By Tanya Metaksa
What’s New—SCOTUS: Conferences through the end of the 2024-2025 term June 18, and 25; Question of 18 U.S.C § 922(g)(1): Melynda Vincent v. Pamela Bondi; Barnett v. Raoul; Case No. 24-3060; Zherka v. Garland: Case No. 22-1108; Several Second Amendment cases involving felon-in-possession charges are before the Supreme Court of the United States (SCOTUS) for certiorari.
Question of 18 U.S.C § 922(g)(1)
Certiorari to SCOTUS
SCOTUS
Melynda Vincent v. Pamela Bondi; Case No. 24-1155: On June 11, 2025, The National Rifle Association (NRA), The Second Amendment Foundation. The Firearms Policy Coalition and The FPC Action Foundation filed an amicus petition for Writ of Certiorari.
“There is no tradition of disarming peaceable people. Historically, nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms. Indeed, some laws expressly allowed or even required them to keep and bear arms.
“Certiorari should be granted to establish that the Second Amendment forbids the disarmament of peaceable Americans.”
Background: The District Court upheld the prosecutor’s application of 18 U.S.C § 922(g)(1) against Ms. Vincent. Then the Circuit Court stayed proceedings until SCOTUS decided Bruen. Instead of applying Bruen’s historical analysis to this case, the Tenth Circuit upheld the District Court’s judgment based on the District of Columbia v. Heller. Now the plaintiffs filed for certiorari on May 8, 2025.
US Court of Appeals
Barnett v. Raoul: Case No. 24-3060: In the first months of this appeal, the parties argued over the Motion to stay the District Court’s injunction following the appeal, which was settled by an order of December 5, 2024, staying the judgment of the District Court. On April 7, a briefing schedule was established, and briefs were filed during June. The United States filed its brief, which has sparked considerable commentary from the Second Amendment Community. The brief filed by the DOJ makes several arguments:
- The standard for Second Amendment protection is not limited to self-defense but extends to all lawful purposes.
- The Illinois law constitutes a total ban on a category of firearms (not just AR-15s, but all magazine-fed semi-automatics) that are in common use, making it unconstitutional.
- The DOJ rejects the argument that “militaristic” features or the military utility of a firearm can justify a ban, citing historical precedent for civilian ownership of such arms.
- The brief also addresses the right to repair, purchase, and possess firearm attachments like magazines and suppressors, asserting these are protected under the Second Amendment if they are in common use.
Two Second Amendment supporters on YouTube.com, Todd Vandermyde and Mark W. Smith, considered that this brief was unprecedented, and Smith called it “a seismic shift.” As we await a third, yet-to-be-named judge, we will be following this case carefully.
Background: Illinois: Seventh Circuit
Barnett v. Raoul: Case No. 3:23-cv-00209: District Court
This case was initiated on Jan. 24, 2023, after the Illinois legislature passed and Gov. JB Pritzker signed HB 5741, the “Protect Illinois Communities Act.” Ill. Pub. Act 102-1116 §1. This law banned “nearly every modern semiautomatic rifle—the single most popular type of rifle in the country, possessed by Americans in the tens of millions.” The Plaintiffs made a motion for a preliminary injunction on Jan. 26, 2023. On Feb.24, 2023, the Court ordered a consolidation of three challenges to Illinois’ Protect Illinois Communities Act, which banned a wide range of semi-automatic rifles, magazines over 10 rounds, and certain firearm accessories: 23-cv-141-SPM, 23-cv-192-SPM, 23-cv-209-SPM, and 23-cv-215-SMP. Oral arguments were held on April 12, 2023. On April 28, 2023, Judge Stephen P. McGlynn granted the preliminary injunction, which the State of Illinois appealed on April 28, 2023. A motion for Summary Judgement based on vagueness was then filed by the law firm of Thomas G. Maag on May 19, 2023. “The Motion to Stay (Doc. 112) is GRANTED in part. Consideration of the Motion for Summary Judgment (Doc. 111) is STAYED for 45 days,” was issued on June 29, 2023. Another hearing was held on October 10, 2023, and on December 14, 2023, Judge McGlynn is an order that read:
“This Court DENIES the Langley Plaintiffs’ Motion for Partial Summary Judgment, arguing that the Protect Illinois Communities Act, Ill. Pub. Act 102-1116 § 1 (codified at 720 ILL. COMP. STAT. 5/24-1.9–1.10) [hereinafter PICA] is facially unconstitutional on vagueness grounds.”
On January 16, a Status Conference was set for February 2, 2024. Another status conference was scheduled for Feb. 29, followed by one on April 11. The final conference established a submission date of May 16, 2024, for the expert reports. During a proceeding held before Judge McGlynn, he “reminded that the Court intends for this matter to be resolved on an expedited basis.“On June 4 a scheduling order was announced. On July 16, 2024, a schedule was announced with a bench trial set for Sept. 16, 2024, which concluded after four days. Finally, on Nov. 3, 2024, Judge McGlynn issued a 168-page opinion that ended with: “This permanent injunction is STAYED for thirty (30) days. The Clerk of Court is DIRECTED to enter judgment in favor of the Plaintiffs.”
IT IS SO ORDERED.
On Nov. 8, 2024, the State of Illinois filed a Notice of Appeal, followed on Nov. 11, 2024, by a Motion to vacate the District Court injunction and reverse the District Court’s order to stay the injunction to the U.S. Court of Appeals for the Seventh Circuit. The Plaintiffs-Appellees, Barnett et al., filed their Response to Defendants-Appellants’ Motion to Stay Injunction Pending Appeal on Nov. 27, 2024. Illinois (Defendants-Appellants) filed their response on Dec. 3, 2024. Appeal to SCOTUS: Docket No. 23-879
While the case in the Circuit Court was proceeding at a snail’s pace, the defendants appealed to the U.S. Supreme Court, Docket No. 23-879, on Feb. 14, 2024. After seven distributions for conference, SCOTUS denied certiorari.
New York: Second Circuit
Zherka v. Garland: Case No. 22-1108: Although the three judge panel on June 9 ruled against Zherka, the court rejected the Garland DOJ’s argument that all felons should be denied and they accepted that therelevant historical period for interpreting the Second Amendment is 1791, when the Bill of Rights was ratified, rather than the late 19th century. It is possible this case will be appeal to SCOTUS as well.
Background: United States v. Zherka: Case No. 7:21-cv-10381, U.S. District Court for the Southern District of New York. Following his 2015 felony conviction, Zherka filed a lawsuit, 7:21-cv-10381, against Attorney General Merrick Garland, challenging the constitutionality of 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. Zherka argued that this restriction violated his Second Amendment rights, particularly since his crimes (fraud-related) were non-violent. On March 22, 2022, the court dismissed Zherka’s claim, ruling that he was not a “law-abiding, responsible citizen” for Second Amendment purposes due to the severity of his felony fraud, which resulted in tens of millions in losses. Zherka appealed to the Second Circuit with oral arguments heard on May 8, 2023.
Below are two cases addressing machine guns before two different Courts of Appeal. In both cases, the District Courts found that the federal machine gun statutes were unconstitutional—United States v. Justin Bryce Brown and United States v. Morgan.
Court of Appeal
United States v. Justin Bryce Brown: Case No. 25-60102: The United States filed its brief on April 24. On May 14, the Court granted the Brady Center to Prevent Gun Violence and the Giffords Law Center to Prevent Gun Violence permission to file amicus Curiae briefs, which they did on May 15. On May 27, the Appellee, Mr. Brown, filed his brief. And on June 3, Gun Owners of America filed an amicus curiae. Another amicus brief was filed by the National Rifle Association, Firearms Policy Coalition, and FPC Action Foundation as well.
District Court
Background: United States v. Justin Bryce Brown: No. 3:23-CR-123-CWR-ASH: In 2022, law enforcement raided the home of Justin Bryce Brown, investigating his alleged receipt of international shipments of so-called “machinegun conversion devices.” During the raid, authorities seized an AR-15-style rifle equipped with a three-position safety selector switch. During a later examination, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) claimed that the third selector position allowed the firearm to fire fully automatically. Accordingly, ATF classified the firearm as a “machinegun.” Mr. Brown moved to dismiss, arguing that the statute’s criminalization of his peaceful possession of a firearm within his home violates the Second Amendment, as applied under federal law. The district court granted Mr. Brown’s motion. The United States timely appealed.
Court of Appeal
United States v. Morgan Caser No: 24-3141 (10th Cir., filed Sept. 20, 2024): The government appealed to the Tenth Circuit (Case No. 24-3141), where the case remains pending. [11181050] Oral argument notice filed. This matter is set for IN PERSON oral argument on 7/08/2025 at 9:00 A.M. Mountain Time in Courtroom II of the Byron White United States Courthouse, Denver, CO. A video has been produced by Attorney Tom Grieve on this case.
District Court
Background: United States v. Morgan: Case No. 23-10047-JWB was decided on Aug. 26, 2024, by the U.S. District Court for the District of Kansas in Kansas City. Judge John W. Broome dismissed charges against defendant Tamori Morgan for unlawful possession of machine guns under 18 U.S.C. § 922(o). The decision was based on Second Amendment grounds, applying the Supreme Court’s framework from New York State Rifle & Pistol Ass’n v. Bruen (2022) and United States v. Rahimi (2024).
Background: On April 17, 2023, a federal grand jury in Wichita indicted Tamori Morgan for possessing an Anderson Manufacturing AM-15.300 caliber machine gun and a machine gun conversion device (a “Glock switch”). Morgan’s federal public defender, David Freund, filed a motion to dismiss in November 2023, arguing that the machine gun ban under § 922(o) violated the Second Amendment under Bruen’s historical tradition test. The government argued that machine guns are not protected by the Second Amendment, citing District of Columbia v. Heller (2008), which suggested that bans on “dangerous and unusual” weapons, like machine guns, are constitutional and that there is a historical tradition of regulating such firearms.
District Court
Colorado: Tenth Circuit:
On May 8, 2025, and June 4, 2025, the Defendants filed supplemental motions for Summary Judgment, with the Plaintiffs filing on June 5, 2025.
Background: After two different judges issued Temporary Restraining orders to halt the bans on the sale, possession and transfer of commonly owned semi-automatic rifles in the towns of Boulder and Superior, the following cases were joined: RMGO v. The town of Superior; RMGO v. The City of Louisville, Colorado; and RMGO v. The City of Boulder, Colorado and Board of County commissioners of Boulder County. For simplicity, this case will now be called:
RMGO, et al. v. Town of Superior, et al: Case No. 22-cv-02680-NYW-TPO.
Background: On October 20, 2023, the plaintiffs filed a motion for Summary Judgement, and on the same day, the Defendants filed a motion to exclude Strike / Motion to Partially Strike Expert Reports and Partially Exclude Testimony of Mark Passamaneck and a motion for Summary Judgement. The plaintiffs filed more briefs in support of the Motion for Summary Judgment in December 2023. In January 2024, plaintiffs filed a notice of Stay and Supplemental Expert Discovery with a response by the defendants. On July 15, 2024, Defendants filed a Leave to file Supplemental Authority, which Judge Nina Y. Want granted on Aug. 19, 2024. On Oct. 3, 2024, Judge Wang denied both plaintiffs and defendants summary judgment and plaintiffs and ordered both parties to show cause why summary judgment should not enter in favor of Defendants.
