Constitutional Law

After the Supreme Court’s landmark decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), a wave of challenges to gun  regulations—some new, some renewed—were filed around the country. One challenge was brought by Zackey Rahimi. Rahimi, who had previously been found to have committed “familial violence,” was charged under 18 U.S.C. § 922(g)(8), which prohibits individuals subject to certain domestic violence restraining orders from possessing firearms during the pendency of such orders. Initially, Rahimi pleaded guilty to the offense. But after Bruen was issued, Rahimi argued that Section 922(g)(8) and its restrictions on gun ownership placed on adjudged domestic abusers violated the Second Amendment. The U.S. Court of Appeals for the Fifth Circuit ultimately sided with Rahimi. In its view, “[t]he Government fail[ed] to demonstrate that [Section] 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 460 (5th Cir. 2023). The Government then sought, and was granted, certiorari. United States v. Rahimi, 143 S. Ct. 2688 (2023).

Gibson Dunn filed an amicus brief on behalf of the Giffords Law Center to Prevent Gun Violence before the Supreme Court in support of the Government in United States v. Rahimi. In so doing, Gibson Dunn stood on the side of those fighting to maintain the rights and safety of domestic violence survivors and opposed attempts to invalidate federal law prohibiting domestic abusers from purchasing and possessing firearms.

Drawing on the Giffords Law Center’s law and policy expertise, Gibson Dunn’s amicus brief urges the Supreme Court to reverse the U.S. Court of Appeals for the Fifth Circuit’s “dangerous” invalidation of Section 922(g), and argues that fundamental societal changes, including women’s enfranchisement, invite a nuanced and properly contextualized approach to constitutional analysis under the Bruen historical-analogical framework with respect to Section 922(g)(8). In sum, the brief asks the Court to reaffirm both that the Second Amendment is not a “regulatory straightjacket,” and that it does not require the government to sit idly by in the face of documented, historic, and pervasive threats to public safety by allowing adjudged domestic abusers to purchase and possess firearms.

Ghost guns are do-it-yourself projects that allow anyone to quickly and easily build fully functional and untraceable firearms, including military-grade assault rifles. In September 2020, Gibson Dunn filed suit on behalf of Giffords Law Center to Prevent Gun Violence and co-plaintiff, the State of California, challenging the federal Bureau of Alcohol, Tobacco, Firearms and Explosive’s (“ATF”) failure to sufficiently regulate ghost guns.

At the time, ATF had done very little to address the well[1]documented ghost gun epidemic in this country. Under the Biden administration, ATF initiated rulemaking directed at ghost guns, but the resulting Final Rule didn’t go far enough. The Final Rule left a significant and deadly regulatory gap by excluding many partially complete receivers—integral components for building a “ghost” AR-style rifle—from the definition of “firearm.” Specifically, it provided that a partially complete AR-style receiver is not a “firearm” so long as it is sold separately from jigs and other tools commonly used to convert the receiver into a fully functional AR-15. Because of this loophole, many AR-style receivers were purchasable by anyone without a background check—including minors, people subject to domestic violence restraining orders, and other prohibited purchasers.

In 2023, Gibson Dunn filed a motion for summary judgment, arguing that ATF’s actions (1) contravene the text and purpose of the Gun Control Act of 1968, which requires ATF to regulate all “firearms”; and (2) adopt arbitrary and capricious distinctions between categories of AR-style ghost gun products. On February 26, 2024, Gibson Dunn secured a significant victory when Judge Chen of the U.S. District Court for the Northern District of California entered summary judgment on its behalf. This decision marks an important step in closing a significant regulatory gap that previously enabled manufacturers and retailers to sell these deadly products without serialization or background checks. It is an important victory not only for our client but also in the nationwide fight against ghost gun violence.

Rabbi Levi Illulian moved into his current home in October 2022 and began hosting a variety of intimate religious gatherings to meet the religious needs of his family and friends. For example, he hosts weekly Shabbat dinners, celebrations for Passover, and prayers to mourn the loss of loved ones. For months, Rabbi Illulian hosted these gatherings without incident, always striving to be respectful of his community. All of that changed, however, in early February 2023, when the City of Beverly Hills received a complaint from a private citizen regarding Rabbi Illulian inviting family and friends to his home to pray. After spending nearly a month investigating the complaints, the City initially (and correctly) concluded the alleged violations were unfounded and closed its case.

That hiatus was short-lived, with the City reopening its investigation at the end of March 2023 after a disgruntled resident complained again regarding religious activities in the Rabbi’s home. Instead of disregarding what it had already determined to be unfounded complaints from a handful of residents who are hostile to Rabbi Illulian’s religious exercise, the City renewed its investigation with increased vigor at the end of March 2023. Invoking Orwellian tactics usually reserved for serious criminal investigations, City personnel engaged in multiple stakeouts of the Rabbi’s home over many hours and days. City officials not only tallied the number of individuals and cars coming and going from the Rabbi’s home, but also photographed his guests. Police officers even threatened to confiscate his property and issue him a citation for hosting a celebration on Halloween for his three-year-old son’s Upshernish—a solemn rite where a young Jewish boy has his hair cut for the first time as a symbol of his initiation into his formal study of the Torah.

In June 2023, the City issued the Rabbi a notice of violation, threatening civil and criminal proceedings against the Rabbi if he did not “terminate all religious activities” in his home. The Rabbi reached out to First Liberty Institute, which asked Gibson Dunn to represent the Rabbi to protect his right to exercise his faith in his own home with family and friends. Over the course of four months, Gibson Dunn sent several communications to City officials documenting the City’s harassment of the Rabbi and detailing his right to engage in religious exercise at his home, free from government burden and interference, under the First and Fourteenth Amendments of the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq. We demanded that the City withdraw its Notice of Violation and cease all harassment—making clear that we were prepared to sue the City to safeguard the Rabbi’s rights if needed. On November 29, 2023, the City informed us that they were withdrawing their notice of violation in full.

On January 6, 2021, the U.S. Capitol was attacked by violent insurrectionists protesting the results of the 2020 election and attempting to disrupt the peaceful transfer of power. On August 26, 2023, the Lawyers’ Committee for Civil Rights filed a lawsuit on behalf of eight Capitol Police Officers who had been violently assaulted, tear-gassed, bear-sprayed, subjected to racial slurs and epithets, and put in fear for their lives during the January 6 riot. The Officers brought their suit under 42 U.S.C. § 1985, the Ku Klux Klan Act, arguing that the individuals who planned, organized, and incited that unprecedented attack, including President Trump, should be held accountable.

In 2023, President Trump’s motion to dismiss the suit against him on the basis of presidential immunity was denied. President Trump appealed that denial to the United States Court of Appeals for the D.C. Circuit. Gibson Dunn represented the Officers for purposes of that appeal. The brief argued that President Trump was not protected by presidential immunity for the conduct alleged, because a conspiracy to use force, intimidation, and threats to prevent Congress from certifying the election results falls beyond the outer limits of official presidential duties. In December 2023, the D.C. Circuit agreed, affirming the District Court’s denial of absolute immunity and ordering preliminary discovery. President Trump elected not to challenge the D.C. Circuit’s decision before the Supreme Court. Gibson Dunn also has appeared before the Supreme Court to defend its clients’ interests in Trump v. Anderson, a case concerning Donald Trump’s disqualification from the Colorado presidential ballot. There, Gibson Dunn represented the Officers as amici and argued that Trump’s participation in the insurrection was unprotected by the First Amendment.

In recognition of the Firm’s work on this case and many others, the Lawyers’ Committee honored Gibson Dunn with the Robert F. Mullen Pro Bono Award, given annually to one law firm “for advancing the legal profession’s highest ideal of equal justice for all and for exceptional pro bono legal service.” Gibson Dunn is grateful for its longstanding partnership with the Lawyers’ Committee and will continue to proudly join their mission.

On July 25, 2022, a group of women, OBGYNs, and abortion providers filed an emergency Temporary Restraining Order (“TRO”) and lawsuit against the State of Wyoming and other parties to enjoin a statewide abortion ban that would go into effect following the U.S. Supreme Court’s landmark Dobbs v. Jackson Women’s Health Organization ruling. The court granted the initial TRO for plaintiffs. In September 2023, a team of Gibson Dunn attorneys joined the case to oppose a motion to intervene by legislators and co-sponsors of the Wyoming abortion ban.

Since that time, Gibson Dunn attorneys have worked alongside Wyoming lawyers to represent plaintiffs in the suit, which presents numerous challenges under the Wyoming Constitution, including under a unique provision guaranteeing citizens the right to control their own health care decisions. Gibson Dunn successfully moved for TROs enjoining the enforcement of Wyoming’s 2023 abortion legislation, which included a first of its kind ban on abortion medications. These injunctions remain in place today.

Gibson Dunn also defeated an effort by an anti-abortion advocacy group and state legislators to intervene in the case—a decision that recently was unanimously affirmed by the Wyoming Supreme Court. Gibson Dunn also briefed and argued a summary judgment motion seeking a permanent injunction and declaration that the laws are unconstitutional. Subsequently, the court certified constitutional questions to be resolved by the Wyoming Supreme Court. As a result of Gibson Dunn’s work, people in Wyoming and neighboring states (primarily Idaho and South Dakota) have been able to continue to access essential reproductive health care in the State of Wyoming.