Petitions of the week
on Apr 23, 2023
at 2:43 pm
The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
This week, we highlight cert petitions that ask the court to consider, among other things, whether to revive two federal gun restrictions struck down by the U.S. Court of Appeals for the 5th Circuit.
Both cases arise under the federal firearm statute, 18 U.S.C. § 922. Enacted by Congress in 1994, Section 922(g)(8) criminalizes gun ownership by anyone subject to a domestic-violence restraining order. Another provision enacted in 1986, Section 922(o)(1), bars the possession or sale of any “machinegun.” In a mass shooting at a concert in Las Vegas in 2017, a gunman killed 58 people and wounded 500 more using semi-automatic weapons equipped with “bump-stock” devices, which transform semi-automatic rifles into fully automatic, assault-style weapons. One year later, the Bureau of Alcohol, Tobacco, Firearms and Explosives interpreted the definition of machineguns under federal law to include bump stocks.
The challenge to the domestic-violence ban comes from Zackey Rahimi of Arlington, Texas. During a public argument in 2019, Rahimi pushed his girlfriend to the ground, dragged her to his car, and slammed her against the dashboard before firing a shot in the air to scare off a bystander. A Texas state court entered a restraining order against Rahimi and revoked his handgun license. In the months that followed, Rahimi was arrested for violating the restraining order, and he was charged with threatening another woman with a gun. In 2021, police searched Rahimi’s home after he was identified as a suspect in a series of shootings. They found a .45-caliber pistol, a .308-caliber rifle, pistol and rifle magazines, and ammunition.
Rahimi was indicted on a charge of violating Section 922(g)(8). After the judge rejected his argument that the law violates the Second Amendment, he pleaded guilty and was sentenced to to 73 months in prison, followed by three years of supervised release.
On appeal, Rahimi again contended that the domestic-violence ban violated his rights under the Second Amendment. The court of appeals initially upheld Rahimi’s conviction.
Soon after, however, the Supreme Court issued its landmark ruling in New York State Rifle and Pistol Association v. Bruen, which struck down New York’s concealed-carry law and clarified that modern restrictions on firearms bearing no resemblance to those in place when the Constitution was ratified likely violate the Second Amendment. That decision opened the door to new challenges to existing gun laws and regulations.
The 5th Circuit withdrew its decision in Rahimi’s case and ordered new briefing on the effect of Bruen. Earlier this year, the appeals court erased Rahimi’s conviction, concluding that because there is no historical analog to firearm restrictions on domestic abusers, Section 922(g)(8) violates the Second Amendment.
The bump-stock ban was challenged by another Texan, Michael Cargill, a gun salesman and advocate in Austin. Cargill purchased two bump stocks in 2018, during the public-comment period for ATF’s proposed regulation to interpret the federal statutory definition of machineguns to include the devices. When ATF’s final rule went into effect, Cargill surrendered his bump stocks to the government and went to federal court to challenge the regulation.
A federal district court rejected Cargill’s challenge, and a panel of three judges on the 5th Circuit affirmed. But the full court granted rehearing and reversed.
Over the dissent of three judges, two of whom were on the original panel that heard Cargill’s case, the full 5th Circuit ruled that ATF could not read the statutory definition of machineguns to include bump stocks. Federal law defines a machinegun as a gun that shoots multiple bullets “automatically” and “by a single function of the trigger” or any accessory that allows a gun to do so. The court of appeals reasoned that the text of that definition unambiguously excludes bump stocks, which leverage a rifle’s recoil to rapidly depress the trigger without the shooter having to pull and release his trigger finger. But even if the definition is unclear, the 5th Circuit concluded, it should be read to exclude bump stocks under the rule of lenity – a doctrine instructing courts to construe ambiguous criminal laws (Section 922(o)(1) carries a prison term of up to 10 years) in the manner most favorable to defendants.
In both United States v. Rahimi and Garland v. Cargill, the government the justices to weigh in. The domestic-violence ban is consistent with the test the court outlined in Bruen, the government argues, because Section 922(g)(8) only kicks in once a court has deemed someone to be a credible threat to their partner or child, and there is a long historical practice of limiting gun ownership by people who pose a threat to the safety of others. Likewise, the government defends ATF’s interpretation of Section 922(o)(1) as including bump stocks, which fall unambiguously within the federal definition of machineguns because the devices enable a gun to shoot multiple bullets automatically with one squeeze of the trigger. The government emphasizes that the justices previously declined to review three separate rulings by the U.S. Courts of Appeals for the 6th, 10th, and District of Columbia Circuits that rejected challenges to the bump-stock regulation.
A list of this week’s featured petitions is below:
United States v. Rahimi
Issue: Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
VNC Corporation v. Lang Van, Inc.
Issues: (1) Whether traditional due process principles apply to the exercise of specific personal jurisdiction over defendants based on their universally accessible website or mobile application; and (2) whether traditional due process principles apply to the exercise of specific personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2).
Frese v. Formella
Issues: (1) Whether the First Amendment tolerates criminal prosecution for alleged defamation of a public official; and (2) whether New Hampshire’s common law of civil defamation is too vague to define a criminal restriction on speech, particularly where the state authorizes police departments to initiate prosecutions without the participation of a licensed attorney.
Garland v. Cargill
Issue: Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”