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SCOTUS Gun Watch - Week of 12/4/23

  • Date:
  • December 4th, 2023

By: Andrew Willinger

The Court isn't set to issue an orders list this morning; rather, the final list of the calendar year will come next Monday, December 11.  The major case to watch from a Second Amendment perspective is Range, which was mentioned at the Rahimi oral argument and is clearly on the minds of some justices. 

On November 15, a pro se petition was filed in Nichols v. Newsom—a Second Amendment challenge to various California public carry regulations (including state restrictions on how and when guns can be kept or carried within 1,000 feet of a school and the state's ban on open carry).  The petitioner also raises a challenge to procedural aspects of the district and appellate court rulings in the case.  In both Nichols and Caulkins (a case dealing with Illinois' assault weapons and large-capacity magazine ban), the state-respondents have waived their right to respond to the petitions for certiorari.

The response brief in Perez-Gallan, which involves a Second Amendment challenge to the federal domestic-violence restraining order ban on gun possession in 922(g)(8)the same law at issue in Rahimi–was filed on November 30.  Perez-Gallan urges that, "if the Court’s decision in Rahimi dictates remand to the Fifth Circuit, . . . the Court [should] remand with instructions to consider his as-applied challenge" to 922(g)(8).  That is because, according to Perez-Gallan, his challenge differs from Rahimi in two important ways: (1) "Perez-Gallan was alleged to have been violent solely within his own home, directed his violence solely at his domestic partner, and did not use a firearm as part of that violence"; and (2) "Perez-Gallan was alleged to have possessed a firearm in a different state from his domestic partner and possessed it to protect himself in a dangerous area."  It seems a near certainty that the Court will hold Perez-Gallan for the time being pending its decision in Rahimi. 

On November 27, a subset of plaintiffs in the ongoing litigation challenging Illinois' ban on certain semiautomatic firearms and large-capacity magazines (the National Association for Gun Rights, Robert Bevis, and Law Weapons & Supply) filed an emergency application with the Court.  On November 3, the Seventh Circuit upheld Illinois' law in the first appellate decision on a state assault weapons ban post-Bruen.  The panel majority relied on the circuit's earlier decision in Friedman, the perceived circularity of the "common use" test, and "the distinction between military and civilian weaponry" to conclude that the banned firearms and magazines are not protected "arms" and that the law is consistent with historical tradition.  Judge Brennan dissented.  The emergency application, which relates only to the Bevis case where the Seventh Circuit affirmed the district court ruling denying a preliminary injunction, asks the Supreme Court to enter an injunction in the first instance "restraining enforcement of the challenged laws pending the disposition of [a] petition for rehearing en banc in the Seventh Circuit and the filing and disposition of any follow-on petition for writ of certiorari."  Justice Barrett, the circuit justice for the Seventh Circuit, has requested a response from the state that is due on Wednesday, December 6.  The Court summarily dismissed a prior emergency application in the case while the Seventh Circuit decision was pending (we covered that application here).  From the Seventh Circuit docket, it appears that the plaintiffs in each of the consolidated cases challenging the Illinois law recently filed requests for the full circuit to rehear the case en banc.  

 

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

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 by Justice Barrett; due 6-Dec-2023

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. 

Respondent waived right to respond 1-Dec-2023

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.

Respondent waived right to respond 1-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 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.

Response filed 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 - 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