takes shape. 

On December 6, Naperville and the state of Illinois responded to the emergency application filed by the plaintiffs in Bevis–a Second Amendment challenge to Illinois' assault weapons and and large-capacity magazine ban–that asks the Supreme Court to enjoin the challenged laws (the Seventh Circuit recently affirmed the district court's denial of plaintiffs' motion for preliminary injunction in the case, a ruling which the plaintiffs are asking the en banc court to reconsider).   Naperville and Illinois argue that the applicants have not met the high standard required for the Supreme Court to issue an affirmative injunction and that no special exigent circumstances exist.  The state and city governments assert that, "[g]iven the substantial evidence showing that assault weapons and LCMs are offensive, militaristic weapons not suitable for self-defense, applicants cannot meet th[eir] burden" of showing the Second Amendment indisputably protects the banned firearms and accessories.  The response also argues that the applicants are also not indisputably likely to succeed at the historical-tradition step of the Bruen analysis due to "a longstanding tradition of regulating 'dangerous and unusual' weapons."   The Bevis plaintiffs' reply was filed on December 7 and argues that the "Court has never hesitated to grant an injunction pending appeal in an appropriate interlocutory case" (citing precedent that is quite recent: namely, the Court's decision to enjoin certain New York COVID restrictions in 2020).  The reply brief also provides a preview of substantive arguments that will likely be raised if the case is re-heard en banc by the Seventh Circuit, including that the state's approach amounts to "back door means-end scrutiny" and that the state conducts the historical tradition inquiry at too high a level of generality. 

[NOTE:  After this update was posted, the Seventh Circuit issued an order denying the petition for rehearing en banc (in the Bevis case only).]

Daniels, Nichols, and Caulkins have been distributed for the January 5, 2024 conference.  The government filed a short reply in Daniels on December 6 reiterating its argument that the Court should hold the petition until it issues a decision in Rahimand also asserting that the Court should not dismiss the petition because it involves an as-applied challenge only based on habitual marijuana use.  Rather, the government argues that the Court routinely grants petitions for review when federal laws are held unconstitutional even in as-applied challenges and that the Fifth Circuit's historical analysis has consequences broader than the specific factual circumstances of Daniels' case.  Hardin and Guedes are now moved to the "Petitions Disposed" listthough there are no official docket updates, it is almost certain these two cases will be held/stayed pending the decision in Cargill as they present identical issues. 

 

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. 

Motion for extension of time submitted 7-Dec-2023; proposal for case to be heard during March 2024 sitting

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

NAGR

v.

Naperville

(23A486 - emergency application)

7th Cir.

27-Nov-2023

Second Amendment challenge to Illinois' ban on semi-automatic firearms and large-capacity magazines. 

Response requested; Fully briefed

Nichols

v.

Newsom

(23-526)

9th Cir.

15-Nov-2023

Second Amendment challenge to California public carry regulations, including open carry ban and school-zone firearm restrictions. 

Distributed for conference 5-Jan-24

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.

Distributed for conference 5-Jan-24

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 filed 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.

Distributed for conference 5-Jan-24

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


Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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; Likely to be held pending Cargill

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; Likely to be held pending Cargill

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 - emergency application)

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