SCOTUS Gun Watch - Week of 7/1/24
The Court's October 2023 term is now complete. The Justices issued their final decisions yesterday and also held their "clean up" conference, where they considered a number of outstanding Second Amendment petitions. The Court released an order list from that conference this morning.
As indicated below, the justices sent a number of Second Amendment cases—including almost all major 922(g) petitions it had been holding—back down to the lower courts for further consideration in light of Rahimi. The cases that were granted, vacated, and remanded include Range, Daniels, and Antonyuk. That's a somewhat unexpected development, given the lack of clarity in Rahimi about the constitutionality of various categorical group-based restrictions and the fact that the government had filed a supplemental brief in Range and other felon prohibitor challenges asking the Court to address the issue by "grant[ing] the petitions in Doss, Jackson, and either Range or Vincent." Range responded and argued that the Court should grant only in Range, in part because that "case involved an in-depth examination under Bruen by the en banc Third Circuit." Now, that case will go back to the Third Circuit—but it wouldn't be entirely suprising for the case to wind up back at the Supreme Court soon in the same exact posture.
The Court denied cert in NAGR, where the Seventh Circuit upheld Illinois' assault weapons and large-capacity magazine ban against Second Amendment challenge. Justice Alito noted a dissent from that denial, and Justice Thomas filed a separate statement. The denial seems to be due largely to the fact that the Seventh Circuit emphasized its decision was based on an incomplete factual record at the preliminary injunction stage. Justice Thomas noted that the Court has "never squarely addressed what types of weapons are 'Arms' protected by the Second Amendment" and wrote that he "hope[s the Court] will consider the important issues presented by these petitions after the cases reach final judgment."
The government filed its opening brief in VanDerStok, the administrative-law challenge to ATF's regulation of gun-assembly kits as firearms under the Gun Control Act, last Tuesday. The government focused its argument on statutory language encompassing devices that can be "converted" to firearms—for example, the brief asserts that ATF "correctly recognize[d] that a parts kit that can readily be converted into a functional firearm is a 'firearm' regulated by the Act." Respondent's brief is due on August 13.
Petitions Granted and Pending Argument
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(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. |
Respondent's brief due 13-Aug-24 |
Petitions Pending
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(23-7776) |
10th Cir. |
18-Jun-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 due 22-July-24 |
|
(23-7804) |
5th Cir. |
14-Jun-24 |
Post-Bruen constitutionality of § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Response due 25-July-24 |
|
(23-7693) |
5th Cir. |
10-June-24 |
Second Amendment and Commerce Clause challenge to § 18 U.S.C. 922(n), which prohibits those under felony indictment from receiving firearms. |
Distributed for conference 30-Sep-24 |
|
(23-7692) |
5th Cir. |
10-June-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. |
Distributed for conference 30-Sep-24 |
|
(23-7689) |
5th Cir. |
7-June-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; whether to hold pending Rahimi. |
Distributed for conference 30-Sep-24 |
|
(23-7688) |
5th Cir. |
7-June-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Distributed for conference 30-Sep-24 |
|
(23-7670) |
5th Cir. |
4-June-24 |
Whether Rahimi potentially impacts plain-error analysis for unpreserved 922(g)(1) challenge. |
Distributed for conference 30-Sep-24 |
|
(23-7662) |
5th Cir. |
3-June-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. |
Distributed for conference 30-Sep-24 |
|
(23-7653) |
5th Cir. |
3-June-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; whether to hold pending Rahimi. |
Distributed for conference 30-Sep-24 |
|
(23-1257) |
5th Cir. |
29-May-24 |
Whether the Fourth Amendment permits police to shoot a fleeing suspect who might be holding a gun but exhibits no other signs of dangerousness. |
Distributed for conference 30-Sep-24 |
|
(23-1225) |
4th Cir. |
17-May-24 |
First Amendment challenge to local ordinance requiring gun stores to display and distribute suicide-prevention and conflict-resolution literature. |
Distributed for conference 30-Sep-24 |
|
(23-7554) |
5th Cir. |
16-May-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Distributed for conference 30-Sep-24 |
|
(23-7501) |
10th Cir. |
15-May-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Response due 17-July-24 |
|
(23-7517) |
Supreme Ct. of Hawaii |
14-May-24 |
Whether Bruen governs when a state's criminal prosecution for |
Distributed for conference 30-Sep-24 |
|
(23-7293) |
10th Cir. |
19-Apr-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 due 24-July-24 |
|
(23-1141) |
1st Cir. |
18-Apr-24 |
Scope of proximate cause for claims brought under PLCAA exception by the Mexican government based on the production and sale of firearms in the United States; Scope of aiding and abetting liability with regard to the same claims. |
Response due 3-July-24 |
Petitions Disposed
|
Case |
Ct. Below |
Pet. Filed |
Implicated Law/Issue |
Status |
|
(23-6842) |
8th Cir. |
23-Feb-24 |
Whether 18 U.S.C. § 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms, is invariably constitutional both facially and as-applied to any defendant, no matter the case-specific circumstances. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
National Association for Gun Rights And related challenges to Illionois' PICA |
7th Cir. |
12-Feb-24 |
Second Amendment challenge to Illinois' ban on certain semiautomatic firearms and large-capacity magazines; "common use" test. |
Cert Denied 2-July-24 (separate statement by Justice Thomas) |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Granted, vacated, and remanded in light of Rahimi 2-July-24 |
|
(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. |
Cert Denied 24-June-24 |
|
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. |
Granted, vacated, and remanded in light of Cargill 24-June-24 |
|
(23-886) |
Mass. Supreme Ct. |
14-Feb-24 |
Application of double jeopardy rules to attempted re-trial for unlicensed gun possession given intervening change in law due to Bruen; whether non-licensure is an essential element of the crime or proof of licensure is an affirmative defense. |
Cert Denied 24-Jun-24 |
|
(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. |
Decided 21-Jun-24 |
|
(23-995) |
2d Cir. |
7-Mar-24 |
Second Amendment challenge to NY commercial regulations applying to federally-licensed firearm dealers. |
Cert Denied 17-June-24 |
|
(23-7231) |
Oklahoma Ct. of Criminal App. |
25-Jan-24 |
Ineffective assistance of counsel claim re failure to notify criminal defendant of potential loss of Second Amendment rights due to conviction for misdemeanour domestic violence offense. |
Cert Denied 17-Jun-24 |
|
(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. |
Decided 14-Jun-24 |
|
(23-7451) |
5th Cir. |
8-May-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. |
Cert Denied 10-June-24 |
|
(23-7421) |
5th Cir. |
6-May-24 |
Whether Rahimi potentially impacts plain-error analysis for unpreserved 922(g)(1) challenge. |
Cert Denied 10-June-24 |
|
(23-7419) |
5th Cir. |
6-May-24 |
Whether Rahimi potentially impacts plain-error analysis for unpreserved 922(g)(1) challenge. |
Cert Denied 10-June-24 |
|
(23-7402) |
5th Cir. |
3-May-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; whether to hold pending Rahimi. |
Cert Denied 10-June-24 |
|
(23-7401) |
5th Cir. |
3-May-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; whether to hold pending Rahimi. |
Cert Denied 10-June-24 |
|
(23-7433) |
8th Cir. |
1-Apr-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Cert Denied 10-June-24 |
|
(23-6521) |
Superior Court of New Jersey, Appellate Division |
16-Jan-24 |
Second Amendment challenge to NJ's pre-Bruen public-carry permitting law requiring a showing of heightened need; retroactivity of Bruen. |
Cert Denied 10-June-24 |
|
The National Rifle Association of America (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. |
Decided 30-May-24 |
|
(23-7305) |
5th Cir. |
23-Apr-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; whether to hold pending Rahimi. |
Cert Denied 28-May-24 |
|
(23-7280) |
5th Cir. |
19-Apr-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms; whether to hold pending Rahimi. |
Cert Denied 28-May-24 |
|
(23-7288) |
5th Cir. |
18-Apr-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Cert Denied 28-May-24 |
|
(23-7269) |
8th Cir. |
1-Feb-24 (docketed 19-Apr-24) |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms; Rehaif challenge to knowledge of prohibited status. |
Cert Denied 28-May-24 |
|
(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. |
Petition for certiorari before judgment denied 20-May-24 |
|
(23A870 - emergency application to vacate stay) |
2d Cir. |
26-Mar-24 (refiled 11-Apr-24) |
Second Amendment challenge to NYC "good moral character" requirement for long-gun licensing (motion to vacate Second Circuit's decision to stay district court injunction under Antonyuk) |
Application Denied 20-May-24 |
|
(23-7235) |
5th Cir. |
10-Apr-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; whether to hold pending Rahimi. |
Cert Denied 13-May-24 |
|
(23-7225) |
5th Cir. |
10-Apr-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. |
Cert Denied 13-May-24 |
|
(23-7229) |
5th Cir. |
8-Apr-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Cert Denied 13-May-24 |
|
(23-7181) |
5th Cir. |
5-Apr-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; whether to hold pending Rahimi. |
Cert Denied 13-May-24 |
|
(23-7179) |
5th Cir. |
5-Apr-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; whether to hold pending Rahimi. |
Cert Denied 13-May-24 |
|
(23-7160) |
5th Cir. |
3-Apr-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; whether to hold pending Rahimi. |
Cert Denied 13-May-24 |
|
(23-1018) |
2d Cir. |
11-Mar-24 |
Second Amendment challenge to NYC concealed carry application requirements. |
Cert Denied 13-May-24 |
|
(23-7125) |
5th Cir. |
27-Mar-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. |
Cert Denied 29-Apr-24 |
|
(23-7055) |
5th Cir. |
19-Mar-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; whether to hold pending Rahimi. |
Cert Denied 22-Apr-24 |
|
(23-7001) |
5th Cir. |
13-Mar-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; whether to hold pending Rahimi. |
Cert Denied 15-Apr-24 |
|
(23-6973) |
5th Cir. |
8-Mar-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; whether to hold pending Rahimi. |
Cert Denied 15-Apr-24 |
|
(23-6647) |
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. |
Cert Denied 15-Apr-24 |
|
(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. |
Cert Denied 15-Apr-24 |
|
(23-6850) |
5th Cir. |
23-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. |
Cert Denied 1-Apr-24 |
|
(23-921) |
8th Cir. |
9-Feb-24 |
Second Amendment challenge to NFA; pro se. |
Cert Denied 1-Apr-24 |
|
(23-6881) |
5th Cir. |
28-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. |
Cert Denied 25-Mar-24 |
|
(23-6869) |
5th Cir. |
27-Feb-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Cert Denied 25-Mar-24 |
|
(23-6793) |
5th Cir. |
16-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. |
Cert Denied 18-Mar-24 |
|
(23-6769) |
5th Cir. |
13-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. |
Cert Denied 18-Mar-24 |
|
(23-6750) |
11th Cir. |
12-Feb-24 |
Second Amendment challenge to § 18 U.S.C. 922(g)(1), which prohibits those convicted of felony offenses from possessing firearms. |
Cert Denied 18-Mar-24 |
|
(23-6754) |
9th Cir. |
9-Feb-24 |
Second Amendment challenge to § 2D1.1(b)(1) of the Sentencing Guidelines, an enhancement to the offense level that applies when “a dangerous weapon (including a firearm) was possessed" at the time of the offense. |
Cert Denied 18-Mar-24 |
|
(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. |
Cert Denied 4-Mar-24 |
|
(23-6689) |
5th Cir. |
5-Feb-2024 |
Second Amendment challenge to 26 U.S.C. § 5861(e), which prohibits transferring an unregistered machinegun. |
Cert Denied 4-Mar-24 |
|
(23-6687) |
5th Cir. |
2-Feb-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. |
Cert Denied 4-Mar-24 |
|
(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. |
Cert Denied 4-Mar-24 |
|
(23-526 - petition for certiorari before judgment) |
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 |
|
(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 |
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[Petitions resolved from 6/23/2022 through 12/31/2023 are omitted due to space constraints] |
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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 |