By Tanya Metaksa
What’s New—Snope v. Brown and Ocean State Tactical v. Rhode Island rescheduled for May 2; Smith & Wesson v. Mexico: Case 22-1823: To be decided within the next two months; Update on New York v. Arm or Ally: Case No. 24-773(L); United States v. Justin Bryce Brown: Case 25-60102: a machine gun case.
SCOTUS
conferences through the end of the term
Snope v. Brown and Ocean State Tactical v. Rhode Island have been postponed again to May 2 conference date.
For the rest of the 2024-2025 term, the scheduled conference dates are May 2, 14, 21, 28, and June 4, 11, 18, and 25.
Awaiting SCOTUS decision
Smith & Wesson v. Mexico: Case 22-1823: This case was granted certiorari on Oct. 5, 2024, and was argued on March 4, 2025. We are looking forward to a decision in the next month or so. Just recently, Stephen P. Halbrook wrote about this case in the Reason.com Volokh Conspiracy post. Here is a summary of Halbook’s article.
“Mexico claims that U.S. gunmakers’ marketing and distribution practices foreseeably lead to illegal firearm trafficking, fueling cartel violence. The Protection of Lawful Commerce in Arms Act (PLCAA) shields manufacturers from liability for misuse of their products, but Mexico invokes an exception for violations of predicate statutes. The First Circuit found Mexico’s claims plausible, rejecting dismissal under PLCAA.
“Halbrook critiques the ruling, arguing it misapplies proximate cause. He emphasizes that liability requires a direct link between the defendant’s actions and the harm, not merely foreseeable consequences. Mexico’s theory—that lawful U.S. sales indirectly arm cartels through smuggling—lacks this directness, as multiple intervening actors (e.g., straw buyers, smugglers) break the causal chain. Halbrook cites cases like City of Philadelphia v. Beretta and Bray v. Taurus Int’l, where courts dismissed similar claims for lacking proximate cause, reinforcing that manufacturers aren’t liable for third-party criminal acts.
“The post highlights a circuit split, as other courts have stricter proximate cause standards, creating legal inconsistency. Halbrook urges the Supreme Court to clarify that lawful firearm sales don’t proximately cause overseas criminal violence, aligning with Second Amendment protections and PLCAA’s intent. Resolving this, he argues, would prevent foreign entities from undermining U.S. gun rights through litigation, ensuring manufacturers aren’t held liable for distant, attenuated harms.”
Background: The lead paragraph on the March 4, SCOTUS Blog began their report projections that Mexico would lose the case:
“The Supreme Court on Tuesday signaled that it was likely to shut down a lawsuit brought by the Mexican government, seeking to hold seven major U.S. gun makers and a gun wholesaler responsible for violence committed by Mexican drug cartels with U.S.-made weapons. A majority of the court appeared to agree with the gun makers that the Mexican government’s suit is barred by a 2005 law intended to shield the gun industry from lawsuits in U.S. courts for the misuse of guns by others.”
On the other hand, Mark W. Smith, a constitutional attorney and Second Amendment advocate, was more measured in his analysis on his YouTube channel, The Four Boxes Diner. Smith expresses concern that the victory may be narrow, focusing solely on federal law interpretation rather than a broader ruling on “proximate cause.” He concludes that while the gun industry will likely prevail, the narrow ruling anticipated will leave the door open for future state-level lawsuits, necessitating further legal battles to secure broader Second Amendment protections.
The decision should be known by the end of June, if not sooner.
Lower Court Case # 22-1823: On Oct. 4, 2024, Certiorari was granted in this case, and it will be decided by the end of June 2025.
The questions presented are:
1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.
Trump Administration and the Second Amendment Task Force
President Trump delivered a video message to the NRA annual meeting, celebrating the organization’s 50th anniversary of legislative action. Trump emphasized his administration’s rapid reversal of Biden-era gun control policies, including ending the ATF’s “zero tolerance” policy on gun dealers for minor paperwork errors and rolling back the pistol brace rule. He also announced the formation of a Second Amendment Task Force, led by Attorney General Pam Bondi, to actively defend and advance gun rights, rather than resist gun control.
In a YouTube.com video from @thefourboxesdiner, attorney Mark Smith discussed Attorney General Pam Bondi’s leadership role in the new Task Force and the letter she wrote thanking 26 state attorneys general for supporting Second Amendment rights. Additionally, Smith reviewed an NBC News article on Harmy (Harmeet) Dhillon, the new head of the DOJ’s Civil Rights Division. Dhillon is shifting the Division’s priorities to support Second Amendment rights, with the first order of business being to investigate the issuance of permits by localities such as Los Angeles.
Restoring Second Amendment Rights
For the first time since 1992, the Department of Justice (DOJ), led by Attorney General Bondi, published on April 29 a list in the Federal Register of Americans whose firearm rights have been reinstated under 18 USC 925C. This was made possible by shifting the authority to restore rights from the ATF (which Congress had blocked from using funds for this purpose) to the Attorney General, thereby circumventing longstanding budget restrictions. For a person who desires restoration, the applicant must demonstrate that they are not dangerous to public safety and that restoring their rights is not contrary to public interest. This action is seen as a precedent-setting first step, potentially opening the door for hundreds of thousands to regain their rights. It is important to note that this move is a positive step in advancing, not just preserving, the Second Amendment. For those who believe their Second Amendment rights could be restored, it is important to consult legal counsel.
Follow-up on last week’s thought on the Second Amendment
Last week, I noted that “President Trump is not a gun owner. His son, Don Jr., is the gun owner in the family. Don Jr goes hunting and enjoys shooting as a sport.” Well, lo and behold, the Wall Street Journal on April 28 had an article entitled “Bear Hunts and McDonald’s: A New Breed of MAGA Lobbyists Upends Washington.” Since the article is behind a paywall, I am summarizing it here. Ches McDowell, a North Carolina lobbyist with no prior Washington experience, is gaining influence through his connections with Donald Trump Jr. and his unique background as a government skeptic and hunter. His firm, Checkmate Government Relations, is set to open an office in Washington, D.C., as he navigates the new political landscape shaped by the Trump administration.
- McDowell has a long-standing friendship with Donald Trump Jr., which helped him secure influential connections.
- He is leveraging his unconventional background, including hunting and making baby food from natural ingredients, to position himself as a power broker.
- His firm is opening an office on Pennsylvania Avenue, decorated with hunting trophies and unique furnishings.
- McDowell has registered to lobby for major clients, including Novo Nordisk and Eli Lilly, shortly after the inauguration.
Circuit Court
Last week’s Judicial Report included a long description of the Trump Department of Justice (DOJ) and its position on Second Amendment cases that are being appealed to the Circuit Courts after having been adjudicated at the District Court level. Some new information that should be of interest in the case of New York v. Arm or Ally has become available.
New York v. Arm or Ally: Case No. 24-773(L): This case was brought by New York Attorney General against out-of-state companies, claiming they violated federal law by selling these products without a federal firearms license (FFL), with the Biden administration’s Department of Justice (DOJ) supporting her efforts based on the federal government’s lastest position that these kits constituted firearms under the Gun Control Act. After the circuit court ruled against New York, they appealed to the US Court of Appeals for the Second Circuit. According to Attorney Mark W. Smith, @thefourboxesdiner on youtube.com, reports:
“Upon review by Trump’s newly established Second Amendment Task Force and after public outcry, the Trump DOJ quickly withdrew the previous brief. The administration clarified it no longer supported the Biden position, stating that the Supreme Court’s recent Vanderstock decision should not be used to retroactively punish manufacturers for conduct the ATF had previously deemed lawful. Furthermore, the Trump DOJ announced it would withdraw entirely from the litigation, ceasing federal support for New York’s anti-gun lawsuits.”
United States v. Justin Bryce Brown: Case 25-60102: On April 24, Patrick A. Lemon, Acting United States Attorney, Southern District of Mississippi, filed the federal government’s brief supporting 18 U.S.C. § 922(o) in the government’s appeal in this case. Lemon did not request oral argument. However, many in the Second Amendment community ask, “Why is the US Attorney representing the Trump Administration backing a position that would have been promoted by the Biden Administration and quoting Bloomberg’s Everytown propaganda publication, The Trace? Firearms Policy Coalition is taking the lead for Justin Bryce Brown.
Background: United States v. Justin Bryce Brown: Case 3:23-cr-00123-CWR-ASH: The government charged Justin Bryce Brown with knowingly possessing a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). Mr. Brown now asks the Court to dismiss the indictment. Because he has never been convicted of a felony, he argues that the Second Amendment protects him from criminal prosecution under these statutes. In other words, he is bringing an “as-applied” challenge to his prosecution. On January 29, Judge Carlton W. Reeves in the U.S. District Court for the Southern District of Mississippi dismissed the indictment. Brown, a non-felon, argued that the Second Amendment protected his possession, raising an as-applied challenge post-New York State Rifle & Pistol Ass’n v. Bruen (2022), which requires the government to prove that firearm restrictions align with historical tradition.
The government claimed machineguns are “dangerous and unusual,” citing historical bans on offensive or terror-inducing weapons, like the 1328 Statute of Northampton. However, the court found these inapplicable, as Brown possessed the machine gun in his home without threatening public peace. While acknowledging machineguns’ dangerousness, the court noted that Bruen requires both dangerousness and unusualness. Citing United States v. Morgan (2024), the court accepted that 740,000 machineguns are lawfully possessed, deeming them common, not unusual. The government’s reliance on Hollis v. Lynch (2016) was rejected, as Bruen rendered it obsolete, and its data (175,977 machine guns) was outdated.
The court criticized Bruen’s historical approach as confusing and questioned its reliability, noting historians’ skepticism about judicial interpretations of history. Nonetheless, applying Bruen, the court found the government failed to meet its burden, dismissed the case, and allowed future § 922(o) challenges.
Let’s hope that this case’s demise is as quick as that in New York v. Ally above.
District Court
Massachusetts: First Circuit
Ft. Devens Rifle & Pistol Club, Inc. v. U.S. Army Garrison Fort Devens: The Fort Devens Rifle & Pistol Club, primarily composed of U.S. military veterans and affiliated with the Civilian Marksmanship Program, challenged the U.S. Army’s imposition of a $250 minimum fee per outing for range access starting in 2021, citing a 2020 Department of Defense memo limiting non-reimbursable support to non-DoD entities. The club argued the fee was excessive and arbitrary, violating the federal statute that mandates reasonable access to military ranges for civilian use.
On March 20, Judge Myong J. Joun of the U.S. District Court for the District of Massachusetts ruled in favor of the civilian gun club, thereby enforcing a federal range access statute (10 U.S.C. § 7409). He granted the club’s motion for summary judgment, ruling that the Army must provide range access at no charge until it can justify a reasonable fee with a clear breakdown of actual costs.
This decision marks the first published enforcement of 10 U.S.C. § 7409, setting a precedent that could enhance civilian access to federally funded ranges nationwide. The case underscores the importance of protecting civilian Second Amendment rights against restrictive military or governmental policies.
