Today was the last day of the October Term of the Supreme Court. Justice Breyer retired effective 12 noon today and we now have Justice Ketanji Brown Jackson as the most junior Associate Justice. Replacing one liberal with another liberal will not change the Court. Unless I am mistaken, about the only thing that may change is that in cases where Justice Sotomayor was the sole dissenter she probably will now have a co-dissenter. I almost said co-conspirator. Oops.
The impact of NYSRYPA v. Bruen was felt today on a number of cases. Four cases were granted certiorari, the judgement of lower courts vacated, and were remanded to lower courts for reconsideration in light of the Bruen decision. (It is kind of weird that we now refer to this case by the loser’s name and not that of the winner.)
Two of the cases involved restrictions on magazine size. This included Association of New Jersey Rifle and Pistol Clubs et al v. Brunk et al which was remanded to the 3rd Circuit for reconsideration. This was both a Second Amendment and a Takings case. The other case is Duncan et al v. Bonta et al which was remanded to the 9th Circuit Court of Appeals. This case was originally a win in the 9th Circuit until it was reversed En Banc.
As would be expected, Young v. Hawaii, a carry case, is being remanded to the 9th Circuit for reconsideration. This case directly challenged the 9th Circuit’s ruling that there was no right to carry a firearm outside the home.
The fourth case is remanded to the 4th Circuit Court of Appeals and involved the State of Maryland’s ban on modern sporting rifles. Bianchi et al v. Frosh sought to determine whether they could be said to be “arms in common use” which I would argue that they are. This case was brought by the Firearms Policy Coalition among other. Congratulations to Adam Kraut who was one of the attorneys on this case.
In addition to these cases, both challenges to the bump-stock ban are still surviving. Neither have been granted certiorari nor have they been denied it. These cases are Aposhian v. Garland out of the 10th Circuit and Gun Owners of America et al v. Garland et al in the 6th Circuit. In another bump-stock case, the 5th Circuit issued an order vacating Cargill v. Garland et al and ordering an En Banc rehearing. They did this on June 23rd after the Bruen decision.
Finally, the Court ruled against the EPA in West Virginia et al v. EPA et al. This case involved the power of an agency to make rules. The Court said an agency must point out to where Congress gave them clear authorization to make rules. This is considered a “major questions” case which means courts should not defer to agency interpretation where there is “vast economic or political significance.” Applied to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, this could impact the forthcoming rule redefining a receiver and other things. I have only read the syllabus of this case so will have to dig deeper.
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