blog/show

SCOTUS Gun Watch - Week of 2/19/24

By: Andrew Willinger

The tracker has been updated once again with a number of recently-filed 922(g) petitions, including several from the Fifth Circuit.  As with Rahimi, these cases all involve a federal public defender arguing on behalf of a criminal defendant that a federal status-based gun prohibition is unconstitutional (and, in each case, the appellate court ruled in favor of the government).  The cases are almost certain to be held and then remanded once the Court decides Rahimi.  In several of these cases, the government has waived its right to respond and the petition is now distributed for the Court's March 1 conference.  

One example is Mena, where a criminal defendant challenges the federal ban on transferring an unregistered machinegun under the Second Amendment.  The petition in Mena, which was filed on February 5, argues that the Court should resolve doctrinal confusion over the "common use" test and that "[a]t least one of the relevant mechanisms clearly supports the notion that machineguns are now within 'common use.'"  Mena argues that the Court should grant certiorari to resolve broader methodological confusion about categorical type-of-weapon bans and hold his petition pending such direction.  It should be noted here that the Fifth Circuit summarily affirmed Mena's conviction, relying on circuit precedent that machineguns are not protected by the Second Amendment under Heller

The Mena petition identifies NAGR v. Naperville—where a Seventh Circuit panel upheld Illinois' assault weapons and large-capacity magazine bans in Novemberas one side of this doctrinal split.  A petition for certiorari was filed by the challengers in NAGR on February 12.  NAGR (then captioned Bevis v. Naperville) was the headline case in a number of challenges to Illinois' law consolidated before the Seventh Circuit.  The challengers in three of the other cases that were consolidated with NAGR also filed petitions for review on February 12: in Harrel v. RaoulHerrera v. Raoul, and Barnett v. Raoul.  Clement & Murphy represents the petitioners in Barnett—that firm's principals also represented the challengers to New York's concealed carry law in Bruen.  Generally speaking, the petitions attack the Seventh Circuit's decision for eschewing Bruen's historical analysis and improperly "resurrecting pre-Bruen caselaw."

Another major case in this area is Bianchi, a challenge to Maryland's assault weapons ban.  Bianchi v. Frosch went up to the Supreme Court prior to Bruen, was granted, vacated, and remanded, and was then re-argued before a Fourth Circuit panel in December 2022.  There were then no developments until January 2024, when the full appeals court issued an order stating that the case (now re-captioned Bianchi v. Brown) would be re-heard en banc.  It is now scheduled for oral argument before the en banc court on March 20.  On February 9, Bianchi petioned for certiorari before judgment with the Supreme Court.  The brief argues that, "[f]ollowing Bruen, the unconstitutionality of semiautomatic rifle bans is clearer than ever."  Citing the long delay and en banc process, Bianchi argues that "the behavior of the lower courts indicates that this Court’s intervention likely is necessary for [a] fundamental right to be vindicated."  

Also on February 9, during a hearing before Massachusetts District Judge F. Dennis Saylor, an attorney representing Smith & Wesson suggested that the defendant gun manufacturers in a civil case brought by the Mexican government implicating novel issues surrounding gun industry immunity under the Protection of Lawful Commerce in Arms Act, or PLCAA, would request Supreme Court review of the First Circuit's recent decision allowing the litigation to proceeed.  Mexico alleges that a number of U.S. gun manufacturers knowingly facilitate the trafficking of American-made firearms into Mexico and seeks to hold the companies liable for damages stemming from cartel gun violence.  On January 22, a three-judge panel of the First Circuit held in Estados Unidos Mexicanas v. Smith & Wesson that PLCAA does apply extraterritorially but that Mexico plausibly alleged claims that fall within the predicate exception to PLCAA.  Smith & Wesson's attorney asked the district judge to stay the case pending the filing of a cert petition, and Judge Saylor indicated that he would rule on the issue at a March 12 hearing in the case.  Any cert petition would have to be filed by mid-April.  The Supreme Court has never taken a PLCAA-exception case; the Court denied a petition for certiorari in Bushmaster v. Soto in 2019predicate-exception litigation stemming from the Sandy Hook mass shooting that ultimately resulted in a $73 million settlement

The government filed its reply in Cargill on February 16.  In addition to arguing that Cargill’s reading is contrary to the plain statutory language and the intent of the NFA, the government asserts that interpreting "machinegun" to exclude bump stocks "threatens to legalize a variety of devices that courts and ATF have long classified as machineguns."  Oral argument in Cargill is scheduled for next Wednesday, February 28 (for more background on the case and a preview of questions to expect at oral argument, see these two recent guest posts by Dru Stevenson). 

Petitions Granted and Argued or Pending Argument

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

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

 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

National Association for Gun Rights

v.

City of Naperville

And related challenges to Illionois' PICA

(23-877; 23-878; 23-879; 23-880)

7th Cir.

12-Feb-24

Second Amendment challenge to Illinois' ban on certain semiautomatic firearms and large-capacity magazines; "common use" test. 

Responses due 15-Mar-24

Bianchi

v.

Brown

(23-863 - petition for certiorari before judgment)

4th Cir. 

9-Feb-24

Second Amendment challenge to Maryland's ban on certain semiautomatic firearms; "common use" test. 

Response due 13-Mar-24

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

Walker

v.

United States

(23-6716)

9th Cir.

6-Feb-2024

Jury instruction regarding insterstate commerce element of 18 U.S.C. § 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms.

Response waived; Distributed for conference 1-Mar-24

Mena

v.

United States

(23-6689)

5th Cir. 

5-Feb-2024

Second Amendment challenge to 26 U.S.C. § 5861(e), which prohibits transferring an unregistered machinegun.

Response waived; Distributed for conference 1-Mar-24

Francis

v.

United States

(23-6687)

5th Cir.

2-Feb-24

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

Response waived; Distributed for conference 1-Mar-24 

Brown

v.

United States 

(22-10892)

5th Cir.

30-Jan-2024

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

Response due 4-Mar-24

Fulwiler

v.

United States

(23-6635)

5th Cir.

25-Jan-2024

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

Response waived; Distributed for conference 1-Mar-24

Cunningham

v.

United States

(23-6602)

8th Cir. 

25-Jan-2024

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

Response due 28-Feb-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, 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), which prohibits those convicted of felony offenses from possessing firearms.

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). which prohibits those convicted of felony offenses from possessing firearms.

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), which prohibits those convicted of felony offenses from possessing firearms.

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