October 2022 Legislation/Litigation Update
October Focus— Antonyuk v Hochul was filed against the New York “Concealed Carry Improvement Act” (CCIA) in the US District Court for the Northern District of New York. The plaintiff’s motion for a Temporary Restraining Order was granted in part and denied in part. On October 12 the Second Circuit Court of Appeals stayed the Temporary Restraining Order, which means the state of New York can continue to enforce the CCIA until there is further action. The CCIA was passed after the Supreme Court Bruen decision and took effect July1, 2022.
The district court judge’s temporary order changed the language from requiring the applicant to prove they are “of good moral character” to requiring evidence to show they are not.
The judge temporarily restrained the enforcement of requirements to:
Provide the “names and contact information for the applicant’s current spouse or domestic partner, and any other adults residing in the applicant’s home, including any adult children of the applicant, and whether or not there are minors residing full or part time in the applicant’s home”.
Provide a list of social media accounts the applicant has currently or had during the past three years.
Participate in an “in person meeting”.
The judge also temporarily restrained parts of the expansion of “sensitive places”, while allowing other parts to stand.
An appeal of the temporary restraining order has been filed with the Second Circuit Court of Appeals. A hearing on the actual injunction is scheduled for October 25.
Legislation
U.S. House Resolution 8741, Firearm Industry Fairness Act
The Firearm Industry Fairness Act would tax firearm manufacturers that produce semiautomatic firearms or high-capacity magazines at a rate of 20% on all revenue—not just the revenue from the sales of those specific products.
The bill would use the tax revenue derived from these manufacturers to fund Community Violence Intervention programs to reduce gun violence and help victims.
Note that as an appropriations bill, the Senate filibuster rules do not apply, and this bill needs only a simple majority to pass the U.S. Senate. Currently in House Ways and Means Committee.
California Senate Bill 1384 Firearms: dealer requirements.
This law will require the firearms dealer to carry a policy of general liability insurance, as specified. This law will require a firearms dealer to have an extensive video surveillance system and maintain video recordings for a minimum of one year, and other security provisions. This law takes effect January 1, 2024. Passed by the Senate 5/14; passed by the Assembly 8/23. Approved by the governor on September 30.
California Assembly Bill 2552 Firearms: gun shows and events
This law increases signage requirements for gun show organizers, increases paperwork for gun show vendors, and bans the sale of black powder, unfinished receivers, unfinished frames, and conversion kits designed to convert a handgun into a short-barreled rifle or assault weapon at gun shows. Vendors also will be prohibited from inciting or encouraging hate crimes. This law becomes effective July 1, 2023. Amended and passed in the Senate 6/28. Amended and passed by the assembly 8/23. Approved by the governor on September 28.
Note, to find current, reliable information on any bill before the California legislature you can go to: https://leginfo.legislature.ca.gov/faces/home.xhtml
Litigation
A federal judge dismissed the lawsuit by the government of Mexico against US gun manufacturers that would have held the manufacturers liable for guns trafficked across the US/Mexico border to drug cartels. Chief Judge F. Dennis Saylor in federal court in Boston cited the Protection of Lawful Commerce in Arms Act (PLCAA), that shields gun makers from lawsuits over “the harm solely caused by the criminal or unlawful misuse of firearm products…by others when the product functioned as designed and intended”. An appeal is expected.
On the first day of their current session, the United States Supreme Court declined to hear appeals of the Trump Administration ATF’s ban on “bump stocks”. “Bump stocks” are a device that increases the fire rate of semi-automatic rifles. The US District Court for Utah and 10th Circuit Court of Appeals upheld the ban, which was implemented by the ATF without congressional action. In a separate law suit the 6th Circuit Court of Appeals has also upheld the ban. The basis of these lawsuits was not only “bump stocks”, but the ATF unilaterally changing definitions to allow them to ban things without congressional action.
Vanderstock v Garland is a challenge to the ATF rule on unfinished receivers and frames, and specifically whether the ATF has authority to regulate things that are not a firearm. The US District Court in the Northern division of Texas has issued an injunction against the ATF enforcement of the new rule, 2021-05f.
The ATF has sent a letter to FFLs regarding Armalite lower receivers. Anyone buying, selling, owning, or otherwise interested in unfinished receivers should read this letter: https://www.atf.gov/firearms/docs/open-letter/all-ffls-september-2022-impact-final-rule-2021-05f-partially-complete-ar/download
Gunfighter Tactical v Bonta is a lawsuit filed against the “fee shifting” provisions of SB1327 has been filed and has been assigned to US Judge Roger Benitez of the Southern District of California. The “fee shifting” can require anyone suing California or any local jurisdiction over Second Amendment rights be liable for the government’s legal fees if not completely successful.
Moren v Liver deals with Massachusetts’ revoking the plaintiff’s firearm license and CCW permit. The plaintiff plead guilty to a non-violent, but CCW related, misdemeanor in the District of Columbia, which caused the state of Massachusetts to permanently revoke his license to purchase firearms. The First Circuit opinion said denying the right to purchase a firearm did not infringe, because there are other ways to obtain a firearm such as inheriting it. The Supreme Court vacated and remanded this lawsuit to the First Circuit Court of Appeals. First Circuit Court of Appeals must now reconsider their ruling in light of the Bruen decision direction.
Nguyen v Bonta is a challenge to the California “1 in 30” law limiting purchases of handguns or center-fire semi-auto rifles to 1 in 30 days. The judge has asked for brief regarding how this case should be handled in light of the Bruen decision.
Duncan v Bonta: The Ninth Circuit Court of Appeals En Banc panel overturned the district court ruling that found the California “Large Capacity Magazine” ban unconstitutional. Enforcement of the ban was stayed, pending disposition of a petition for certiorari filed with the Supreme Court. The certiorari petition was granted, the Supreme Court vacated the Ninth Circuit En Banc judgement and remanded the case back to the Ninth Circuit Court of Appeals for further consideration in light of New York State Rifle and Pistol Association v Bruen. The Ninth Circuit remanded the case back to the district trial court, again to Judge Roger Benitez. Judge Benitez ordered both sides to file briefs regarding how the case should proceed in light of the Bruen decision. Judge Benitez has also clarified that the stay on enforcement of the ban remains in effect until the case is finally resolved.
Campos v Bonta is a suit challenging the DOJ extending the period for completing background check for firearms purchases. The DOJ has been taking more than 10 days to process without appropriate justification. The trial court ruled that the state could only extend the period for specific reasons, as listed in the statute.
Boland v Bonta is a new lawsuit challenging the California “Not-Unsafe” handgun roster. This case is still awaiting scheduling by the court.
Rupp v Bonta, a challenge to the California Assault Weapon Bans, had been pending the Bruen decision. This case has been remanded back to the trial court for further proceedings consistent with the Bruen decision.
Miller v Bonta, a challenge to the California Assault Weapon Bans, has been pending the Bruen decision. US District court for the California Southern District, judge Roger Benitez, had ruled the law unconstitutional. The Ninth Circuit Court of Appeals has vacated that ruling and remanded the case back to the trial court. Judge Benitez ordered both sides to file briefs regarding how the case should be handled in light of the Bruen decision.
Young v Hawaii challenges the state of Hawaii carry restrictions. The certiorari petition was granted, the Supreme Court vacated the Ninth Circuit judgement, and remanded the case back to the Ninth Circuit Court of Appeals for further consideration in light of New York State Rifle and Pistol Association v Bruen. The Ninth Circuit remanded the case back to the trial court.
Bianchi v Frosh challenges the Maryland ban on “assault weapons”. The certiorari petition was granted, the Supreme Court vacated the Fourth Circuit judgement, and remanded the case back to the Fourth Circuit Court of Appeals for further consideration in light of New York State Rifle and Pistol Association v Bruen.
Jones v Bonta: A three judge panel of the Ninth Circuit Court of Appeals has ruled the California age-based centerfire semi-automatic rifle purchase ban is unconstitutional and that “the district court erred in not enjoining an almost total ban on semiautomatic centerfire rifles” for young adults. The opinion states that the District Court erred in applying intermediate scrutiny and not strict scrutiny. The trial judge has ordered briefs regarding how this case should proceed in light of the Bruen decision.
Doe v Bonta is a lawsuit filed by the NRA to block the release of gun owner’s personal information to UC Davis and other, unspecified, “research organizations” due to SB 173. Information has already been given to UC Davis and accidentally released to the public. The honorable Larry Alan Burns, the United States District Court Judge hearing the case, has ordered supplemental briefs regarding the effects of NYSRPA v Bruen on the standard to be used in deciding this case.
Renna v Bonta on the California Unsafe handgun roster has been remanded back to the trial court. Currently calendared for March of 2023.
Baird v Bonta challenges the California restrictions on open carry of firearms. The US District court denied a petition for an injunction, so the state can continue enforcing the open carry law.
Nichols v Newsom is a challenge to the California laws against open carry of a firearm. The US District Court ruled the law constitutional and an appeal was pending at the Ninth Circuit Court of Appeals. The Ninth Circuit, following the Bruen decision has remanded the case back to the trial court.
Respectfully submitted,
David Smith
