By Tanya Metaksa
What’s New – SCOTUS: Conference of March 5: DENIED; Kimberly LeFave v. Fairfax County: No. 25‑872: United States v. Ali Danial Hemani: Case No. 24-1234: This case had a March 2 hearing-new discussion papers; NSSF v. James: Case No: No. 25-1026; awaiting decision on certiorari; Schoenthal v. Raoul: Case No. 25-541: SCOTUS has scheduled this case for conference of March 20; Petition for certiorari: NRA v. Vullo: Case No: 25-479:; On Feb. 23, the Supreme Court denied certiorari in the National Rifle Association’s lawsuit against former New York Department of Financial Services Superintendent Maria Vullo; District of Columbia. Court of Appeals—Tyree Benson v. USA and District of Columbia; Case No. 23-CF-0514: Does this case herald the demise of bans on “large capacity” magazines? US Court of Appeals for the Ninth Circuit: Rhode v. Bonta: Case No. 24‑542. a longstanding Second Amendment and Commerce Clause challenge to California’s voter-approved ammunition background check and importation regime, now scheduled for en banc argument in the Ninth Circuit during the week of March 23; District Court Jonathan Sinsky and the Hawaii Rifle Association v. Anne Lopez; Case No. TBD:
SCOTUS
Next Conference March 20:
United States v. Hemani: After our review of the comments on the Hemani hearing last week, two other publications weighed in on this case. Duke Center for Firearms Blog and The Volokh Conspiracy in Reason.
- Jacob Charles writes for the Duke Center for Firearms Blog—Second Thoughts Blog. As he notes in this review, he is also the author of an amicus brief in the case. His amicus brief supports the government’s position, but his analysis of the Justices’ arguments and questions does not entirely match his amicus. He shares his impression of the Justices during the hearing and then explores how they might align with the government’s stance. It’s an engaging discussion of the arguments. The decision is expected before the end of this term in June 2026.
- Second Amendment Attorney Stephen Halbrook, on the Volokh Conspiracy, concludes: “Whatever the outcome, no question remains that the previous overly broad ATF regulation is no longer in effect.” As I explained here, the regulation claimed that someone is an unlawful user if the drug was used “in the past year.” The U.S. brief in Hemani argued that someone is an unlawful user “only if he engages in the habitual or regular use of a controlled substance,” and it never mentioned the ATF regulation. ATF has proposed an interim final rule stating: “A person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance.”
NSSF v. James: Case No: No. 25-1026.
Supreme Court Petition
- On Feb. 20, NSSF petitioned SCOTUS for certiorari, highlighting a circuit split. The Second Circuit’s broad interpretation of the predicate exception conflicts with narrower views in the Ninth and D.C. Circuits, which restrict it to prevent “swallowing” PLCAA as instructed by Supreme Court precedent, such as Smith & Wesson Brands v. Estados Unidos Mexicanos.
- The main question: Does PLCAA’s predicate exception allow states to codify common-law claims, such as public nuisance, against the industry for remote criminal acts, thereby undermining congressional intent? NSSF warns of a spreading trend—10 states have enacted similar “anti-PLCAA” laws.
- As of March 2026, SCOTUS has not yet ruled on certiorari; the case may clarify PLCAA limits amid rising state challenges.
Background:
- This key case challenges New York’s gun industry liability law before the U.S. Supreme Court through a writ of certiorari. The National Shooting Sports Foundation (NSSF) and firearm manufacturers argue that the law bypasses federal protections under the Protection of Lawful Commerce in Arms Act (PLCAA).
- In July 2021, New York passed N.Y. General Business Law § 898 (Section 898), a law targeting public nuisances related to the “gun industry members” such as manufacturers, distributors, and dealers. It holds them civilly liable if they “knowingly or recklessly” disregard public safety through firearm sales, marketing, or distribution that results in unlawful use within the state, including illegal possession or gun violence.
- The law mandates proactive steps to prevent the diversion of guns to criminals, amid legislative findings connecting illegal firearms to New York’s gun violence crisis. Supporters see it as holding the industry accountable; critics argue it’s a sneaky attack on lawful commerce.
Litigation History (2021 – 2026)
- In December 2021, NSSF and 14 members (such as Beretta, Glock, Smith & Wesson) sued New York Attorney General Letitia James in the U.S. District Court for the Northern District of New York (Case No. 1:21-cv-01348). They argued that Section 898 is preempted by the 2005 PLCAA, which protects the gun industry from lawsuits over third-party criminal misuse unless certain exceptions apply. Their claims also included violations of the dormant Commerce Clause (regulating out-of-state conduct extraterritorially) and vagueness under the Fourteenth Amendment.
- The district court dismissed the facial, pre-enforcement challenge in 2022, ruling the law fits PLCAA’s “predicate exception” (for knowing violations of state laws like nuisance statutes), imposes no undue interstate burden, and provides fair notice.
- On appeal (No. 22-1374), the Second Circuit affirmed on July 10, 2025. It held that plaintiffs failed to demonstrate the statute is invalid in all applications, confirmed that the predicate exception applies without reactivating prohibited claims, rejected issues related to the Commerce Clause (no protectionism, moot facial discrimination after the amendment), and found no vagueness.
Schoenthal v. Raoul: Case No. 25-541: SCOTUS has scheduled this case for conference of March 20, 2026.
Petition for certiorari:
- Shoenthal v. Raoul (7th Cir. No. 24-2643 & 24-2644) involves an as-applied Second Amendment challenge to Illinois’s statutory ban on carrying firearms on public transportation, where the district court struck down the ban as unconstitutional under Bruen, but the Seventh Circuit later reversed, upholding the restriction as consistent with the Nation’s historical tradition of regulating arms in “sensitive” and crowded places.
Reply brief: Firearms Policy Coalition (FPC) announced that a reply brief in support of the cert petition has been filed on March 3.
District Court: N.D. IL, August 30, 2024: Judge Iain D. Johnston
- The court held that plaintiffs’ intent to carry a concealed handgun for self‑defense on public transit falls within the scope of the Second Amendment, as interpreted in Heller and Bruen (bearing arms “in case of confrontation” in public for self‑defense).
- Result: The conduct is presumptively protected; the burden shifts to the government to justify the restriction by historical tradition. Yet, no injunction was issued.
US Court of Appeals for the Seventh Circuit: Panel: Ripple, St. Eve, and Kolar. Opinion by Judge Kolar
- The Seventh Circuit stated a unifying principle: Sensitive‑place regulation is allowed in “discrete places with unavoidable characteristics that potentially make it unwise to permit firearms,” where there is a pre‑existing vulnerability or societal tension worsened by firearms, and where the restriction is temporary and geographically limited rather than effectively banning public carry throughout entire cities.
NRA v. Vullo: Case No: 25-479:
Petition for certiorari:
- On Feb. 23, the Supreme Court denied certiorari in the National Rifle Association’s lawsuit against former New York Department of Financial Services Superintendent Maria Vullo, after years of litigation, leaving Vullo as the ultimate winner and free from personal liability.
Initial Supreme Court Decision
- The NRA initially succeeded at the Supreme Court in 2024 when a unanimous Court held that, assuming the allegations are true, Vullo’s conduct toward regulated financial institutions could infringe on the NRA’s First Amendment rights, and sent the case back to the Second Circuit to consider qualified immunity.
On remand, the Second Circuit ruled in favor of Vullo on qualified immunity grounds, concluding that a reasonable official in her position would not have known her actions violated clearly established law. The NRA sought Supreme Court review of that decision, but the Court declined to hear the case, reaffirming the qualified-immunity ruling and Vullo’s victory..
Kimberly LeFave v. Fairfax County: No. 25‑872: DENIED
Petition for certiorari:
- As of early 2026, LaFave and co‑plaintiffs have petitioned the U.S. Supreme Court for review, docketed as No. 25‑872, with an associated emergency application docketed as 25A504.supremecourt. The petition asks the Court to determine whether local governments may impose broad firearm bans in parks simply because some parks host school programs, invoking the sensitive‑places doctrine following Bruen.
Virginia-Fairfax County Circuit Court,
- Plaintiffs, including Kimberly LaFave, challenged a Fairfax County ordinance that bans firearms in county parks and in or near public spaces used for county-permitted events, claiming violations of the Second and Fourteenth Amendments. Judge Christie Leary denied the preliminary injunction in June 2023, concluding that the plaintiffs had not demonstrated a likelihood of success on the merits or that they would suffer irreparable harm. She also highlighted the history of sensitive-places regulation and the plaintiffs’ two-year delay before seeking injunctive relief.
Federal District Court Ruling (E.D. Va.)
- The Eastern District of Virginia ruled that both the parks and events restrictions regulate “sensitive places,” found them consistent with the Second Amendment under Bruen, rejected the vagueness claim, and granted summary judgment for the County.
Fourth Circuit Decision: On appeal, No. 24‑1886,
- The Fourth Circuit considered the park’s claim as a facial challenge and upheld the restriction because it is constitutional in certain cases—particularly when county parks include preschools or preschool programs, similar to historically recognized sensitive places like schools. The court vacated the judgment on the events restriction and ordered dismissal without prejudice, ruling that the plaintiffs lacked Article III standing because they did not demonstrate a concrete plan to violate the events ban or a credible threat of prosecution.
Courts of Appeal
District of Columbia. Court of Appeals
Tyree Benson v. USA and District of Columbia; Case No. 23-CF-0514:
Background
- D.C. Court of Appeals struck down the District of Columbia’s ban on magazines holding more than 10 rounds as facially unconstitutional under the Second Amendment
- This decision affirmed the Second Amendment challenge to the District’s ban on firearm magazines capable of holding “more than 10 rounds of ammunition.” …The United States, which prosecuted Benson in the underlying case and initially defended the ban’s constitutionality, now agrees that this ban violates the Second Amendment.
- The case originates from Benson’s criminal conviction under Washington, D.C.’s magazine‑capacity law, which the Justice Department initially defended on appeal during the Biden administration. According to Smith, after President Trump took office, the Department—through officials he identifies as Pam Bondi, Janine Pirro, Harmeet Dhillon, and members of a newly formed Second Amendment unit—changed course and submitted a brief acknowledging that magazines holding more than ten rounds qualify as protected “arms” in common use and that the prohibition is unconstitutional. Smith describes this filing as a deliberate, long‑term litigation strategy rather than an isolated act, crediting it with paving the way for Benson’s ultimate victory and the resulting circuit split.
Is this the start of the end for bans on “large capacity” magazines?
- In a recent video, after the decision was announced, Mark W. Smith, a Second Amendment attorney (@FourBoxesDiner on X.com and the Four Boxes Diner on YouTube.com) who reviews current cases, suggests this ruling creates a real “circuit split”: multiple federal courts of appeals (First, Seventh, Ninth Circuits) have upheld state magazine bans, while D.C.’s highest court has now declared such a ban unconstitutional. He argues that this split significantly increases the chances that the U.S. Supreme Court will review Duncan v. Bonta, the California magazine-ban case currently at the certiorari stage.
Ramification of this case
- Smith explains that Benson rejected the District’s attempt to limit review to 30-round magazines and argued that because the statute did not require proof of any higher capacity and because it banned a firearm in common lawful use, there was no constitutional application and the law was facially invalid. He contends that Benson increases the chances the Court will grant Kimberly LeFave v. Fairfax County and encourages lower courts that have been “ignoring” Bruen by refusing to strike down gun-control statutes.
- 24 hours after the decision, Smith reported in response to the appellate loss, D.C.’s local attorneys filed an emergency motion asking the D.C. Court of Appeals to suspend the precedential effect of the panel’s decision and to grant en banc review by all seven active judges, arguing the ruling has a large “blast radius,” creates “uncertainty and chaos” for enforcement of magazine and related gun laws, and conflicts with prior decisions including Hansen v. D.C. that had upheld the same statute. He goes on the add that en en banc review in the D.C. Court of Appeals is rare and historically used for technical criminal procedure and home‑rule issues, not high‑profile Second Amendment cases, so it is uncertain whether the court will grant D.C.’s request.
- A further complication is that there are two vacancies on this court and to fill them may take a long time.
Circuit Court: US Court of Appeals for the Ninth Circuit
Rhode v. Bonta: Case No. 24-542 is a longstanding challenge to California’s voter-approved ammunition background check and importation system, raising Second Amendment and Commerce Clause issues, now set for en banc argument in the Ninth Circuit during the week of March 23, 2026.
En Banc Proceedings and March 2026 Argument
- Following the July 2025 panel loss, Attorney General Bonta requested an en banc rehearing, arguing that the panel misapplied Bruen and underestimated California’s public safety interests; the Ninth Circuit granted the rehearing en banc and vacated the panel decision.
- The court has scheduled oral arguments for the week of March 23 in Pasadena, with public notices indicating the hearing during that week; subsequent orders set March 25 as the specific date. The case has attracted unusual support: the U.S. Department of Justice and a coalition of 26 states filed amicus briefs backing Rhode and urging the Ninth Circuit to decide that California’s ammo background-check law conflicts with the Second Amendment under Bruen. The en banc court’s ruling will likely determine how far states within the Ninth Circuit can go in regulating ammunition purchases after Bruen.
- The case began as Rhode v. Becerra, filed in the Southern District of California by Olympic skeet shooter Kim Rhode, several individual gun owners, and out-of-state ammunition vendors, with backing from the California Rifle & Pistol Association and NRA-affiliated groups. They sued then–Attorney General Xavier Becerra (now Rob Bonta, by substitution), challenging California’s ammunition laws enacted through Proposition 63 (2016) and subsequent legislation.
California’s Ammo Regime
- Proposition 63 and its implementing laws created a background-check requirement for nearly all in-state ammunition purchases starting July 1, 2019. Buyers must complete face-to-face transactions through licensed ammunition vendors, with their information checked against one of several state databases, and a fee is charged for each sale. The law also significantly restricts direct shipments from out-of-state sellers to California residents and makes most unapproved imports by residents a criminal offense. Plaintiffs argue that the system often denies or delays lawful buyers while doing little to prevent prohibited persons from purchasing.
Claims and District Court Rulings
- Rhode’s suit raises three main federal claims: (1) that the ammunition background-check system infringes on the Second Amendment by placing a “meaningful constraint” on obtaining ammunition necessary to keep firearms operational; (2) that the anti-importation rules violate the dormant Commerce Clause by discriminating against and burdening out-of-state vendors; and (3) that certain transport restrictions are preempted by 18 U.S.C. § 926A. In 2020, the district court (Judge Roger Benitez) issued a preliminary injunction against enforcing the background-check and importation provisions, though the Ninth Circuit quickly stayed that order and allowed the law to remain in effect pending appeal. After consolidating a merits trial with the preliminary-injunction hearing under Rule 65(a)(2), the district court ultimately issued a permanent injunction, ruling that the regime violated the Second Amendment and that parts of the importation rules violated the dormant Commerce Clause and § 926A.
- On July 24, 2025, a divided three-judge Ninth Circuit panel affirmed the permanent injunction. Applying the Supreme Court’s Bruen framework, the majority argued that California’s ammunition background-check law affects the plain text of the Second Amendment because it significantly limits the right to keep operable arms. At Bruen’s historical step, the panel concluded that California had not demonstrated its modern, transaction-by-transaction ammunition screening aligned with the Nation’s historical firearm regulations, highlighting the lack of similar founding-era ammo-purchase checks. One judge dissented, describing the delays and fees as minimal and contending that the scheme was facially constitutional.
District Court
Jonathan Sinsky and the Hawaii Rifle Association v. Anne Lopez; Case No. TBD:
A constitutional challenge
- A new constitutional challenge has been filed in the Federal District Court for Hawaii against Hawaii’s ban on issuing concealed carry permits to non-residents. The case argues that the ban violates the Second Amendment under the Supreme Court’s Bruen framework. The plaintiffs in Jonathan Sinsky and the Hawaii Rifle Association v. Anne Lopez argue that Hawaii’s outright prohibition on issuing concealed-carry licenses to nonresidents is unconstitutional because it targets conduct—carrying handguns in public for self-defense—that is protected by the plain text of “the right of the people to keep and bear Arms.”
- Attorney Mark W. Smith praises the novel analysis by Attorneys Kevin O’Grady and Alan Beck in their 52-page complaint, which documents laws and practices affirming non-resident travelers’ ability to carry arms from before the founding through the nineteenth century.
