1

Bump Stocks Remain a Hot Topic in the Federal Courts

A three judge panel of the Fifth Circuit upheld the federal bump stock ban yesterday. In a post last Wednesday, I noted how the Sixth Circuit en banc had split evenly on the legality of the bump stock ban, leaving in place the trial court’s decision upholding the regulation. The question doesn’t appear to be going away, with several circuits having weighed in during en banc sittings. And, as we’ve highlighted on the blog, there’s currently a cert petition on the topic pending with the Supreme Court. 

The Fifth Circuit’s opinion sidesteps some of the harder questions the case posed in other circuits. For example, one question raised in other contexts is whether an agency is entitled to Chevron deference when a statute carries a criminal penalty. Another is whether an agency may waive any entitlement to Chevron deference during the litigation. But those questions arise when a court considers a statute to be ambiguous and therefore affords (or not) the agency charged with implementing the statute some deference as it construes the statute. Here, the panel found that DOJ’s bump stock ban constituted the best reading of the statute, making any question of deference unnecessary. 

It’s not clear whether the challengers will seek en banc review in the Fifth Circuit or head straight to the Supreme Court, but it’s clear that if the Court wants to tackle this issue, it has a lot of cases to choose from. Here’s how the Fifth Circuit (helpfully) described the active litigation:

Three other circuits have also rejected challenges to the Bump Stock Rule. In April 2019, the D.C. Circuit denied a motion for a preliminary injunction against the Rule, concluding that the statutory definition of “machinegun” is ambiguous and that the Rule is entitled to Chevron deference. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam). One judge dissented, arguing that the Rule contradicts the statute’s plain language. Id. at 35 (Henderson, J., dissenting). The Supreme Court denied certiorari, 140 S. Ct. 789 (2020), though Justice Gorsuch issued a statement arguing that the Rule is not entitled to Chevron deference. Id. at 789-91 (Gorsuch, J., statement regarding denial of certiorari). In May 2020, the Tenth Circuit denied another motion to preliminarily enjoin the Rule, for similar reasons as the D.C. Circuit. Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020). Four months later, the Tenth Circuit vacated that opinion and granted a rehearing en banc, 973 F.3d 1151 (10th Cir. 2020) (en banc), but it subsequently reversed course, vacating the order granting rehearing en banc and reinstating the original panel opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021) (en banc). Five judges dissented from the decision to vacate the en banc order. Id. at 891 (Tymkovich, C.J. dissenting, joined by Hartz, Holmes, Eid, and Carson, JJ.). The plaintiff in that case has filed a petition for certiorari in the Supreme Court. Petition for Writ of Certiorari, Aposhian v. Garland, No. 21-159 (U.S. Aug. 4, 2021). Finally, in March 2021, a Sixth Circuit panel granted a preliminary injunction against the Rule, holding that the Rule is not entitled to Chevron deference and is not the best interpretation of the NFA. Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 450 (6th Cir. 2021). However, the Sixth Circuit vacated that decision, 2 F.4th 576 (6th Cir. 2021) (en banc), and an evenly divided en banc court affirmed the district court’s judgment upholding the Rule. No. 19-1298, — F.4th —-, 2021 WL 5755300 (6th Cir. Dec. 3, 2021) (en banc); see Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 826 (W.D. Mich. 2019).




SCOTUS Gun Watch – Week of 12/13/2021

The Court had been scheduled to hear one of the pending challenges to the federal bump stock ban at its conference last Friday, but it rescheduled that case to a later date. In the meantime, no new cert petitions have been filed, and I expect we are in for a quiet period from the Court.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

Cert Granted; argued on Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

had been distributed for 10-Dec-2021 conference (now listed as rescheduled)

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

reply due @ 29-Dec-2021

(response requested by Court)

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

reply due 2-Jan-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

 




Scholarship Highlight: Felons, Bump Stocks, and More

Here are some new and interesting firearms law and adjacent pieces of scholarship published recently, including some really insightful student notes and an especially timely and in-depth look at the bump stock ban.

From the Introduction:

If a law professor dreamed of a case that could touch on the most substantial issues taught in administrative law classes, he would dream of Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. The case runs the gauntlet, featuring issues of statutory construction and deference, the procedural requirements under the Administrative Procedures Act (“APA”), the Appointments Clause and statutory conflicts between vacancy statutes, standing, exceptions to Chevron deference including questions of waiver, and allusions to many more textbook issues. Because some of these issues are less settled than others, a companion case–Aposhian v. Barr, features some alternative outcomes such as the lower court characterization of the agency action at issue as interpretive, in opposition to the preliminary findings in Guedes, where the court held the Bump-Stock Rule was legislative. Both cases reviewed challenges to a final rule published by the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). When the Supreme Court denied a writ of certiorari for injunctive relief in Guedes, one Supreme Court Justice issued a statement raising more administrative law questions and challenging some administrative law presumptions that, if borne out, could further unsettle substantial administrative law issues.

At the heart of the dream case lies a dispute over the definition of “machine gun” and a rule promulgated by the agency to clarify the meaning of two terms contained in the statutory definition that are not otherwise defined. This article attempts to address all of the major administrative law issues raised in Guedes and their potential outcomes by walking through a Chevron analysis, starting with (1) whether the Bump-Stock Rule satisfies Chevron step zero, then looking at (2) whether any exceptions prevent the application of Chevron, and ending with (3) whether the Bump-Stock Rule satisfies the test in Chevron, thus warranting Chevron deference. Under existing precedent, Chevron deference applies to the Bump-Stock Rule. This article tries, however, to anticipate the nuanced (or watershed) deviations at each stage of the analytical process that present themselves to the Supreme Court if either case (or both) come before the Court on their merits.

From the Abstract:

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to the Civil Rights Movement. Next, Part II outlines the ways different circuits have interpreted § 924(c), demonstrating how those interpretations disadvantage Black defendants. Finally, Part III puts forth two proposals for reform: interpreting § 924(c) more narrowly, or simply removing the language at issue from the GCA. These reforms would reduce racial disparities in the enforcement of § 924(c). They would also reaffirm the right of Black Americans to keep and bear arms for self-defense.

From the Abstract:

The scope of government restrictions on the sale, possession, and use of firearms is currently one of the most hotly contested political issues facing the United States. Opponents of gun control legislation argue that stringent government restrictions on firearms violate the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed.” In contrast, proponents of gun control legislation argue that vigorous restrictions on firearms are essential to maintain public safety and curtail gun violence.

Despite being at the forefront of political debate, the Supreme Court speaks infrequently on the scope of the Second Amendment, having only published three Second Amendment opinions. Because of the Court’s silence on the scope of the Second Amendment, the circuit courts of appeals have struggled with Second Amendment issues.

One such Second Amendment issue that has confounded the circuit courts of appeals is the validity of as-applied challenges to 18 U.S.C. § 922(g)(1), the federal law that makes it unlawful for persons convicted of a felony to possess, purchase, or sell a firearm. Every circuit court has  upheld 18 U.S.C. § 922(g)(1) on its face. A circuit split, however, continues to persist on the issue of whether a convicted felon can challenge the law as unconstitutional when applied to the individual’s specific circumstances.

This circuit split has led to inconsistent application of § 922(g)(1). Because the circuit split surrounding § 922(g)(1) leads to inconsistent application of the felon-in-possession prohibition, as-applied challenges should not be entertained. Not only is this consistent with the Supreme Court’s Second Amendment jurisprudence, but as-applied challenges should also always fail the two-step analytical framework used by most circuits. Furthermore, by not entertaining as-applied challenges, 18 U.S.C. § 922(g)(1) will be applied consistently and fairly across the United States.

From the Abstract:

Federal circuit courts of appeal often disagree about how to interpret the United States Sentencing Guidelines. One contentious guideline is the physical restraint sentencing enhancement. This enhancement increases the sentence of a defendant who physically restrained a victim during a crime. Circuit courts disagree about whether to apply this enhancement to a defendant who points a gun at a victim and tells that victim not to move. Four circuit courts interpret the physical restraint enhancement narrowly and only apply it when a defendant does something highly similar to tying or locking up a victim. Three circuits interpret the enhancement very broadly and uphold the enhancement’s imposition on defendants who do no more than point a gun and instruct a victim not to move. Three other circuits interpret the enhancement broadly but have not explicitly ruled on whether it applies to a defendant who brandishes a firearm and issues a threat. Two circuits take an approach between the other circuits. This Note argues that the text of the enhancement, the relevant commentary in the Guidelines, existing sentencing options, and the American judicial system’s preference for liberty require a narrow interpretation of the physical restraint enhancement. Courts should only apply the enhancement when a defendant restrains a victim by applying force that touches the victim or by confining the victim in a space that appears locked. Regardless of which interpretation is currently correct, the U.S. Sentencing Commission should clarify this issue.




Bump Stock Ban Heading for the Supreme Court (Again)

As I mentioned earlier this week, the en banc Sixth Circuit failed to reach consensus on the legality of the Trump Administration’s ban on bump stock devices, which convert semi-automatic firearms into weapons that can approximate the rate of fire of an automatic firearm. (If you’re unfamiliar with the operation of bump stocks, I’ve found this YouTube video illustrating one helpful.) In Gun Owners of America v. Garland, the full court of appeals split evenly, 8-8, on the regulation’s validity and therefore the lower court decision upholding the law was affirmed. 

Key to the case, as administrative law scholar Jonathan Adler explained, are questions that often bedevil courts in the context of agency regulations: whether the regulation properly interprets the statutory provision it relies on and whether and when to defer to the agency’s views on the best interpretation. Here, the regulation re-interprets what qualifies as a machinegun under federal law, now including bump stocks in that definition. Because that federal law carries criminal penalties, some judges have argued that that Chevron deference–the deference courts generally afford an agency interpreting an ambiguous federal statute–does not apply at all. 

The Supreme Court was schedule to consider another case addressing the bump stock issue–this one from the Tenth Circuit–at its conference this Friday. Now, there is simply a notation on the docket saying “rescheduled.” With the GOA case coming down this week, it may put more pressure on the Court to resolve the issue once and for all. 




SCOTUS Gun Watch – Week of 12/6/2021

A few days ago, in Gun Owners of America v. Garland, the Sixth Circuit en banc split evenly over the legality of the Trump Administration’s ban on bump stocks. That split leaves the district court decision upholding the ban in effect. Gun Owners of America has already said it plans to seek Supreme Court review, so that case will soon be a petition to watch. Other than that, we’re still waiting on Bruen

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

Cert Granted; argued on Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

distributed for 10-Dec-2021 conference

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

reply due @ 29-Dec-2021

(response requested by Court)

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

reply due 2-Jan-2022

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

 




Center Roundtable on Race and Guns in America

In mid-November, the Center hosted a roundtable discussion on Race and Guns in America. The conversation addressed difficult and timely issues surrounding issues of policing, public carry, vigilante actors, and self-defense. 

In January, we will be publishing the essays from the participants that came out of the event. From the discussion, it is clear those essays will be wide-ranging and explore the issue from varying perspectives. The participants at the event are below. 

  • Patrick Charles (USSOCOM)
  • Kami Chavis (Wake Forest)
  • Margareth Etienne (Illinois)
  • Pratheepan Gulasekaram (Santa Clara)
  • Daniel Harawa (Washington University-St. Louis)
  • Lindsay Livingston (Bowdoin)
  • Dave Olson (Loyola Chicago)
  • Gregory Parks (Wake Forest)
  • Brennan Rivas (Newberry Library)
  • Angela Riley (UCLA)

Nicholas Johnson (Fordham) was originally slated to attend, but it turned out he was unable to. 

Stay tuned for the essays next month!




En Banc Ninth Circuit Upholds California’s Large-Capacity Magazine Ban

In a major decision issued yesterday, the en banc Ninth Circuit upheld California’s ban on large-capacity magazines. By a 7-4 vote in Duncan v. Bonta, the court ruled that intermediate scrutiny applied to California’s law and that the provision was a reasonable fit with the government’s goal of preventing gun violence. I’ve previously written about the district court decision striking down the ban here and the original appellate panel affirming that decision here and here. The Supreme Court is already holding one case concerning large-capacity magazines, and Duncan may increase the chances the Court decides to hear that case.

We’ll be writing more about the case, and especially the interesting back-and-forth over the merits of the Two Part Framework vs. the Text, History, and Tradition test, but for now here is the Ninth Circuit’s description of its holding in the case:

[W]e hold:

(1) Under the Second Amendment, intermediate scrutiny applies, and section 32310 is a reasonable fit for the important government interest of reducing gun violence. The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saves lives. About three-quarters of mass shooters possess their weapons and large-capacity magazines lawfully. In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.

(2) Section 32310 does not, on its face, effect a taking. The government acquires nothing by virtue of the limitation on the capacity of magazines, and because owners may modify or sell their nonconforming magazines, the law does not deprive owners of all economic use.

(3) Plaintiffs’ due process claim essentially restates the takings claim, and it fails for the same reasons.




SCOTUS Gun Watch – Week of 11/29/2021

Next week, as the Court returns from break, it will hear argument in a consequential abortion case. That marks another in a term of high-profile cases touching on many contentious political issues. That larger context might very well influence how the Court decides Bruen–or at least the breadth or narrowness of the resulting opinion. We’ll likely be waiting for the decision to come down for another few months and in the meantime we’ll be watching for other Second Amendment cert petitions. For now, it’s been fairly quiet on that front. 

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

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

Cert Granted; argued on Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

distributed for 10-Dec-2021 conference

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

response due 29-Nov-2021

(response requested by Court)

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

response due 6-Dec-2021

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

 




Scholarship Highlight: New Work on Corpus Linguistics and on Bruen

In the past few weeks, there’s been a few new pieces of interesting firearms law scholarship out. One focuses on the challenge to Heller from the corpus linguistics data unavailable at the time of the decision. The other argues that the historical record supports New York’s law under review in Bruen.

From the Abstract:

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right.

Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.

We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.

Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

From the Introduction (footnotes omitted):

…There is good reason for concern that the Court in Bruen could place these and other demonstrably effective policy measures at risk. Now, three Trump nominees join with three Justices from the 5-4 majority in Heller. Do the math.

But the gun lobby should not start shooting off their celebratory gunfire just yet. Heller, and the historical traditions on which it relies, support upholding New York’s law, and other longstanding gun laws. And Heller, intentionally or not, tracked what many Americans believe–that they have some right to firearms, but restrictions are generally allowed. Indeed, more sweeping conceptions of the Second Amendment are at odds with most Americans’ views. Limiting Heller to its narrow holding might therefore hit the political sweet spot.

This Article argues that preserving Americans’ authority to enact strong gun laws is consistent with Heller and longstanding tradition. And Heller’s historical and doctrinal shortcomings make it far too shaky a foundation to expand upon.

 




Center’s March 2022 Symposium with Harvard Law Review

We are excited to announce our next symposium will be hosted at Harvard Law School on March 25, 2022 in coordination with the Harvard Law Review. The theme is Guns, Violence, and Democracy. The events of the past several years—including pandemic-produced uncertainty and economic instability, antiracism protests, and assaults on free and fair elections—have confirmed both the importance and the fragility of democratic institutions. The symposium will discuss the ways that violence shapes U.S. democracy, with an emphasis on the intersection between firearms and issues like voting, public protest, policing, race and privilege. We plan to address some of the theoretical, doctrinal, historical, and policy challenges at the center of this critical debate by drawing together scholars of diverse methodologies and perspectives.

Below are the panels, participants, and topics. The essays produced as part of the symposium will be published next summer in the Harvard Law Review Forum.

Panel One: Guns and Democratic Governance

More than 40,000 people were killed with guns last year and tens of thousands more were injured. But guns implicate law beyond those situations when a trigger is pulled. Do armed groups have a First Amendment right to peaceably assemble? What legal authority do localities have to restrict armed gatherings? How does this authority extend to polling locations, where gun-rights activists have sought the right to carry their weapons? How do guns fit in a democratic society? This panel will discuss issues related to how guns affect democratic institutions.

Panelists: Franita Tolson (USC); Jeff Fagan (Columbia); Reva Siegel (Yale) and Joseph Blocher (Duke)

Panel Two: Guns and Policing

The role and function of policing were front and center in the widespread antiracism protests last summer. As many commentators have noted, police firepower plays a key role in incidents of police violence and in the broader role that law enforcement plays in maintaining order. Government officials have not always played this role in American history, and many states today still allow private citizens to assume policing functions. Debates about stand-your-ground-laws and laws empowering citizens to make arrests, and prosecutions when death results, highlight how central guns are to this function. This panel will discuss the significance of firearms to public and private policing.

Panelists: Aziz Huq (Chicago); Eric Ruben (SMU); Adam Winkler (UCLA)

Panel Three: Race, Gender, and Privilege

Guns and gun violence are largely racialized and gendered phenomena in the United States today and throughout the country’s history. The Second Amendment and broad statutory gun rights apply in race and gender neutral terms, but that is not always how these rights work in practice. This panel will discuss the race, gender, and privilege perspective on the place of guns in American society.

Panelists: Bertrall Ross (UVA); Leila Sadat (Washington University-St. Louis); Jake Charles and Darrell Miller (Duke)

Panel Four: Guns & Advocacy

Some of the amicus briefs filed in Bruen—including a prominent one from Black public defenders—highlighted the ways in which the enforcement of gun laws harms marginalized groups and argued that, in essence, racial justice required the Court to deem New York’s licensing scheme unconstitutional. Others defending New York’s law argued that further deregulation of guns would exacerbate existing racial inequalities. This panel will feature some of the participants in this broader debate about advocacy regarding gun rights and regulation.

Possible panelists: Ron Sullivan (Harvard); Elie Mystal (The Nation); Julia Jenkins (public defender)