NRA-ILA’s Office of Litigation Counsel has been busy fighting for our members’ rights in courtrooms across the country. And things haven’t slowed down since we won New York State Rifle & Pistol Association v. Bruen at the United States Supreme Court last summer. Since then, ILA has filed several new cases, and continued the fight in many existing cases. This newsletter covers ILA’s efforts to defend your freedoms in court over the winter and spring of 2022-2023.
The action didn’t stop after the Supreme Court decided that Americans have a right to carry a firearm for self-defense in Bruen. New York blatantly disregarded the Supreme Court’s decision when it passed the mistitled Concealed Carry Improvement Act in the days following the Bruen decision. With that statute, the state replaced one unconstitutional, discretionary law with another unconstitutional, discretionary law. It also increased the application requirements and gave the licensing officer the ability to extend their deadline to process the application indefinitely. ILA, and a number of others, promptly challenged that in federal court.
ILA challenged Delaware’s new so-called “assault weapon” and “large capacity magazine” bans. Rather than focusing on issues that will address actual criminal conduct, the state chose to mislabel and ban commonly owned firearms and magazines. It’s even worse that the state implemented these bans after the Supreme Court’s Bruen ruling—fully knowing that there is no historical tradition of regulating these common arms and that the bans are unconstitutional. The court declined to preliminary enjoin the laws from taking effect in March, but ILA is continuing the fight.
ILA also filed a lawsuit challenging M-114 in Oregon, which implemented a mislabeled permit-to-purchase-a-firearm requirement—that does not actually allow one to purchase a firearm—and banned the possession of magazines capable of holding more than 10 rounds of ammunition. That lawsuit was supported by several local law-enforcement agencies throughout the state who informed the court that there was no infrastructure in place for them to process permits and that there would effectively be a ban on firearm transfers. That prompted the state to concede that the permit-to-purchase requirement should not take effect until a functioning system for processing permits could be put in place. The case is set to go to trial this summer.
ILA also sued New Jersey, again. In October, a federal judge in New Jersey permanently enjoined New Jersey’s justifiable need requirement in an ILA case. The state promptly responded with A4769, which declares the entire state to be a “sensitive place,” increases permit fees, uses social-media posts as grounds to deny permits, and requires gun owners to acquire insurance that does not appear to exist in the state. ILA immediately filed a lawsuit challenging that, and obtained a Temporary Restraining Order that prohibited the state from enforcing the prohibitions on carrying in most of the so-called “sensitive places.”
ILA also sued Illinois after the lame duck legislature banned so-called assault weapons and large capacity magazines. The lawsuit points out that Americans own approximately eight million more semi-automatic rifles than they do F-150 pickups, which are the most commonly owned vehicles in the country. And approximately half of all privately-owned magazines in the United States are capable of holding more than 10 rounds of ammunition. Because these items are so common, they cannot be banned under the Second Amendment.
And rounding out the new lawsuits, an ILA-backed suit was filed challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) unlawful rule on stabilizing braces in February. ATF can only apply federal statutes; it can’t rewrite them. But that is precisely what it did in the brace rule. Even worse, ATF had determined that equipping a firearm with a stabilizing brace did not turn it into a short-barreled rifle several times over the last decade. This about face is arbitrary and capricious and not in accordance with the law, the lawsuit argues.
Continuing the fight
ILA also continued the fight in its other cases. The Fourth Circuit Court of Appeals heard oral arguments in Maryland Shall Issue v. Hogan, which challenges Maryland’s Handgun Qualification statute under the Second Amendment. That case has been ongoing since 2016. The Ninth Circuit heard oral arguments in a case where an environmental group claims that hunting with traditional lead ammunition is disposing of solid and hazardous waste under a federal environmental statute. That case has been ongoing since 2012.
And ILA filed appeals in several cases. It asked the entire Eleventh Circuit to rehear a case challenging Florida’s ban on transferring firearms to young adults after the court issued a flawed decision upholding the law. ILA also appealed two California cases to the Ninth Circuit Court of Appeals. One case challenges a California law that requires the California Department of Justice to turn all gun owners’ personal identifying information to universities for “research” purposes. The second challenges a California law that bans firearms advertisements that may be attractive to minors under the First Amendment.
Friend of the court cases
A few appellate courts ruled favorably in cases where ILA filed friend of the court briefs. The Florida Supreme Court upheld the state’s preemption statute’s penalty provision, which imposes a personal fine on local lawmakers who pass preempted gun-control laws. And the Fifth Circuit Court of Appeals struck the ATF’s rule banning bump stocks as machineguns, because Congress—not the ATF—decides what the law is.
ILA is also waiting on rulings from the Second Circuit Court of Appeals in two cases that it filed amicus briefs in. The first is a Fourth Amendment case in which the plaintiff was wrongfully arrested and searched based solely on the fact that he had a license to and was carrying a firearm. The second case challenges a New York law that effectively declares the firearms industry to be a public nuisance and encourages lawsuits to be filed against the industry for unlawful third-party actions.
Please stay tuned to www.nraila.org for future updates on NRA-ILA’s ongoing efforts to defend your constitutional rights.