By Tanya Metaksa
What’s New—SCOTUS: USA v. Rahimi: the DOJ filed its reply brief on Oct. 25. The date for argument is Nov. 7; Cases Distributed remain pending; BATFE proposed rule deadline approaching; GOA v. BATFE: Another stabilizing braces case Judge issues a Preliminary injunction for plaintiffs and GOA members; California: Wiese v. Bonta: Judge William B. Shubb stayed this case pending the decision of the Duncan v. Bonta that is currently before the US Court of Appeals for the Ninth Circuit; Miller v. Bonta: Will be heard by US Court of Appeals for the Ninth Circuit; B&L Productions v. Newsom: Judge John W. Holcomb, US District Court for the Central District of California, granted the Plaintiffs motion for a preliminary injunction and enjoined the state from enforcing the statute; New Jersey: Third Circuit: Siegel v. Platkin: This case was argued before the US Court of Appeals for the Third Circuit Wednesday October 25. The oral argument is available here; New York: Srour v. New York: A case of denial of long gun and pistol permits to possess due to lack of “good moral character.” Judge rules in favor of plaintiff and NYC appeals.
Supreme Court of the United States
United States v. Zackey Rahimi: The DOJ filed its reply brief on Oct. 25. The date for the argument is set for Nov. 7.
Background: Zack Rahimi was involved in five shootings in and around Arlington, Texas between December 2020 and January 2021. He was also under an agreed civil protective order that expressly prohibited him from possessing a firearm and he was indicted for a violation of U.S.C§ 922(g)(8). The Fifth District Court held that when Rahimi was charged with violating U.S.C§ 922(g)(8) he was not a felon therefore he was not prohibited from owning firearms. The case was appealed to the US Court of Appeals for the Fifth Circuit that ruled on Feb. 2 18 U.S.C,§ 922(g)(8) is not constitutional under the Second Amendment. Attorney General Merrick Garland filed an appeal to SCOTUS. SCOTUS announced that it would grant certiorari on June 30. There have been more than 60 amicus briefs filed in this case.
Cases distributed on Oct. 27, but petitions remain pending:Bump stock cases (Hardin v. Garland, Guedes v. BATFE, Garland v. Cargill), and NRA v. Vullo (NY bank/insurance)
Biden Administration
BATFE proposed rule published: new “Definition of ‘Engaged in the Business’ as a Dealer in Firearms”
NPRM 2022R-17 Public Comments nearing deadline
The deadline for submitting Public Comments is Dec. 12, at midnight. may be made by mail—
Mail: Helen Koppe, Mail Stop 6N–518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington, DC 20226; ATTN: ATF 2022R–17
or submitted to Federal eRulemaking Portal: www.regulations.gov.
Background: Using the BiPartisan Safer Communities Act of 2022 as a mandate, BATFE on September 9 published the new rule. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL.
Lawsuits challenging Federal Agencies:
Stabilizing Braces
Cases challenging the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on Jan. 31. To date six Courts, including the US Court of Appeals for the Fifth Circuit have issued limited injunctions against this BATFE rule that became effective on June 1. And on Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
GOA v. BATFE: Texas Federal Judge Drew B. Tipton granted in part Plaintiffs Motion for Preliminary Injunction. BATFE is enjoined and restrained from enforcing and implementing the Final Rule against Plaintiffs Brady Brown and his resident family members as well as GOA’s current members and their resident family members. Judge Tipton cited the US Court of Appeals for the Fifth Circuit decision in the Mock v. Garland case.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Wiese v. Bonta: Magazine ban case. A joint status report was issued on Oct. 16. This was what the Firearms Policy Coalition wrote:
“It has now been 2,362 days since this action was filed on April 28, 2017. That is longer than World War I lasted (2,194 days), or the American Civil War (1,505 days). In other words, entire regimes could be taken down and dismantled more quickly than the time it has taken for the Plaintiffs to obtain relief in their challenge of a single set of laws infringing upon a fundamental, constitutionally protected right.”
On Oct. 18 Judge William B. Shubb vacated the Oct. 30 hearing, stayed and issued an order for a joint status report within 14 days after the US Court of Appeals for the Ninth Circuit issues their decision in the Duncan v. Bonta case.
Miller v. Bonta: Will be heard by US Court of Appeals for the Ninth Circuit
Attorney General Bonta appealed immediately after Judge Roger Benitez ruled in favor of the plaintiff on Oct. 23 for an Emergency Motion for a Stay Pending Appeal and for an Interim Administrative Stay. The US Court of Appeals for the Ninth Circuit issued a time schedule order on Oct. 23. Opening brief is due Nov. 9, responding brief is due Nov. 22 and optional reply brief will be due Nov. 29. The clerk will place this on the schedule for December 2023.
B&L Productions v. Newsom: Two years after the lawsuit was filed Judge John W. Holcomb, US District Court for the Central District of California, granted the Plaintiffs motion for a preliminary injunction and enjoined the state from enforcing the statute. Judge Holcomb wrote that California’s ban on gun shows at the Orange County Fairgrounds and on state-owned property, saying they likely violate the First and Second Amendments
Background: B&L Productions (Crossroads of the West), California Rifle & Pistol Association, et al filed a lawsuit in federal court in 2022 challenging state bill SB 264, banning gun shows by prohibiting the sale of firearms, firearms parts and ammunition at the Orange County Fairgrounds.
New Jersey: Third Circuit:
Siegel v. Platkin: This case was argued before the US Court of Appeals for the Third Circuit Wednesday October 25. The oral argument is available here.
ANJRPC summary of case: Gun owners will recall that, after Judge Bumb’s historic ruling in the lower court earlier this year granting an injunction blocking large portions of the carry-killer law, the State appealed to the middle level federal court, seeking to reinstate the law. At the request of the State, the appeals court partially suspended the lower court’s injunction for the duration of the State’s appeal, thereby reinstating large swaths of the carry-killer law. ANJRPC simultaneously sought to expand the court’s injunction to block more of the carry-killer law. At tomorrow’s hearing, the parties will make their various arguments to the court, which will render a decision at a later date.
New York: Second Circuit
Srour v. New York City: Judge John P. Cronin of the US District Court for the Southern District of New York granted plaintiff Joseph Srour’s motion for declaratory and injunctive relief with respect to subsections (a)(2) and (a)(9) of New York City Administrative Code Section 10-303. These subsections deal with the NYC permits to purchase or possess requirement for rifles and shotguns. Denial can be based on the applicant’s lack of “good moral character” or upon the official’s finding of “other good cause.” Cronin also granted his motion against prior versions of Sections 3-03 and 5-10 of Title 38 of the RCNY. The decision was stayed until Oct. 26, but NYC appealed to the US Court of Appeals for the Second Circuit on October 24, 2023.
Background: Srour brought this case in June 2022 prior to the Bruen decision. He had been denied his application for both long gun and pistol permits by the NY Police Department due to lack of “good moral character.”
