By Tanya Metaksa
What’s New —SCOTUS: The U.S. Supreme Court met on Thursday, June 11, to discuss cases: No decisions on the 5 cases awaiting certiorari’ C.S. v. Craig McCrumb, Case No. 25-831: The Supreme Court discussed the case (called C.S. v. Craig McCrumb on the Court’s docket) at two private conferences and then declined to take it on June 11; California: Ninth Circuit: Lopez v. Los Angeles: restricting handgun purchases to once a month; Texas: Fifth Circuit: Texas v. ATF: On June 12, the court denied DOJ’s motion to stay, granted in part plaintiffs’ motion for summary judgment, denied defendants’ cross‑motion, and vacated the final rule “Definition of ‘Engaged in the Business’ as a Dealer in Firearms;” Commonwealth of Virginia: Crump v. Katz: YouTube: TheFourBoxesDiner host Mark Smith video on challenge to 2026 VA gun laws.
SCOTUS
Calendar: The U.S. Supreme Court met on Thursday, June 11, to discuss cases, and the announcement on June 15 at 9:30 am matched previous ones—silence. All five Second Amendment cases that had been relisted multiple times still were not considered. The next conference day is this Thursday June 18, with the final conference scheduled for June 25. The court will not meet on June 19 in observance of Juneteenth, a federal holiday.
C.S. v. Craig McCrumb, Case No. 25-831: The Supreme Court discussed the case (called C.S. v. Craig McCrumb on the Court’s docket) at two private conferences and then declined to take it earlier on June 11, 2026, without any public dissents or separate opinions, so the lower court’s decision remained in place and the basic student‑speech rules from Tinker v. Des Moines did not change.
Original case: C.S. v. McCrumb; Case No. 2:22-cv-10993; United States District Court for the Eastern District of Michigan
What happened at the school
- In February 2022, during a “Hat Day” as part of a “Great Kindness Challenge” week, a third‑grade student in Michigan wore a black hat with a white star, an image of an AR‑style rifle, and the words “COME AND TAKE IT.”
- She chose the hat to show support for her father and his gun-rights/Second Amendment views. School officials and a school officer were concerned about the gun image and message, so they told her she had to take the hat off and put it in her locker, which she ultimately did.
Court cases
District court (trial court)
- The district court granted summary judgment in favor of the school officials, concluding the hat restriction was justified under the circumstances.
Appeals court: Case No. 24‑1364; U.S. Court of Appeals for the Sixth Circuit: May 2, 2025
- Applying Tinker v. Des Moines, the panel accepted that the hat was expressive “pure speech” but held that school officials had “good cause to expect substantial disruption” given the “special characteristics” at issue.
- Key to that conclusion were: the Oxford High School shooting in nearby Oakland County just 10 weeks before the event; the proximity and publicity of that shooting; the presence of former Oxford students in the school; the young age of the elementary students; and the hat’s firearm imagery and slogan.
- The court rejected C.S.’s argument that the school lacked concrete evidence of likely disruption and was merely suppressing a pro‑Second Amendment viewpoint; instead, it viewed the action as a permissible preventative measure under Tinker’s disruption standard rather than as viewpoint discrimination.
- An en banc hearing was denied.
Cert petition and arguments to SCOTUS
- In the Supreme Court, C.S.’s petition argued that the Sixth Circuit effectively created a new, fourth category of regulable student speech—speech that causes “potential emotional harm”—beyond the existing Tinker-related categories (material disruption, invasion of others’ rights, lewd speech, school-sponsored speech, etc.).
- The petition argued that the decision “blow[s] a gaping hole in Tinker” by allowing school officials, with months of hindsight and counsel’s help, to “contrive some justification” for suppressing student speech they dislike, especially on controversial topics such as guns and the Second Amendment.
- Petitioners presented the case as an opportunity to clarify whether administrators can suppress peaceful, non-disruptive political expression based on the idea of protecting “children reeling from an irrefutably tragic and traumatic event” without any current evidence of likely disruption.
Why this case matters
- In the states covered by the Sixth Circuit, this decision gives schools more room to restrict student clothing with gun imagery or similar themes, especially in elementary schools and where there has been a recent local shooting.
District Court
Texas: Fifth Circuit
Texas v. ATF: Case No. 2:24‑cv‑00089‑Z (N.D. Tex., Judge Matthew J. Kacsmaryk). On June 12, the court denied DOJ’s motion to stay, granted in part plaintiffs’ motion for summary judgment, denied defendants’ cross‑motion, and vacated the final rule “Definition of ‘Engaged in the Business’ as a Dealer in Firearms,” 89 Fed. Reg. 28,968 (Apr. 19, 2024), codified at 27 C.F.R. § 478.
Background
- In April 2024, ATF issued a final rule redefining who is “engaged in the business” as a firearms dealer, significantly expanding who is required to obtain an FFL, run NICS checks, and keep records, effectively bringing many private sellers, hobbyists, and collectors into dealer status.
- Plaintiffs sued under the APA and Constitution, arguing the rule exceeded statutory authority, conflicted with the text and structure of BSCA and the GCA, criminalized previously lawful private sales, functioned as an unapproved universal background-check regime, and burdened Second Amendment rights.
April 2024 ruling and Fifth Circuit appeal
- The district court first issued a TRO and then a preliminary injunction to block enforcement of the rule against Texas, the other plaintiff states, and the organizational and individual plaintiffs, finding they were likely to succeed on the merits of their APA claims.
- DOJ appealed the preliminary injunction to the Fifth Circuit, but after the 2025 change in administration and a presidential order to review Biden‑era ATF rules, DOJ moved to dismiss its own appeal, leaving the PI in place while the case continued in district court.
Intervenor from twenty “anti-gun” states
- A group of twenty “anti‑gun” states moved to intervene on ATF’s side, arguing that the rule lawfully implements BSCA, broadens trace‑data and record‑keeping essential for gun‑crime enforcement, and that DOJ would no longer adequately defend the rule.
- The court ultimately denied their motion as moot and untimely, given the decision on the merits and the fact that their interests had already been represented in earlier government briefing.
Key Issues
- Whether the “engaged in the business” rule overstepped ATF’s legal authority under the GCA/BSCA by effectively redefining who qualifies as a dealer.
- Whether the rule was arbitrary, capricious, or otherwise not in accordance with law under the APA.
- Whether the court should stay proceedings or limit relief while DOJ/ATF pursued a new rulemaking to revise or rescind the challenged rule.
- Whether nationwide vacatur and denial of state‑AG intervention were proper remedies.
Holdings
- The court concluded that the plaintiffs prevailed on their APA claims and that the final “engaged in the business” rule was unlawful and must be “held unlawful and set aside” under 5 U.S.C. § 706(2).
- The court rejected DOJ’s attempt to stay or pause the case due to ongoing reconsideration of the rule, found the case not moot despite ATF’s new rulemaking efforts, and declined to defer to the agency’s promised rescission.
- It also denied the supposed intervenor states’ motion to intervene and, due to its ruling on the merits, vacated the rule.
Court Decision Basis
- Relying heavily on its earlier preliminary injunction opinion, the court concluded that ATF’s rule diverged from the statutory text and long-standing understanding of “engaged in the business” by effectively treating occasional, non-commercial private sellers as presumptive “dealers.”
- The court criticized the rule for shifting the burden from the government to the citizen by creating presumptions that typical private‑sale behavior suggests a commercial deal, risking the punishment of conduct Congress considered lawful, and undermining the mens rea and structure Congress established in the GCA and BSCA.
- It also emphasized that allowing ATF to convert private sellers into licensees through rulemaking would establish a de facto universal background check and expanded registry system without explicit congressional approval.
Remedy:
- The court granted the plaintiffs’ motion for summary judgment under the Administrative Procedure Act (APA) and vacated the ATF’s 2024 “engaged in the business” dealer rule in its entirety, treating it as if it never legally existed. Because APA vacatur is not restricted to parties, the court ordered that defendants cannot apply the final rule to anyone nationwide, and it dissolved the previous preliminary injunction as unnecessary.
- Invoking APA § 706(2), the court ordered that the final rule be set aside and therefore have no legal force, dissolved the prior preliminary injunction as redundant in light of vacatur, and rejected intervention as moot.
- ATF’s 2024 dealer-definition rule is no longer in effect; ATF cannot use it to determine who must register as a dealer, conduct background checks, or keep 4473-style records under the expanded “engaged in the business” standard.
State Courts
Virginia
In the May 20 Judicial Report, we discussed several cases filed after Virginia Democrats passed several anti-Second Amendment laws. These include McDonald v. Katz, No. 26-cv-1305 (E.D. Va. filed May 14, 2026), challenging Virginia’s “assault firearm” and magazine bans, as well as cases filed in Virginia’s Commonwealth courts—Curtis v. Katz, Crump v. Katz, Black v. Hook, and Santolla v. Katz: Case No. 26‑1139.
The Virginia Supreme Court has formed a three-judge panel to determine whether the four state-court cases should be consolidated, which led to the cancellation of the Crump v. Katz hearing — but the Spotsylvania judge overseeing Curtis appears to be sticking to his schedule.
Curtis v. Katz, the actual case in the Circuit Court of Spotsylvania County, Virginia, involves Bob’s Gun Store, Mike Wood, Dustin Curtis (Director of Political Affairs for the National Association for Gun Rights), and Daniel Hinkson (a certified firearms trainer). On June 15, the Second Amendment Foundation throws its support to this case.
Filed in the Spotsylvania County Circuit Court on May 19, the case seeks both a declaratory judgment and a preliminary injunction to prevent enforcement before July 1. A preliminary injunction hearing is scheduled for June 17. Notably, the local Commonwealth’s Attorney, Ryan Mehaffey (a defendant), filed a brief arguing that the plaintiffs should receive the preliminary injunction—a notable concession by a named defendant.
Crump v. Katz, Actual case name in the Circuit Court for the County of Lancaster: John Crump, Gun Owners of America, Inc., Gun Owners Foundation, Virginia Citizens Defense League, and Virginia Citizens Defense Foundation.
Mark W. Smith, the legal expert behind the YouTube channel The Four Boxes Diner, has posted a 19-minute video that dismantles the Commonwealth of Virginia’s state brief defending its recently enacted “assault firearms” ban, arguing that the state’s legal positions are fundamentally challenged by a 2011 Virginia Supreme Court precedent — DiGiacinto v. George Mason University.
Mark Smith examines the Commonwealth of Virginia’s brief defending its recent “assault firearms” ban, arguing that the state’s legal positions are fundamentally challenged by an existing 2011 Virginia Supreme Court precedent — DiGiacinto v. George Mason University.
The Key Precedent: DiGiacinto v. GMU (2011)
The Virginia Supreme Court ruled in 2011 that the Virginia State Constitution’s right to keep and bear arms is co-extensive — “substantially identical” — with the federal Second Amendment. This means that all federal Second Amendment jurisprudence, including Heller and Bruen, applies equally under the Virginia Constitution. Smith contends that the state cannot escape this binding precedent.
Here is a summary of his video, but you should watch it for yourself:
Virginia’s Weak Arguments: Smith identifies two main problems with the state’s brief:
- Standing: The state argues Gun Owners of America and the Virginia Citizens Defense League lack organizational standing in Virginia courts, but Smith contends the organizations easily meet the criteria for standing by demonstrating they incurred additional costs (staff, resources) in responding to the new law.
- Collective Rights Theory: The state’s brief implicitly reaffirms the discredited argument that the right to bear arms is connected to militia service, not an individual right — a theory Virginians explicitly rejected when they amended their state constitution in 1971 specifically to protect an individual right.
The Girandoni Air Rifle Argument
- Smith makes a historically interesting point: the Girandoni air rifle — capable of firing 20–24 rounds without reloading — was carried on the Lewis and Clark expedition commissioned by Virginia’s own Thomas Jefferson, with both Lewis and Clark being Virginians. Since Virginia’s constitution, like the Second Amendment, codifies a pre-existing 18th-century right, this history directly undermines any ban on firearms capable of holding more than 10 rounds.
- Smith argues that the state’s reliance on U.S. v. Miller (1939) actually weakens their position: if the Second Amendment only protected militia members, the Miller Court would simply have ruled that Miller wasn’t in a militia and dismissed the case quickly — but instead, the Court examined whether a sawed-off shotgun had a militia-related purpose, demonstrating that the right is individual in nature.
A short summary of Virginia’s twentieth-century 2A legislative history
The 1969–1971 Amendment: The Critical Change
Virginia finally revised Article I, Section 13 in 1969 (ratified as part of the 1971 constitution), adding the now-operative clause: “therefore, the right of the people to keep and bear arms shall not be infringed.” Legislative records from the debates surrounding the 1969 amendments show the framers intended the new language to be co-extensive with the federal Second Amendment, mirroring its protections at the state level. This intent to track the federal right — rather than create something broader or narrower — became the foundation for all subsequent Virginia jurisprudence on the issue.
Key Cases Interpreting the Right: The current interpretive history of Art. I, § 13, flows through several important decisions:
- Stallings v. Wall (1988): The Virginia Supreme Court upheld a local handgun permit ordinance, finding it was not expressly prohibited by the state constitution
- DiGiacinto v. George Mason University (2011): The Virginia Supreme Court explicitly held that the protection of Art. I, § 13 is “co-extensive with” the federal Second Amendment, meaning Heller, McDonald, and Bruen all apply with equal force under Virginia’s own constitution.
- 1993 AG Opinion: Virginia’s Attorney General concluded that Art. I, § 13 was “intended to be synonymous with the Second Amendment,” reinforcing the co-extensiveness doctrine.
- Stickley v. Winchester (post-Bruen): A Virginia court reaffirmed that because the 1969 amendment was intended to mirror the Second Amendment, firearms for self-defense in public are presumptively protected under state law as well.
Current Constitution and Its Significance
The current Article I, Section 13 reads: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed…”. The word “therefore” — connecting the militia clause to the individual right — is textually significant: it frames individual arms-bearing as the means by which the well-regulated militia is sustained, reinforcing the individual rights reading that Heller later adopted at the federal level.
