blog/show

SCOTUS Gun Watch - Week of 2/26/24

The Court will hear oral argument in Garland v. Cargill on Wednesday morning at 10 am.  Cargill is the only case on the calendar for Wednesday.  For more background on the issues in the case, which involves an administrative-law challenge to the ATF's regulatory ban on bump stock devices following the 2017 Las Vegas mass shooting, see these two recent guest posts by Dru Stevenson.

New York filed its response brief in Vullo on February 20.  The state argues that the Supreme Court lacks jurisdiction to decide the First Amendment question on which it granted certiorari because such a decision "cannot affect the Second Circuit's conclusion that Vullo is entitled to qualified immunity from damages, nor could it result in any prospective relief."  On the merits, the state argues that the NRA failed to allege government conduct that could form the basis for a First Amendment violation and that, even if the Court reaches the question, New York's regulatory guidance was not coercive because it "did not reference or threaten adverse consequences."  Finally, New York argues that recognizing a First Amendment claim here will "inhibit public officials from performing their duties . . . and allow entities to insulate themselves from the consequences of their unlawful conduct by engaging in controversial speech." 

On February 21, the United States Solicitor General filed a motion for leave to participate in oral argument and for a divided oral argument in Vullo.  The SG's motion asserts "a substantial interest in the Court’s resolution of the question presented because the First Amendment analysis that the Court adopts in this case may have ramifications for federal agencies and officials."  Under the government's proposal the time alloted to the federal government would come from the NRA's portion, with "20 minutes for petitioner, 10 minutes for the United States, and 30 minutes for respondent"—the United States previously filed a brief in support of neither party arguing that the NRA likely does have a plausible First Amendment claim in the case. 

On February 20, the plaintiffs in the Antonyuk litigation (a challenge to New York's post-Bruen public carry law that we've covered extensively here on the blog), filed a petition for certiorari asking the Supreme Court to review the Second Circuit's November decision in the case.  The petition seeks review of two primary questions: (1) the proper historical time period for the Bruen analysis—the petitioners argue the appropriate reference point is 1791 and attack "the Second Circuit’s singular focus on mid-to-late 19th-century history"; and (2) whether a "good moral character" permitting requirement conflicts with Bruen

Several 922(g) petitions, which are likely to be held pending Rahimi, will be considered at the Court's next conference on March 1.  The Court is set to issue an orders list from that conference on Monday, March 4. 

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

Ivan Antonyuk

v.

Steven James

(23-910)

2d Cir.

20-Feb-24

The proper historical reference point for Bruen's analogical inquiry; whether "good moral character" public carry permitting requirements violate the Second Amendment. 

Response due 25-Mar-24

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 or 18-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 29-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, 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.

Distributed for conference 15-Mar-24

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

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