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SCOTUS Gun Watch - Week of 2/12/24

  • Date:
  • February 12th, 2024

By: Andrew Willinger

I've added a few cases to the tracker, including two additional 922(g)(1) challenges that seem most likely to be held pending Rahimi (Racliff and Jackson).  I summarized Jackson—which deals with the application of the felon ban to a habitual drug offender and represents a circuit split with the Third Circuit decision in Range, where a petition for review is also pending—in this prior post.  The government filed its response in Jackson on February 5.  The government's brief argues that the Court should hold the case and then "choose between granting plenary review and remanding for further consideration after it issues its decision in Rahimi."

On February 7, the government filed a petition for certiorari in Garland v. VanDerStok , an administrative-law challenge to ATF's regulation of so-called "ghost guns" by expanding the definitions of "firearm" and "frame or receiver" in the Gun Control Act to include component parts readily convertible into firearms (namely, through the use of self-assembly kits).  The Fifth Circuit struck down the rule in November, finding that it "flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy."

However, the Fifth Circuit vacated and remanded to District Judge Reed O'Connor for a determination of the remedy.  The district judge had issued a nationwide vacatur of the rule, but the circuit court vacated this aspect of the decision and remanded "for further consideration of the remedy, considering this Court’s holding on the merits."  Back at the district court level, the parties disagreed on whether the judge could move forward with determining a remedy and entering final judgment or should instead wait for the government’s deadline to seek certiorari as to the Fifth Circuit merits decision to pass (the government filed its petition right around the 90-day deadline).  The other interesting aspect of the ghost-gun litigation is that, in both VanDerStok and a related challenge, the Fifth Circuit had initially allowed Judge O'Connor's decision to vacate the rule to take effect pending appealleading the government to seek and receive (in each instance) an emergency order from the Supreme Court allowing the rule to remain in place pending the Fifth Circuit's ruling on the merits. 

The government's cert petition argues that the Fifth Circuit was incorrect to hold that the plain language of the GCA does not cover weapons parts kits and components that are easily convertible into firearms or frames and receivers.  The government also asserts that the contrary reading urged by the plaintiff weapons-kit manufacturers "would frustrate one of the Act’s principal goals: ensuring that firearms transfers are adequately vetted and recorded so that weapons do not fall into the hands of prohibited persons (and, when they do, that such persons can be prosecuted)" and create a major loophole.  There's no argument about Chevron deference or the rule of lenity in the cert petition; rather, the government focuses solely on the statutory interpretation issue. 

Petitions Granted and Argued or Pending Argument

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

United States

v.

Rahimi

(22-915)

5th Cir.

17-Mar-2023

Facial Second Amendment 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.

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 urging financial institutions to consider the reputational risks of doing business with gun-rights organizations. 

Oral argument set for 18-Mar-24

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.

Oral argument set for 28-Feb-24

 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Garland

v.

VanDerStok

(23-852)

5th Cir.

7-Feb-2024

Administrative law challenge to ATF "ghost gun" rule, which provides that certain products that can readily be converted into an operational firearm or a functional frame or receiver fall within the GCA's defintion of a "firearm" and may be regulated accordingly.

Response due 8-Mar-24

Vincent

v.

Garland

(23-683)

10th Cir.

21-Dec-2023

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

Response due 26-Feb-24

Racliff

v.

United States

(23-6278)

5th Cir.

13-Dec-2023

Second Amendment and Commerce Clause challenge to § 18 U.S.C. 922(g)(1).

Response requested, due 6-Mar-24

Jackson

v.

United States

(23-6170)

8th Cir.

28-Nov-2023

As-applied Second Amendment challenge to § 18 U.S.C. 922(g)(1).

Response filed 5-Feb-2024

United States 

v. 

Perez-Gallan

(23-455)

5th Cir. 

31-Oct-2023

Facial Second Amendment challenge to § 18 U.S.C. 922(g)(8), the domestic-violence restraining order ban.

Distributed for conference 5-Jan-24

United States

v.

Daniels

(23-376)

5th Cir.

5-Oct-2023

As-applied Second Amendment 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.

Distributed for conference 5-Jan-24

Garland

v. 

Range

(23-374)

3d Cir.

5-Oct-2023

As-applied challenge to § 18 U.S.C. 922(g)(1).

Distributed for conference 17-Nov-2023


Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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. 

Cert Denied 8-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.

Cert Denied 8-Jan-24

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. 

Application denied 14-Dec-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; 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